Courtroom Tips from a Former Prosecutor

Summary

Podcast Summary: "Courtroom Tips from a Former Prosecutor"

Texas Family Law Insiders | Host: Holly Draper | Guest: Emily Derone | January 15, 2025

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Main Theme & Purpose

This episode features attorney Emily Derone sharing actionable courtroom strategies and advice for family law attorneys drawing from her unique experience as a former prosecutor. Host Holly Draper leads a detailed exploration of trial preparation, courtroom conduct, handling witnesses, evidence selection, and time management in family law practice, with practical tips tailored to new and seasoned attorneys alike.

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Key Discussion Points & Insights

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1. Transitioning from Criminal to Family Law Practice

Differences in Courtroom Dynamics

• Evidence Handling:
  • In criminal practice as a prosecutor, Emily learned to "almost never object to evidence coming in" (01:26), emphasizing transparency for justice, not for a client.
  • In family law, the focus shifts: "Sometimes we try to keep evidence out... I'm going to do everything in my power to try to keep it out” (01:56).
• Role of the Jury:
  • Criminal law often involves juries; family law typically does not (02:48).

Key Takeaway:

• Adapting courtroom style by case type is critical. Knowing when to be inclusive or exclusive about evidence is central to effective advocacy.

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2. Building Courtroom Confidence

Tips for New Attorneys:

• Master the Rules: “Texas rules of evidence... are drilled into my head. I can spout them off at the drop of a pen.” (03:05)
• Courtroom Familiarity:
  • "Knowing your courtroom, knowing how to handle a courtroom, knowing the staff, building a rapport..." (03:23)
  • Confidence comes from preparation: understanding the court's tech setup, staff, and norms (03:33).
• Observation:
  • Shadowing mentors, observing hearings, and arriving early at court builds familiarity and confidence (04:18).
  • “Getting there early, you have a chance to check out the technology in the courtroom. You have a chance to look around..." (04:38)

Memorable Quote:

• “You are used to sitting there, even if you’re sitting there silently.” (05:06)

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3. Hearing Preparation

A. Preparing Clients for Direct Examination

• Start with Priorities:
  • Emily always identifies and writes down “the three most important things” for each hearing, using them as the nucleus for all questioning (00:00, 06:48).
• Question Rehearsal and Witness Training:
  • Focus on courtroom communication: "We don’t answer questions... in court the same way you do in a normal conversation. You shouldn’t talk over people." (07:10)
  • Teach preparedness—answer structure, responding to objections, and avoiding a rehearsed appearance on the stand (08:43).

Notable Guidance:

• On scripting answers: “You want to write it out once and feel how it feels to answer that question perfectly. Great... but then I want you to throw it away and not look at it again.” (08:43)

B. Preparing Third-Party Witnesses

• Keep It Natural:
  • Avoid over-prepping: “I have a conversation with third party witnesses... but I try to have just one conversation with them on purpose..." (09:38)
  • Maintains credibility and avoids appearing coached.

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4. Mastering Cross-Examination

• Strategic Focus:
  • Prepare questions but don’t get sidetracked: “Otherwise you end up on a wild goose chase about things that don’t matter... Who cares? It doesn’t matter. I’m not going to cross examine you on that.” (11:14)
  • Center cross-examination on “the three most important things” that further your client’s case (11:40).

Client Communication:

• Manage expectations about what is and isn’t important: “Part of that prep sometimes needs to be explaining to our clients: look, we’re not going to talk about X... because Y and Z are so much more important.” (13:07)

Handling Surprise Witnesses:

• Evaluate necessity for cross: “Do they need to be cross examined?... I’m not going to bash your mother on the stand because she’s not a party to this case..." (15:07)
• Note-taking strategy: divide key testimony and potential follow-up areas for quick referencing (15:55).

Practitioner’s Insight:

• “I separate out their testimony from my three most important facts and I just ask them about those things, not about those other things that they testify about because again, it's not my case, I'm not going to chase their rabbits.” (16:56)

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5. Prepping Clients for Cross-Examination

• Teach Process, Not Scripts:
  • “I spend the majority of my time prepping them for cross, spent on prepping them how to handle cross. How do you answer the questions?” (19:10)
  • Prepare them to handle leading questions, emotional topics, and aggressive counsel.
• Practice with Firm Colleagues:
  • Have someone else “be the bad guy” in practice for hot-headed or sensitive clients (20:35).

Empowerment:

• “No matter how long I sit and think, I'm never going to come up with every single cross examination question they're going to get.” (19:10)

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6. Exhibit Selection and Evidence Management

• Exhibit Minimalism:
  • “I think quality is more important. I don’t need 30 pictures of you with your kids. I want one picture so the judge knows what they look like.” (22:57)
• Tie to Main Points:
  • Choose exhibits that address “the three most important things” and are easily admissible.

On Voluminous or Problematic Evidence:

• For lengthy audio/video: Publish a critical snippet and advise the court the full version is in evidence (25:21).
• For large documents: Direct the judge to key pages; know the judge's likelihood to actually review extraneous material (26:10).

