EP244 Witness Preparation in Family Court with Attorney Yasmin Kutty of KuttyLawFirm.com

Attorney Yasmin Kutty of the KuttyLawFirm.com stopped by to discuss with Mac Pierre-Louis (Macpierrelouis.com), Witness Preparation in Family Court. A Board Certified Family Law Attorney with 2 decades of legal experience, Yasmin gives tips to help litigants work with their lawyers to prepare for testifying before a judge or jury. Read full transcript below.

Transcript

0:01 Witness Preparation in Family Court with Attorney Yasmin Kutty.

0:06 That is our topic for today.

0:11 Welcome to the Lawyers and Mediators International Show and Podcast, where we discuss law and conflict resolution topics to educate both professionals and everyday people.

0:21 Catch regular episodes on YouTube, and any way you get your podcast.

0:25 Just remember, nothing in these episodes constitutes legal advice So be sure to talk to a lawyer, as cases are fact-dependent

0:37 Hey everyone, this is Attorney Mac Pierre-Louis, attorney, mediator, arbitrator, working throughout Florida and Texas.

0:43 And today, we are talking about Witness Preparation, but we have a special guest today.

0:48 And that’s attorney Yasmin Kutty, from the Kutty law firm in Houston area, Texas.

0:54 And she’ll be talking to us about this important topic today.

0:57 So Yasmin, welcome.

0:58 Welcome, Mac. Thank you for having me today.

1:02 I am a family law attorney, as you know, in the Houston and Sugar Land areas here in Texas.

1:08 And I’m Board Certified in family law by the Texas Board of Legal Specialization and have had over 20 years of experience.

1:15 And, you know, we’re gonna talk about what is preparation, I think, today?

1:20 Yes, yes.

1:20 And so Yasmin and I, we’ve known each other for years.

1:24 We actually started off working at the AG together years ago.

1:28 It feels like a lifetime ago.

1:30 And so, but since that time, we’ve, you know, We’ve gone our own separate ways to build up on different practices.

1:36 But occasionally I’ll see you in the courthouse and I know you’re a mediator as well.

1:40 So you’ve mediated cases and just a lot of experience.

1:45 But give me, give the audience just a couple of minutes of your background story starting off with Illinois and New York because you actually are not just a Texas lawyer.

1:58 You’ve actually practiced in a wide variety of places, right?

2:02 I have Mac, I actually was licensed to practice in Illinois back in the mid-1990s and I got admitted to the New York state bar in the late 1990s and practiced there actually extensively for over 10

2:18 years.

2:18 And I relocated to Texas in 2010, but I had done consumer fraud litigation in New York, actually under the Attorney General’s office there and did a lot of white collar fraud type cases.

2:32 and then came to Texas subsequently and have been doing family law for about 13 years.

2:37 I have a lot of experience with

2:41 financial stuff from my white collar investigations and I have a lot of litigation experience in family law here in Texas

2:51 and quite a bit of experience preparing witnesses to testify in hearings.

2:55 Well, that’s why you’re a good person to talk about this.

2:57 And so, all right, witness prep. First off, why is this an important topic?

3:02 And this was your recommendation for a topic to discuss.

3:06 We talked about lots of different things on this podcast, on this show.

3:09 But witness prep, prep, when you brought it up, I was like, you know, that’s a good topic to discuss because a lot of people out there who are gonna be going in court, or they’re already

3:17 involved in court and they may be searching on Google or YouTube for tips and tricks on how to be successful in front of a judge, in front of a jury.

3:26 First off, why is it even an important topic to begin with?

3:30 I think that.

3:32 People are very nervous and sometimes anxious about actually coming into a courtroom under oath and testifying in front of either a jury or a judge with people sitting in the audience.

3:43 I think the most important thing for a lawyer is to make sure that their witness or client is well prepared for that hearing.

3:51 And I think as much confidence your client may have or anybody out there that’s worried about going into the courtroom, they need to prepare.

