Podcast Summary: "Courtroom Tips from a Former Prosecutor"

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

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.

Key Discussion Points & Insights

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.

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)

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.

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)

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)

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)

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).

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.

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)

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

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.