Tactical Use of Un-admitted Documents:

• Even if not admissible, such as a police report:
  “The judge knows I have a police report and that it says the opposite of what they are saying... is truly a police report because they'll see the logo at the top, they'll see the badge at the top.” (27:41)

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7. Strategies for Severe Time Limits in Hearings

• Practice Makes Perfect:
  • Time your preparation, account for “an extra minute or two” as things often go longer in court (29:15).
• Prioritize Key Points:
  • Always cover the most crucial facts first: “I always start with the most important facts first because if I run out of time... that clock stops and you don’t get to say a word.” (29:35)
• Know Your Judge and Local Rules:
  • Gauge court strictness in advance: “Knowing your judge, your county, the local rules... can completely wreck your case if you don’t know those things.” (30:58)

Memorable Anecdote:

• Holly recalls an attorney squandering their time on opening statements and background, running out before any important issues were addressed (30:07).

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8. Jury Trial Tactics in Family Law

Voir Dire (Jury Selection):

• “Just get people talking. That is number one goal... The people who talk get cut. The people who talk get to go home.” (33:53)
• Emphasize rapport and understanding juror backgrounds and perspectives.
• Ask about their experiences related to divorce, parenting, or relevant case themes.

Trial to a Jury vs. Bench Trial:

• Jurors are more emotionally invested than judges.
• “They need the full story. They need to know emotionally why they should like your client more than the other one.” (36:57)
• Use storytelling and relatable themes to connect with jurors; a technical, law-only approach won’t suffice.

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Notable Quotes & Memorable Moments

• On Preparation:
  • “I start every case by taking whatever my three most important things are and writing them down on a piece of paper. Every question stems from those things.” — Emily Derone (00:00)
• On Rapport:
  • “Those people have the judge's ear. And so if you're being kind of sassy to them... those things are going to hurt you.” — Emily Derone (03:23)
• On Client Prep:
  • “If they're telling the truth, it shouldn't appear rehearsed and they should always be telling the truth.” — Emily Derone (08:43)
• On Cross-Examination:
  • “This is not their case. This is my case. We are going to handle ourselves in a way that we see fit, not correcting what they've done wrong.” — Emily Derone (11:45)
• On Jury Trials:
  • “They need to know emotionally why they should like your client more than the other one. Not why they should rule for them, not why your client's right under the law... they're going to be ruling with their heart.” — Emily Derone (36:57)

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Timestamps for Important Segments

• Differences between Criminal and Family Law Evidence Handling: 01:26
• Building Confidence in Court & Observation Advice: 03:05—05:56
• Direct Exam Prep Strategy: 06:48—08:30
• Cross-Examination Fundamentals: 11:14—14:43
• Surprise/Third-Party Witness Handling: 15:07—17:48
• Client Prep for Cross-Examination: 19:10—21:32
• Strategic Exhibit Selection: 22:57—24:55
• Handling Voluminous or Late Evidence: 25:21—27:41
• Severe Time Limit Strategies: 29:15—33:15
• Using Voir Dire and Jury Psychology: 33:53—36:43
• Bench vs. Jury Trial Dynamics: 36:57—38:30

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Closing Thoughts

This episode balances strategic courtroom advice with an understanding of the psychological and human elements involved in family law litigation. Emily’s emphasis on preparation, prioritization, and emotional intelligence—both with clients and juries—is a must-listen for litigators seeking to raise their advocacy in Texas family courts.

Transcript

[Emily Derone]

So I start every case by taking whatever my three most important things are and writing them down on a piece of paper. Every question stems from those things. That way, when you're limited on time, I'm not scrambling to figure out where I go. Or does this question matter? What can I skip? I know. Here are the things that I need to prove in this hearing.

[Podcast Announcer]

You're listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas.

[Emily Derone]

Now.

[Podcast Announcer]

Now, here's your host attorney Holly Draper.

[Holly Draper]

Today, I'm excited to welcome back our own Emily Derone to the Texas Family Law Insiders Podcast. Emily is an attorney at the Draper law Firm, and we had one previous episode with her before. So if you didn't catch that one, you definitely should. Lots of great information to be had. Emily worked for many years in the DA's office before she joined us at the Draper Law Firm and switched to family law. So because of that, she has a lot of really unique courtroom experience that I thought would be helpful to share with other family lawyers out there who maybe would like to be a little bit better in the courtroom. So thanks for joining me today.

[Emily Derone]

Thanks so much for having me.

[Holly Draper]

So I know that practicing criminal law, practicing family law, not exactly the same. But what is kind of different about being a family lawyer in court and being a criminal lawyer? Just training in court.