3:59 And so it’s really important that there’s a good rapport with you, with yourself and your attorney, and that your attorney takes the time out to sit down and go through the testimony.

4:10 So preparation is key.

4:12 So let’s give a hypothetical situation, all right?

4:14 Let’s say you have a husband and wife, they’re going through a divorce, and they have a custody dispute between the two of them over the kids.

4:22 And a typical standard case, you might see quite a bit in Texas family courts these days.

4:28 And there’s going to be a temporary orders hearing. But before I get

4:32 too far in this scenario, in this limited scenario, that could apply to different kind of cases.

4:37 What kinds of settings, I guess, would a witness be testifying in?

4:44 I mentioned a temporary orders hearing, but there’s also a final trial.

4:46 So what kind of scenarios do you see this person testifying in?

4:50 That’s a great question, Mac. And I think there’s usually to water it down, there’s two types of hearings.

4:56 The temporary hearing that’s about the midpoint of your case and a final trial in the merits At a temporary order’s hearing, usually there’s some kind of a time restriction.

5:05 Maybe your witness is gonna testify for an hour.

5:09 In a final trial in the merits, you may be testifying for several days.

5:13 And so, and I think the most important thing is, your judge doesn’t know who you are, doesn’t know the witness, and you have a very limited amount of time to tell your story.

5:23 And it’s all about telling a story.

5:25 Yeah, so how long, when you said a limited amount of time to tell the story, how long do you see, at the temporary orders or at the final trial?

5:32 How long might you be sitting there having to answer questions?

5:35 I would say generally in a temporary orders hearing your main witness or client or anybody out there that might be going to court, you might be sitting there testifying for an hour, a solid hour or

5:49 two.

5:50 At a final trial in the merits, if you’re the main witness, you could be sitting there with breaks an entire day, maybe two days, if it’s a contested custody case.

6:00 Okay, and the witness’s entire goal is to tell the story as they’re going through this.

6:07 So how does that story get told effectively?

6:12 The first thing that I tell clients is you have to tell the truth.

6:16 You’ve got to tell the truth, okay?

6:18 But the second thing is how do you tell the truth?

6:21 And that is where you tell your story.

6:23 There’s persuasive storytelling, And then there’s storytelling that’s not going to catch anyone’s attention.

6:30 Give us examples. With an example, we just talked a second ago about the spouses who are going through a divorce with the custody case,

6:38 but whatever example you wanna give.

6:40 So people can understand.

6:41 So I’m gonna come up here with a scenario.

6:44 It’s a custody battle.

6:46 Mom and dad are fighting over who’s gonna be the primary custodial parent of the child or children.

6:51 A lot of times there’s domestic disputes going on in a family.

6:55 People are yelling and screaming And you may have a scenario where your witness is gonna get up and testify about a verbal abuse situation where the child was present.

7:07 Scenario one, the witness gets up and says, My husband came at me and was yelling at me and my kid was crying and I got scared.

7:17 That’s one way to tell the story.

7:20 The other way you can prepare your witness to tell the story is, It was seven o’clock in the evening I was in the kitchen.

7:28 My husband walked in the door.

7:30 I could smell the liquor on his breath.

7:32 My child was on the floor screaming.

7:34 He walked in, grabbed a knife out of the drawer and came at me and was screaming at me.

7:39 And I ran and I shut the door, I grabbed my child and shut the bathroom door while he was banging on the door.

7:45 That’s a much more persuasive way to tell the story than the first way I just described.

7:51 They’re both the truth, but you have to work with your client to get all the details out because the more details and description that you use in your testimony, the more persuasive that’s gonna be

8:01 to a court or a jury.

8:03 Yeah, so this has to do a lot of psychology, I guess, because people are more trusted when they give color to a story and they give the details.

8:15 Because you’re not going to be able to lie about details.

8:18 You have too much to remember to keep straight, right?

8:21 You might lie about a general thing, but to keep your story consistent and say exactly what’s happened.

