Page 23 - Phoenix Vol 11 No 3

instead of separate ones and an order compelling the exchange of position statements no less than three working days before the joint pretrial statement is due.
RULES OF EVIDENCE
Another anxiety-producing reality is not knowing what rules of evidence will apply at the temporary orders hearing, if any! In our experience, even when a Rule 2(a) notice has been led, we have seen separate pretrial statements admit- ted as evidence. O en, they include the hearsay statements of children or others - sometimes even individuals not spe- ci cally identi ed by name – and even referencing exhibits that are admitted without foundation simply by incorpo- ration. A parent’s statement of the best interest factors, even if based entirely on personal knowledge and including no hearsay statements, might not be ad- mitted. However, parents are routinely allowed to testify about what children have said to them – or allegedly said to them – and documents are o en admit- ted where no proper foundation has been provided. To avoid the anxiety of not knowing how your judge is going to apply rules of evidence and deal with speci c questions related to the case, be prepared to ask what the judge’s prac- tice is on evidence and testimony at the RMC.
NOT ENOUGH TIME
Layered on top of all these anxiety- producing uncertainties is the reality that you are unlikely going to have the amount of time that you need to present the evidence. If the temporary orders hearing is set for 60 minutes, expect to have 25 minutes for direct, cross ex- amination, and any redirect. Similarly, if it is a 90-minute hearing, 40 minutes are allocated to each side. ese time limitations demand that the courtroom presentation be focused, thoughtful, and well-planned.
Cross examination needs to be short. Without exception, every question should be a leading question. Nothing wastes time more than giving the op- posing party the opportunity to answer an open-ended question and provide a series of nonresponsive or misdirected narratives. Focus on areas which may re ect a lack of credibility or an ex- treme position. Get in and get out!
Direct examinations should be the result of practicing with witnesses, providing them written questions in advance, timing how long it takes for you to ask and for them to answer each question. Pare down the presen- tation to be well within the time limit and reserve time for redirect and un- expected interruptions.
Judges will not accept stipulations to allow the wholesale admission of exhibits. Do not waste allocated time attempting to get too many docu- ments admitted or those for which you are unable to establish a proper foundation.
During presentation, encourage the judge to volunteer his or her thoughts about the areas that he or she is most concerned about a er having read the pretrial statement. Even if unsolicited and the judge of- fers it to you gratuitously, listen care- fully and give the judge what they want to hear. Do not spend time pre- senting prepared evidence or script- ed questions if those are not areas of concern for the judge.
MANAGE CLIENT EXPECTATIONS
Appreciate and accept that the pre- sentation at a temporary orders hear- ing is not going to be perfect and pre- pare the client for the fact that there are likely going to be documents marked as exhibits which do not get admitted or questions that were not asked.
e combination of uncertainty about disclosure obligations, which rules are going to be applied or dis- regarded, and what evidence will or will not be admitted is stressful enough. Layer on top of that a court- room presentation process in which there is not enough time to put on much evidence and the result is a pressure lled challenge for even the most experienced practitioners.
Adopting the best practices that I have recommended will not only maximize the client’s probability of obtaining a successful outcome, but also will let the attorney get a good – or at least better – night’s sleep before the next temporary orders hearing.
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