[Emily Derone]

Sure. So as a criminal lawyer, as a prosecutor, at least in that side of the field, I was trained and in practice to almost never object to evidence coming in. It's a different playing field. And so when you represent the state, you have all of the power in the courtroom. And it was my belief that more evidence is better. Right. The jury should know everything. The judge should know everything. And once they know everything, assuming it's all, you know, truthful and not fabricated, that's when they can make the best decision. It was less. You know, you're not fighting for someone to win. You're fighting for the public to be safer and for justice to be served. But you're not serving a client. You're not working for someone, and you're not fighting for one side to win over another. So it definitely changed how you handle things in court. Obviously, in family law, sometimes we try to keep evidence out. Sometimes we try to let evidence in that you otherwise wouldn't. You know, I. I object to certain things that I otherwise would let in. Sometimes it's to burn time in a short hearing because I know they need to build their authentication and to build their foundation. Sometimes I object because I know it can hurt my client. And even though under the law it's probably admissible, I'm going to do everything in my power to try to keep it out. And so I think that's a huge difference. The other major difference being that in criminal law, you're almost always in front of a jury. You do sometimes go to a judge, and but most cases, if they have it settled, they go to a jury. In family law, of course, that's different. We almost never go in front of a jury. It's much more rare.

[Holly Draper]

So what do you think are the biggest takeaways from being in a criminal courtroom that you can bring with you into a family law courtroom?

[Emily Derone]

Sure. Well, first and foremost, the Texas rules of evidence, right? They are drilled into my head. I can spout them off at the drop of a pen. I and that's helpful because when a judge asks, what's your foundation for that? Or why do you think you can do that? I can tell them pretty quickly the other, and I think even the bigger point is confidence in a courtroom. Knowing your courtroom, knowing how to handle a courtroom, knowing the staff, building a rapport with those people, whether it's the court coordinator, the, the court reporter or the bailiff, those people have the judge's ear. And so if you're being kind of sassy to them, or you don't know how to use things in the courtroom, or you come in on your phone when you know this judge has a strict no phone policy, those things are going to hurt you. And part of that also is that confidence. I know I can walk into a courtroom, I know how to use my computer in that court. I know how to make the tech work. I know where things go and I know where I belong in that room, which means gives me the confidence to represent my client without those nerves that everyone has walking into a courtroom.

[Holly Draper]

So for young lawyers out there who are didn't get the opportunity to be in courtroom every day like you did with being in the DA's office, how do you think they can get that comfort level for the courts they're going.

[Emily Derone]

To appear in, I think the easiest way is to go and sit second chair, find a mentor, find someone that you trust or someone that you know is well respected and say, hey, do you have a hearing? I can come sit and watch. If they're trying it alone or having the hearing alone, maybe they'll let you sit with them. They're, maybe they'll let you take notes or give them Recommendations, things of that sort, but knowing people to reach out to and just go watch, whether it's at the table next to them or in the back of the courtroom, that's huge. They'll probably introduce you to the judge if they have that rapport, or they'll show you the courthouse or how the courtroom works. And even on top of that, get to the courthouse early. Do not be late, because then not only do you not have the confidence in the courtroom, but then you're nervous because you're late. And getting there early, you have a chance to check out the technology in the courtroom. You have a chance to look around, figure out where you belong, where your client belongs, so that you're not trying to figure that out at the last minute while you're scrambling, running into court late. But I think getting there early to check out the room and finding a mentor or a couple who will let you tag along for hearings, just to observe, that gives a whole level of confidence because you are used to sitting there, even if you're sitting there silently.

[Holly Draper]

But even if you don't yet have a mentor, you haven't found one or just haven't found the right fit. These courtrooms are open, so it's real easy to go sit down. At least the academies where I practice at 9am on any given day, you could have five different opportunities to go sit in a courtroom and watch. And you'll see some good lawyers, and you'll see some bad lawyers, and the judge will see you. It gives you just enough. The more you're in there, the more comfortable you're going to be.

[Emily Derone]

Absolutely. And I've seen judges ask in between hearings to people sitting in the back, hey, what are you here for? And if they say I'm an intern or I'm learning, they'll call them up, introduce themselves, see if they have questions. And so now, not only have you sat in to watch things, you've put your name to your face, and now that judge is going to maybe not remember your name the next time, but they're going to recognize your face and some will remember your name and know that you are trying to be a good attorney, and they're going to give you the opportunity to do so.

[Holly Draper]

So let's dive a little deeper into hearing prep. And I'm sure in a female context, there's typically more prep work than you might have in the DA's office, where you're just being thrown into court. But so when you're prepping for your family law case, let's Start with direct examination. How do you prepare your client for direct examination?

[Emily Derone]

So I start all hearing prep by making a list of my three most important things in every hearing. Obviously, in family law, you need to prove certain things. You need to talk about possession and access. You need to talk about child support. Right. But cases have different things that matter. Maybe it's drug abuse or family violence. So I start every case by taking whatever my three most important things are and writing them down on a piece of paper. Every question stems from those things. That way, when you're limited on time, I'm not scrambling to figure out where I go, or does this question matter? What can I skip? I know here are the things that I need to prove in this hearing. Once I've drafted my questions and have those ready to go, I meet with every single client and go through those questions. But more importantly, I don't just go through the questions, but I prep them on how to answer a question in court. Because we don't answer questions. Or you shouldn't answer questions in court the same way you do a normal conversation. You shouldn't talk over people. That's the most basic. Right. It's a quick way to get yelled at by a court reporter. But everyone does it in normal conversation. We all start talking before the other person stops. That shouldn't happen in a courtroom. Knowing to stop talking when an attorney stands up because they're going to object. Those are the things that I think judges and court reporters appreciate. When your client knows. Also when my client knows how to answer a question and not just how to answer the questions I'm going to ask if things shift or what is important changes, even just the slightest. They know how to answer my questions. And so they're not scrambling, thinking, well, we didn't practice this one. I don't know what to say. They're thinking, okay, I know how to answer these questions appropriately because we've talked. How do you speak in court? How do you answer? And then they can handle themselves. And I think that's huge for clients.