8:28 and be cross examined back on it later on, and still be consistent, people are gonna believe you, more likely than not, that you’re telling the truth.

8:36 So this is why I told my clients the same exact thing.

8:40 When you’re gonna explain something, color it up, explain what happened before, what happened after, give the sounds, where were you standing as much color as possible so people can actually grab

8:52 the whole story.

8:53 So you mentioned Judge or Jury. What’s the difference when it comes to a witness?

8:60 So if a witness is testifying in front of a judge versus in front of a witness jury, how do those two things differ?

9:06 That’s a great question, Mac. I think when you’re talking, testifying in front of a judge, a judge is very experienced.

9:13 They’ve heard lots and lots of cases, done lots of trials, they know what they’re doing.

9:18 You can go a little faster, and more fast paced, and get to the point using a lot of facts and making sure you add a lot of color to your story, and you still need to be persuasive.

9:28 I think when you have a witness that’s going to testify in front of a jury, you need to reach your audience, which is 12 jurors.

9:35 You’ve got to slow down.

9:37 You’ve got to be calm.

9:38 You’ve got to take your time in telling the same story.

9:41 So I think the difference is speed, by which you tell your story.

9:47 Exactly.

9:47 And would you say that witnesses, that jurors are less legally educated in a sense.

9:56 So therefore, the way you tell the story and the speed out of it really becomes important for those people because they’re not going to be considering, they’re not supposed to be considering the law

10:08 in some aspect or whatever, but to a jury.

10:11 It’s really, really important that the emotions get displayed correctly, that the way that the sounds or experience gets presented in a way that’s going to, because they’re humans, right?

10:24 They want to take it all in.

10:25 Would you say that that’s the case as well?

10:27 Absolutely.

10:28 Absolutely, and

10:30 the testimony is being addressed to 12 different people, where when you have a bench trial and you’re just in front of a judge, you’re just looking at one person, the judge.

10:39 So, yes.

10:40 Okay, so let’s say scenario wise, we’re talking about

10:46 an example, husband and wife through a divorce, and they’re on the witness stand testifying, what’s the structure like?

10:54 Because we see TV, and we sometimes, on a television show, we might see how this works out, and we just kind of fall in the middle of it, in a Law and Order episode.

11:05 But in real life, what’s the actual structure of being a witness?

11:10 You’re called as a witness, you walk over, you sit on the stand, and then you start speaking, but then what happens next?

11:18 Direct examination, cross, like, what are the steps from beginning to end would you say in a nutshell?

11:24 That’s a great question, Mac I think there’s two components to testimony.

11:28 The first phase is when you tell your story.

11:30 The second step is when the other attorney on the other side cross examines the witness.

11:35 So the direct exam is when you tell your story.

11:38 And I think that

11:41 you need to do it in a, you start from the beginning with the background, when you

11:47 got married, go through the financials, your bond with the child and give the information.

11:52 The second stage is when the other side can cross examine you on questions and trip you up. And I think when you talked about having a colorful, factual story with a timeline and a beginning,

12:03 middle and an end is gonna be critical so that when you give your story and you’re cross-examined on it, you can stay within that framework of your testimony.

12:11 Yeah, so talk to us about cross-examination; cause we hear a lot, and you’ve mentioned that this is where you get tripped up.

12:18 Why is cross that important and how can somebody get ready for it?

12:23 Typically what I do is,

12:26 I go through the direct exam with my witness several times, and then I actually cross-examine them, to get them ready.

12:32 So you’re playing devil’s advocate in way.

12:33 Yes, yeah, I’ll do both sides.

12:36 Cross-examination is usually direct question, leading questions.

12:40 So you may get up and tell your story about the fight with your spouse in the kitchen, and then the attorney on

12:51 the other side’s gonna get up and say, isn’t it true that you threw something at your husband first?

12:52 Isn’t it true that you did this or that?

12:55 It’s very important to allow the attorney to give that leading question and then answer either yes, no, or I don’t recall.