[Holly Draper]

So I've seen clients over the years. There's a certain type of client who wants to write out every last word that they're going to say in an answer. How do you feel about clients doing that?

[Emily Derone]

I tell them they can do it once, and then they need to throw that piece of paper away. I think that people, some people feel more comfortable if they have thought through their answers. But I don't want them reading that answer 100 times and trying to answer it the same way, because I don't read my questions word for word necessarily. Uh, the way I ask a question may be different, even though what I'm asking is the same. And if they've just memorized a script effectively, they're going to be thrown. I also don't ever want a client to look rehearsed on the stand because if they're telling the truth, it shouldn't appear rehearsed and they should always be telling the truth. And so I get it. You want to write it out once and feel how it feels to answer that question perfectly. Great. More power to you. I want you to feel confident up there, but then I want you to throw it away and not look at it again.

[Holly Draper]

So with a third party witness, if you're lucky enough to have enough time to get to Colony, how do you prepare for those witnesses?

[Emily Derone]

So I personally do not run through questions with third party witnesses. I have a conversation with third party witnesses. I try to have just one conversation with them on purpose, but I try to have one conversation with them where I ask them all of the similar questions that I would be asking in a courtroom, but without telling them. This is everything I'm going to ask you. And that's because almost every time I bring a third party witness, the other side says, well, how long did you talk to her? How many times did she prep you? And the answer should never be, well, she's gone through her question six times with me. Right. I don't want it to appear that I have coached them or prepared them in a certain way. I want them to look unbiased and like they are just there to tell their truth. And so, oh, she called me once, we talked for five minutes, and that was. It gives a much different appearance than, we've talked six times for an hour each. And so for third party witnesses, I do not provide them with my questions. I do not ever run through an exact question list because of that. I don't ever want that appearance.

[Holly Draper]

Let's shift to the other side and talk a little bit about cross. If you're like me and probably a lot of people who became lawyers, cross is, I know my absolute favorite part of being in court. And I think it's an art to be good at cross and to be able to catch people. You definitely have to think on your feet a lot better on cross, even if you have your questions prepared, which I certainly recommend, having as many as you can prepared. But so what are some tips when it comes to crossing the opposing party and how do you prepare for that, sure.

[Emily Derone]

It's my favorite part too. I think it's a really fascinating part of trial. People have different theories on cross examination and how to handle it. I agree that you should have questions prepared. Otherwise you end up on a wild goose chase about things that don't matter because your client's whispering in your ear, that's not true, that's not true, or that's not how it happened. And then you feel like you have to correct things that are otherwise inconsequential. Right. I picked them up at 5, not at 6. Who cares? It doesn't matter. I'm not going to cross examine you on that. And so I prepare my cross examination questions for an opposing party the same way I prepare my direct what is most important? What are my three things that I need to focus on? And how do I get this person to agree with my client with what my client has already said? The next part of it that I do is what are they going to talk about that I need to disprove? Because there are things that you're going to need to show the court that wasn't true. But that is secondary to me because this is not their case. This is my case. It is our case. We are going to handle ourselves in a way that we see fit, not correcting what they've done wrong. And I think that's where a lot of people get lost, is they try to chase all of these arbitrary things that another side is trying to throw out as important instead of focusing on their case. And then you lose what matters because the judge zones you out or you run out of time and either option is bad. So I do the same thing as my client as I do with my client. I prepare the three most important things I prepare across for that. I kind of think through what their case in chief is going to be or what their main arguments are going to be and how to disprove those things. And I do always leave a minute or two of my time to cross on things if they come up that are significantly important. I would rather have extra time, though, than asking questions about things that don't matter. I think cross examination draws the judge's attention to certain things and if it's inconsequential, I'm not going to ask about it because I don't want the judge to think I think it's important.

[Holly Draper]

Sometimes can be difficult when we have clients who adamantly think that those inconsequential things are important and they want you to ask about that because they think whatever it was is going to make or break their case. So part of that prep sometimes needs to be explaining to our clients. Look, we're not going to talk about X, at least not a lot, because Y and Z are so much more important. And if we get everything out we want on Y and Z, then, you know, we have time. We can deal with X. Yeah, absolutely.

[Emily Derone]

I think a huge part of that is making sure your client understands why you're not asking about things that they feel bad about because they know it's not true. But that simply don't matter to us, to the judge. It matters to our client. But you're right, sometimes a huge part of this is just explaining to them. I know it's important and if I need it come back to it, I will. We get a certain set amount of time and I'm going to focus on what's going to actually move this case in the direction as opposed to just proving that they're a liar. Yeah.

[Holly Draper]

And sometimes it's not even the person who lied about something. It can be they had an affair and they, you know, they did whatever and the person is really hurt by that and it is very important to them. But as family lawyers, we know that the judge just heard about 500,000 affairs this year alone, and yours probably isn't that different. And at the end of the day, the facts that you told me aren't going to impact whether or not he gets to see the kids. So, you know, I think there's a lot of expectation managing that maybe needs to happen in situations like that.

[Emily Derone]

Absolutely. They're used to watching television and Court TV and that some people need an explanation that that's really not how it works.

[Holly Draper]

Yeah. So what about witnesses that you did not anticipate were going to be there to testify for the other side and now you're going to cross them. What do you do to mount an effective cross in that situation?

[Emily Derone]

I think that the most important first question is to ask, do they need to be cross examined? Not every, every witness requires cross examination. If husband calls his mom to say he's such a great dad, I'm probably not going to waste any time cross examining her unless I know she has personal knowledge of something really bad happening. Otherwise she's his mom and she's going to say he hung the moon and he's perfect and he's a wonderful dad and she wouldn't change anything about him. I also, I'm not going to bash your mother on the stand because she's not a party to this case, she does not deserve to be cross examined the way that you may. And it's just probably not going to help anyone. It's just going to burn my time. If I do think that someone is important to cross, I do the same thing of focusing on my important facts. And again, that's because I don't want to chase a rabbit. I don't want to burn my time talking about things that actually don't matter to my case but that they are trying to make matter. And so I will listen to their cross. And as I'm listening, the way I use my notebook, some people will notice is that I draw a line down the middle and I write kind of what they're testifying to on one side the important stuff. And, and if I want to cross examine or ask another question or close or ask my clients about it, I write it on the other side of the page. That way I keep a list of oh, this is important, come back to it or I didn't love she said that, but it does not deserve a follow up question. It allows me to look at my page more quickly and succinctly and it also allows me to pull out those same themes that I'm focusing on of oh, this was something that matters. In this case. It's always going to be on the fly. Like you said, you won't know every witness they're ever going to call. In some cases our client may know beforehand or have an inkling. I always ask our clients, hey, if he had all the time in the world, who would he put up there? Or who would she call as her, you know, as her witness? What friend, what family member? Sometimes they tell you, sometimes they say they don't know because they don't want to know. And sometimes they say they don't know because they really have no idea. But if it's a true surprise witness that I had no implication was going to come, that's how I do it, is I separate out their testimony from my three most important facts and I just ask them about those things, not about those other things that they testify about because again, it's not my case, I'm not going to chase their rabbits.

[Holly Draper]

And sometimes, you know, there may be somebody that's showing up on the other side and we don't have the foggiest idea who this person is. Our client has never mentioned them before. If you have time, I always trying to lean over and be like, who is this person? What are they going to say? What do I need to know? If you don't have time to actually speak it because we've already started and you missed your chance. Then pushing over a piece of paper, tell me what I need to know about this witness. Because yes, you'll get a little bit out of direct, but if your client has information, you definitely want to have it.

[Emily Derone]

Absolutely. And I've, I've walked up to witnesses and introduced myself and asked who they are. If you're waiting for another hearing and you see them outside and you know they came with the other party but they're not with them at that time, I'm never going to approach if they're with the other party. But if they're not with them at that time, I may go up and introduce myself. Maybe it's a counselor, maybe it's a doctor or someone from the school. And they're going to tell me who they are and why they're there. If it's a family member, of course they're not going to give me much information, but I'm always going to go over and introduce myself, tell them my name, tell them that I represent the other party, see if they wanted to provide me with any information. Because worst case scenario, they tell you no. Best case scenario, they tell you exactly why they're there. And now you have an extra five minutes to prepare your cross examination.

[Podcast Announcer]

This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non parent custody cases, jurisdictional issues, property division, standing conservatorship, possession and access termination, parental rights and grandparent access. For more information, visit DraperFirm.com or call 469-7156, 6801.

[Holly Draper]

So changing it up on cross a little bit. Let's talk about prepping your client for cross. Walk us through what you do to get your client ready.

[Emily Derone]

So it's kind of similar to how I answered the end of the direct examination for my client. And that's teaching them how to answer cross examination. No matter how long I sit and think, I'm never going to come up with every single cross examination question they're going to get. Because every attorney asks things differently, focuses on different things. I may have an idea of what the other side's case may be, but if I tell them here's what they're going to ask and then the other side asks something completely different and they don't know how to answer, it's going to cause them a moment of panic. And I don't ever want a client to feel panicked on the Stand. It's stressful to be up there no matter how well prepared you are. But I don't want panic to be the emotion. So I spend the majority of my time prepping them for cross, spent on prepping them how to handle cross. How do you answer the questions? What kinds of questions are you anticipating? Do you give more information than they're asking for or only answer their question? And we spent a lot of time talking about that, about what a true yes or no question is and how to handle that whole process as opposed to. Here are the specific questions I anticipate because like I said, I can never anticipate every question you're going to get on cross examination on really contentious cases, I may pull in another attorney at the firm and say, hey, here are the facts. Can you prep them for cross? If I know that opposing party is, or opposing counsel is, you know, really, really, really skilled at cross or extra aggressive on their cross, I may pull someone in if I know our client needs a little bit of prep work. But oftentimes we just discuss how to handle it as opposed to the questions.