13:03 Just stick with answering the question.

13:04 And what happens is witnesses get defensive and they start going into off on different directions well.

13:10 Isn’t it true that you threw a dish at your spouse first?

13:14 Yes, I did.

13:15 But what you’ll see witnesses try to do is, well, I threw the dish because I was scared ’cause he had originally come at me with a knife.

13:21 No, don’t go into all that.

13:23 Just answer the question.

13:25 Yes, No, or I don’t recall.

13:26 Yeah, and that example you just gave, I

13:29 threw the whatever because they were going through this.

13:32 You’ve gone further than what was asked.

13:35 Yes. The other side’s gonna stand up and object, right?

13:37 So let’s talk about objections.

13:38 This is sometimes a thing that rattles people up.

13:42 There, you think you’re gonna go to court, just tell your story and just share what happened from point A to point B to point C. But then the other side’s lawyer stands up and every other word out

13:53 of your mouth, they stand up and object, and you can’t get your story out.

13:57 It breaks up your story, it breaks up the narrative, and you might feel frustrated, especially during cross examination, where you wanna, you’re asked a question, you wanna answer the question a

14:07 certain way, but then the other side won’t let you get the truth out.

14:12 Talk to us about objections, how lethal can it be to a case, and then how do you prepare for them?

14:18 Because you don’t know what’s gonna happen.

14:19 Well, let’s break the objections down into two parts. The first is just when you’re testifying.

14:25 without exhibits.

14:26 And so if

14:29 you are testifying and you work it out with your lawyer in advance and go through your direct exam a few times, you’re probably gonna not have as many objections.

14:37 If you kind of wing it and you show up in court and you just testify, the other side’s going to object.

14:43 And so I think, and I wanna explain to the audience out there that an objection is the right for the other side to stop you from testifying if you are being led by your lawyer, you’re not speaking

14:57 for yourself, or you’re testifying to something that somebody else said.

15:02 And so if you go over your testimony and you can tell your story without being prompted too much by your lawyer, you’re probably gonna have a limited number of objections from the other side.

15:11 You don’t want too many objections from the other side ’cause it’ll break up your story and it’s not as persuasive.

15:17 Exactly.

15:18 And so this is why when people say they want a good lawyer.

15:23 I ask people what they mean by that.

15:25 But one of the things that you want in a good lawyer is what Yasmin is talking about, somebody who knows these nuances and how to effectively prepare.

15:33 And by the way, we’re running out of time, we got about 5 minutes left, I’m going to share my screen.

15:38 And so I have your website.

15:40 Where is your office located?

15:42 Our headquarters is in Sugar Land, Texas, and we also have a small office in Houston, and we see clients at both locations.

15:50 Yes, and so folks can get in touch with you at KuttyLawFirm. com, and so

15:59 you have a beautiful website, by

16:05 the way.

16:05 Thank you.

16:07 So everything is there, you know, and intake, questions, and answers.

16:07 You even have videos already.

16:10 And I know you’ve been featured on television.

16:11 I have.

16:12 On Fox. Yes, I have.

16:14 So yeah, but just wanted to make sure people knew, check out KuttyLawFirm. com, your phone number, your contact, and all that’s. If people want to learn more about you.

16:25 But

16:26 let’s go back, let’s start to finish up.

16:29 So there’s objections you’ve gotta be ready for.

16:31 And then what about exhibits?

16:33 Exhibits are things that you bring to court as evidence to try to show the judge, right?

16:38 But the other side can have their say as to whether or not the judge can see your exhibits.

16:43 When you are a witness and you’re presenting in front of a judge and you’re talking to the court, how do exhibits interplay with what you have to say?

16:53 I think

16:55 the kind of scenarios we’re talking about, custody battles, I think photographs and audio recordings are probably the two most common type of exhibit that’s utilized in hearing.

17:04 And I think it’s important that those get integrated into your story and your lawyer knows when to insert those exhibits.