[Holly Draper]

And sometimes there's clients that are a little hot headed and you know, you may have concerns that this person is going to get really riled up or they're going to go after opposing counsel to, you know, are you with them? Those sorts of things. So that's when it can really be helpful to have somebody besides you absolutely. Come in to cross them who could be the bad guy. And you know, to try and get the clients in practice not exploding when you get asked about whatever the hot butt issue might be in that particular case.

[Emily Derone]

Exactly. And I feel the same way about highly sensitive or emotional clients is if you're just sobbing through a cross, you can't possibly answer effectively. And so clients who are highly sensitive or incredibly emotional and have a hard time answering, I like to do it there too. But you're right, it's definitely important with the clients who are hot headed to make sure that they know how to handle it.

[Holly Draper]

One of the things with how to answer that I think is really important for attorneys to explain. It's not always a yes or no. And attorneys, especially ones who are really good or really aggressive and cross, are going to try and pin you down that it's a yes or no question and don't let somebody convince you it's a yes or no question. It's not a yes or no answer. And you know, I've had judges say it's a yes or no question and that's a little bit more problematic because you gotta how are we gonna politely tell the judge? It's maybe or it's I don't know or whatever the case may be. Another important one I think is, you know, we tell clients, most likely you're going to be getting these yes or no questions. They're going to be leading, they're going to be trying to pin you down on whatever. But there are some lawyers that you know, it's possible you get a lawyer who doesn't do that and being ready, what happens if you get the open ended question and guess what, you now you get to tell your story because that lawyer opened the door for you to do so and helping them understand kind of the difference there.

[Emily Derone]

Absolutely. Knowing how to answer the questions in one.

[Holly Draper]

So next our prep. Let's talk about exhibits. How do you decide what exhibits you want to use in court? Particularly if you're talking about a limited time like temporary orders.

[Emily Derone]

So I go back to that three most important things. What exhibits are going to get me back to that the fastest and the most effectively and obviously that I can get in that are truly easily admissible. There are exhibits I can fight to get in and maybe we find a loophole, maybe we don't. But some of them I'm like okay, this is three or four questions to get in. It's going to be admissible. The judge is always going to accept it as long as you lay that authentication and is going to admit it. Is it important? And I think a lot of people feel that quantity matters as far as exhibits. If I don't have 20 exhibits for a temporary order hearing, it's not sufficient or whatever number they have in their mind. I think quality is more important. I don't need 30 pictures of you with your kids. I want one picture so the judge knows what they look like. So when I'm talking about your five year old, they picture a little kid. But I don't need 30 pictures of it. I don't need every text message between you and your soon to be exact, I want the one where he was really, really mean or he admitted to doing something really bad to you or your children. Right. I don't need every time he was kind of rude to you. So knowing which ones matter and come back to your three most important points. That's where I build my exhibit list from. Obviously some exhibits are necessary, right? I need a pay stub or a W2 or something to prove what child support should be calculated on. I need proof of insurance. There are Things I need to offer, those always need to be there. But the additional ones, the ones that build your case, I always bring it back to those most important facts because again, it goes back to your client. Maybe they feel this thing is really important and it is, it is important to them. But am I going to spend 30 seconds laying a foundation to get that item in that does not push the needle in my case either way? And the answer is probably no. But I always go back to those most important things and if it will add to my case of building those things or hurting the other party's case, if they're going to get up there and say all these nasty things and I have an exhibit that completely destroys it, I'm going to use it. But first and foremost, I look at my case and then I work out from there.

[Holly Draper]

I think it really becomes difficult when you have an exhibit that maybe is really helpful, but it's something that's time consuming, like a video or an audio recording. And all right, we cannot spend four minutes listening to this audio recording when we get 20 minutes. But every once in a while that audio recording is going to make or break. So then you just have to budget that time accordingly.

[Emily Derone]

Absolutely. And I try to find if there's a really solid 10 or 15 seconds to publish, I'll use that and then it's still in evidence. You can tell the court judge, I'm going to cease publication here, but on the court's time, if you'd like to review the rest, the whole thing is entered. And if that 10 or 15 seconds really gets the judge's attention, they're going to go back in chambers and listen to it. It's not going to burn your time, but they're still going to review it. Now, if you don't offer any of it, they're probably, or, excuse me, if you don't publish any of it, they're probably less likely to review it. So I do like to try to find something that's going to make them say, I wonder what happened just before or just after that, and try to publish that little bit and give them the opportunity to, hey, you can always go listen to this on your own time in chambers. And I have had several judges come out for a ruling and say, I went back and listened to the rest of that, or I went back and watched the rest of that, because they want to know what else there is.

[Holly Draper]

And sometimes the same can be said about documents where the documents might be admissible and important but voluminous. And I think part of it is knowing, is this a judge that is going to take the time to go look at that? If so, get it in. If not, you know, unless you're looking at a mandamus or something, then what's the point if the judge isn't actually going to look at it?

[Emily Derone]

Absolutely. And I was actually going to say the same. And you know more about appeals than I do. And so, like you said, is if I need this to be a part of my record, even if I don't know if this judge is going to use it, I'm going to offer it. But the likelihood of them going back in chambers and reading 350 pages of medical records is pretty slim to none. Nothing in there is going to capture their attention. If I say, hey, Judge, Here are these 350 pages of records. Page 10 and 11 are really important. Maybe they go back and read those two pages. But generally I try to not offer several hundred page documents because they're probably not going to go review them.

[Holly Draper]

So sometimes we get a document kind of at the last minute. Let's say it's a medical record or it's a police report. It's something where we do not have time to subpoena records and do business records. Affidavit. We don't have time to get a witness there. Maybe it's not worth getting a witness there. How can you use that document in court to get some of that information in without actually trying to admit it into evidence here?

[Emily Derone]

Sometimes the actual document is not that important. If you have a police report, let's say, for a domestic violence incident. Right. I don't actually need the report to go in. I need to ask my client about it. And then when the other party gets up and lies about it, I need to be able to pick up my document and say, you're saying everything in this report's a lie. Because now the judge knows I have a police report and that it says the opposite of what they are saying. I may not be able to admit it, but they're going to second guess what that person testified to. Because I'm willing to say, you're calling this officer a liar. You're saying this PC affidavit that was signed by this judge in this county was wrong. It's not the actual document. Right. It's the judge relying that you have it on something that you have a document for. And I think that's huge. That is how I use documents like that, where I have them. And if they tell the truth, great. It doesn't matter. I don't need the document. But if they want to lie, I'm going to call them a liar. While holding up a document that the judge can see from afar is truly a police report because they'll see the logo at the top, they'll see the badge at the top. They know that you have something and they know it's not admissible. They were, they're all attorneys. They know the rules of evidence, but they know that you have something that makes them second guess the person testifying. And I think that's almost, almost as helpful as getting the full report in.

[Holly Draper]

And that also can be a useful tip when maybe you don't have time to try and get something into evidence, but you'd like to let people know it's there.

[Emily Derone]

Absolutely.

[Holly Draper]

So what are your top tips for handling hearing that has a severe time restriction?

[Emily Derone]

Practice. Practice a lot. Go through your questions, make sure that you're in the time, knowing that when you get to court it's going to take longer than you think it does. Prepping clients, it never takes the same amount of time when I'm actually questioning them in court. So I always account for an extra minute or two minutes if I can. On top of that, I always start with the most important facts first because if I run out of time, there are some judges who aren't going to give you any leeway. That clock stops and you don't get to say a word, you don't get to finish your question. You are done. And those are the rules of the county. And that while I would love extra time, those are the rules. So I start most important to least important. That way, if I get cut off, I know that the judge got the most important parts of my case and I generally don't. It has happened once, but I try my best to not get cut off and at least be able to finish a question or a thought or an argument at a succinct point so the judge knows I could wrap up.

[Holly Draper]

I think it's really important for attorneys to know how strict is this particular court with the time limits before you ever set foot in there. I'll never forget I had a hearing as this was probably a decade ago at least. But Collin county has had 20 minutes aside for longer than that and the other attorney gets in and spent 14 minutes on her opening basically. Or well, she had a long time opening and then she just went through all these background questions with her client and she ran out of time before she ever got to any of those important issues. And I, I was absolutely stunned. Clearly this attorney had not appeared in this court. She did not know. When it gets 20 minutes, you're done. I don't care that you wasted 10 minutes on an opening and the other 10 minutes on background that was on you. So don't be that aware.

[Emily Derone]

Yeah. And I think what goes to that also is some judges have different rules around that 20 minutes. I've had judges in Collin county say, well, I don't count your opening and closing. Well, then you can bet I'm going to give a solid open and close. But if it's a part of my 20 minutes, I may waive those things because I think it's more important for my client to speak or to cross examine someone. But knowing your judges, I mean, like you said, some judges will cut you off mid sentence and they are not going to give you any extra time. Others may let you have an extra minute or two or depending on their docket or their day. But absolutely knowing your judge, your county, the local rules, I think it helps you prep and it can completely wreck your case if you don't know those things.

[Holly Draper]

And I think it's really important to be strategic about whether or not you're going to use any of that time on an opening. I almost never do it on a closing unless I just finished and I have extra time. But with an opening, most of if it's a really generic cookie cutter case, then I'm not going to do an opening and I'll just dive in. But if there's anything interesting that I want that judge to be looking out for, if this is maybe a non parent custody case, and why about that judge to be on alert for parent presumption or if this is, you know, the other side is doing drugs or an alcoholic or whatever, I'm going to give a short little opening so that the judge knows right out of the gates, hey, we got a bad actor on the other side. Or we've got this unique, we have a standing issue or we have this unique legal issue that I need to pay attention for.