17:11 And in order to get an exhibit in, your lawyer has to lay what’s called a foundation so that you can get that exhibit moved into evidence.

17:20 And it needs to seamlessly be tied in the storytelling.

17:24 Who took the picture?

17:25 When was the picture taken?

17:26 Does it accurately, fairly depict what you’re actually seeing in the photograph and getting your audio recordings in properly as well to show, Hey, this is what happened on that faded night in the

17:37 kitchen when my husband came at me.

17:39 So that’s the, you know, weaving in those exhibits while you testify really comes down to a good experienced lawyer.

17:47 Exactly.

17:48 And so I’ve had cases where my client comes to me, a potential client might come to me. Then we’re doing a consultation, we’re talking about all the things that they have as evidence.

17:58 And I’m imagining, okay, this text message, this photograph, this video, and there’s whatever the evidence might be, they think it’s good evidence.

18:09 But

18:10 I am thinking to myself, you know what?

18:12 The other side is going to have a field date with this because it’s going to have objections tied to it.

18:17 It’s going to not be admissible as evidence, maybe because of hearsay. Can you talk to us about how not all evidence that a client might want to share with the court will actually be shared with the

18:30 court and why and specifically about the hearsay objection because that one will keep so much good evidence out.

18:38 That’s a great question.

18:39 I think that oftentimes clients will bring in audio recordings with other people in the recording that we don’t have before the court.

18:48 Those recordings of the people in the conversation will not be allowed in. You may have a report from somewhere where a police officer interviewed five different people at the scene.

18:59 Those people are not available to testify in court.

19:01 That piece of paper is not going to come into evidence.

19:04 You may have a text from your spouse about something that is just not very defining.

19:10 It’s not really telling the story that needs to be told in court.

19:13 It may be your idea of what you think is verbal abuse or something really bad happening is really not that persuasive to a judge or a jury.

19:21 You need to let your lawyer sort out.

19:23 You need to bring in everything.

19:25 and let your lawyer go through those things and pick out the best things ’cause you have a limited amount of time to tell your story.

19:32 And I wanna go back to a question you asked earlier about the difference between TV and reality, and it is that reality is slow and kind of boring, and TV is fast and exciting.

19:43 And I think that’s the distinction.

19:45 That’s a good point, and reality is meticulous, and reality can also cost you a small fortune.

19:50 Yes. You know, if you’re not prepared, you know, the right way, and so anyway, get with a good lawyer like Yasmin Kutty, and then get your things processed through exhibits admitted into

20:03 evidence and your presentation, you know, to come out as a matter of fact, not just have your stuff tossed out by objections, you know, every couple of seconds.

20:15 So. And the last thing I want to say. This is litigation that we’re talking about when people are coming into court, it’s expensive.

20:23 It takes time, but the way you know you have a good lawyer is they’re going to gather all that stuff up with you, and they’re going to practice with you ahead of time.

20:31 And if they’re not doing that with you, you don’t have a good lawyer.

20:35 Okay.

20:36 Yes. Well said.

20:37 Okay.

20:39 So thank you.

20:39 Yasmin Kutty, attorney of law.

20:39 Thank you so much for coming today.

20:40 Thank you, Mac.

20:41 And so we’ll do more of these recordings.

20:44 And Yasmin, you’ve been on this episode, on these series before with a prior episode.

20:50 You’ve talked to us at least a couple times, I don’t recall exactly, but folks, go to LMIPodcast. com and search Yasmin’s name.

20:58 She’s spoken before.

20:59 You can see the other recordings that she’s done.

21:01 And so we’re going to keep having you back to talk about this topic, especially from the perspective of a trial lawyer, because there’s lawyers and then there’s litigators.

21:11 And litigation is a whole other animal.

21:13 And I think people need to give it the due that it’s worth.

21:17 Thank you, Mac.

21:18 All right, guys.

21:19 Until next time, check everything out on LMIPodcast. Take care.