[Emily Derone]

Well, and some judges want an opening. I, I had a hearing today in front of a judge that, you know, sets the timer for 20 minutes aside, asked if we wanted to open and I said no, I needed to reserve my time. And she said, I'll give you two extra minutes. I'd like an opening, please. She wanted to know what she was getting herself into and she knew this clock is going to tick really fast, so I'm going to give you two extra minutes. So that you can tell me what to expect. And so knowing that that matters to her in the future, maybe I allocate two minutes to that because maybe she doesn't have time on the day that I'm in there for a couple extra minutes for a hearing or she doesn't want to set a precedent in front of a room full of attorneys. We got lucky. There was no one else in there and we were the last ones to be heard. So she had the time. But knowing that she was willing to say, I'm going to give you a couple extra minutes, tell me what's going on. I know that an opening matters to her and she doesn't want to go into a hearing blind. And that may come into play in my next case in there.

[Holly Draper]

So one last tidbit to talk a little bit about is our jury trials. So you mentioned way at the beginning not super common in family law. I think some attorneys do them more than others just because of the nature of their practice. I think is probably three times since I've been doing family law for 15 plus years. There are probably been three times where it's been a legitimate discussion of should we think about a jury here. So but for those rare situations where you think a jury is appropriate and you're going to have one, what is.

[Emily Derone]

Your primary goal with four Dyer Just get people talking. That is number one goal of most attorneys that I've seen be successful in vortire. They tell people at the beginning of their selection. The people who talk get cut. The people who talk get to go home. And they're not lying to you, they're telling the truth. Right? They want you to speak, they want you to want to speak, but they also need to get to know you. And a silent jury. I have no idea what I'm going into. I need to know what your thoughts are. And that could be about anything. Do you hate your ex and never want to see them again? Did your parents go through a really nasty divorce when you were a child or a really amicable divorce and you saw something work, you saw a 5050 schedule be really, really great. And so now you feel like all children should have a 5050 schedule or the opposite of oh no, no, parents can co parent should never have that schedule. I need to know what your thoughts are. And so when you're picking a jury, a lot of people feel like they have to be perfect and super formal because oh, the jury is this expectation of who I am as an attorney. Just talk to them like people, introduce yourself, ask Them questions about their families, their lives, their jobs, because their jobs matter. What they do for a living tells you about how they think. An engineer thinks different than a lawyer. A teacher thinks different than a mathematician. Right. They all have these experiences that of course we're assuming about them based on their profession, but they do have these different lived experiences. A teacher is going to have CPS experience. They're going to have kids in their class who don't have food at home. They're going to see the impacts of that. Whereas someone who works nine to five at a desk, in an office, in a cubicle where there are no children, they don't have that experience. And so the only way to find those things out is to talk. And I find that using that conversational tone, just talking to them like people reminding them, like, I'm just trying to get to know you. We're not talking about the case right now. That's what matters. I think that a lot of people get bogged down in trying to teach them about the law and this and that. And it does matter. They need to know the law. That's what the jury charges for. They're going to get it. And so I always felt like I'm going to use my time because you usually do have a time constraint on void hour. I'm going to use my time to get to know them as people so I can try to see how they think and how they feel. Not about my facts, but about facts in general. Now, if there's a drug addiction problem, a domestic violence problem, things of that sort, I will ask different types of questions. Law enforcement background, personal life experiences, those will get a little bit more personal. Some people don't love answering those questions in a room full of people, but try to get those things in a normal run of the mill case. I just want to get to know who they are as people. Because that conversation, first of all, they like me because they trust me now that we've become friends over the last 45 minutes. But I also know who they are a little bit better than I did when they were just a name on a piece of paper. And so I think that conversation is the most important part.

[Holly Draper]

So when it comes to the actual trial itself, you have a jury seated and you're putting on your case, what are the key differences or things that people need to be conscious of if they are trying it to a jury instead of a bench?

[Emily Derone]

Emotions matter more in front of a judge. Now, this isn't true of all judges. Some judges are heavily swayed by emotion. But most have heard this story a hundred times. Jurors have not. And so they need now, you should always be telling a story in your trial, but they need the full story. They need to know emotionally why they should like your client more than the other one. Not why they should rule for them, not why your clients. Right. Under the law. Because you may tell the jury they need to follow the law, and they'll probably follow it, but they're going to be ruling with their heart, not with that piece of paper that tells them what to do. Why should they like your client? Why should they want to hang out with your client or side with your client? And that can be done through storytelling, through emotion. I always like to use I wouldn't call it a theme because I think that's a little kitchier than what I went with. But I want them to look at this story and imagine themselves in it or their best friend or their sister or their kid. And by building that story and that emotional connection with people, you can get them to where you need to go. A judge doesn't want you to spend 20 minutes trying to get them emotionally and make them think of their kids. Right. They're ruling on the law. They know what the law is. And also they've heard it so many times that, like you said, they don't care about an affair. I care about an affair. I'm less likely to personally like someone or personally side with someone if I know that they've gone out and cheated on their spouse under the law, does it matter? No. But I'm going to have an inherent distaste for them and that hurts their case. And so building that emotional component of it can make or break a case in front of a jury.

[Holly Draper]

Well, I think that is excellent advice and that will get us wrapped up here. Well, thank you so much for hopping on with me again today. I'm sure this will not be the last time for our listeners. Please take a minute to subscribe to enjoy future episodes and leave us a review.

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The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.