The Five Tenets: Tenet Five - Grace

 

The last tenant: showing grace.

For me, the thing with grace is the troubling part where it comes off as patronizing, rehearsed, or even false. Lately I have heard a lot about grace. “Thank you for showing me some grace,” etc. That is usually very nice to hear, and I am sure many times the statement is heartfelt. The problem is what might look like grace is often just plain old common decency. Maybe that’s the real problem though: common decency is not that common, and what should be just mannerly is now seen as “grace.” Okay, I will put my soapbox away now.

The grace I think about when considering these tenets is not genteel. It is not second nature or just small talk. In this context grace should really mean taking a breath, calming the anger/anxiety the situation has aroused in you, maybe not saying what you really (really) want to say, and deciding to extend that person some goodwill. To rise above the anger/anxiety and communicate with the other person in a way that may not seem natural, if not completely opposite, from what I might think the situation calls for in response.

None of these tenets are easy, and we could spend a considerable amount of time arguing over which is the most difficult. But I suspect they are each the hardest, and most likely it depends on the situation at the time. Speaking with kindness, holding a boundary, being honest, and being positive seem to be more centered on what I will receive. How I am communicating so I can feel better about my side of the communication. Showing grace seems different in that I am extending something to someone who by my estimation may not deserve what is being offered to them. As I think about it though, that mindset is faulty for two reasons.

First, I need to remember just because I am offering someone something does not mean they want it or will even see it as something of value. Maybe this grace I am giving them is not seen as grace at all but a false or patronizing statement, if they can even really hear what I am saying at all. If that is the case, then this grace is nothing more than lip service and not the positive statement I believe it to be.

Second, and more importantly, I think showing grace really is ultimately for me. While it might seem like grace to them and they may appreciate it for how it was intended, I still receive the benefit of being mindful, saying something hopefully positive, hopefully honest, and hopefully kind. I still get the chance to be what I think of as a better person. Not better than the other person, but a better version of myself. If the other person reciprocates and our future communications are positive, then I receive that benefit as well. Like an investment in a more positive future.

When it comes to showing grace, for me it helps to try and think about how I would want this person to communicate with me if the roles were reversed. In my mind it is sort of like a teeter-totter. For us both to have fun we must push off about the same amount so we each get to go as high as possible, or to make sure we don’t bruise our butts. If I am showing the other person grace, then hopefully they will show me grace and we each get something positive out of the conversation. The more positive the conversation, the more likely future conversations will be positive. And the next thing you know, smooth teeter-tottering.

That said, first we must get on the teeter-totter. And that is really the issue, isn’t it? The split-second between the nasty thing they just said and how I will respond? How can I wedge grace in there to keep the anger/anxiety from taking over and saying what first comes to mind? In that split second, if I am mindful and practicing the other four tenets, then I think the chances that grace will be what comes out of my mouth is good. A split second does not seem like long, but if I was previously able to say something based upon an angry thought without hesitation, then logically I should be able to do the same with a statement of grace. I think it depends upon how much I practice, and how much I want to change. But in truth, sometimes the angry statement still comes out, and that’s okay. Sometimes nasty statements are met with an angry response, and perhaps deservedly so. Just don’t be too hard on yourself. You can always try again, and again, and again. That’s the great/terrible thing about life; it gives us so many tries.

My best advice? Take a deep breath, maybe even a few, really think about what you want to say and why and try to show some grace. And as you do that, show some grace to yourself. I mean truly, I think we can all use some grace, and we should begin with ourselves. Once we learn how to do that, maybe it will be easier to show that same grace to others. Thanks for reading.

 


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Four - Honesty

 

Couple of disclaimers: 1) I tend to put a lot of stock in honesty, and 2) I do not tend to put a lot of stock in “my truth.” The first was how I was raised, and the second is my own opinion. Nature and nurture.

To start, I think we need to be sure we talk about the difference between being honest and being truthful. We should always try to be both, but the truth of something can be different than how we are honest. Case in point: I can honestly believe I am right about a certain subject, but that does not mean my feeling is truthful. Sometimes the difference can get lost. Sometimes the “truth” is something we have told ourselves so many times and for so long the actual truth gets lost. We need to be mindful of understanding what we see as the truth may contradict, sometimes drastically, from what the other person sees as the truth.

That is where honesty comes in. I think honesty is based more upon feelings and beliefs than upon facts. Honesty centers upon how I am feeling, reacting, and communicating with a person at a given time, and based upon a given subject. Truth factors into the conversation, but if I am angry, happy, or sad about something the fact it may not be true does not cancel those feelings. I might seem more than a little irrational, and it is at that point I should probably take a break from communicating, but I am being honest about my feelings in the communication.

The other side of honesty is when I am communicating with someone, if I want the communication to remain positive and productive, then I need to recognize their honesty might not be truth. I need to recognize the communication for what it is and consider my response carefully. If I am trying to understand their position and communicate my position back to them, then I need to be sure to recognize their feelings. Granted, that assumes the person is genuinely communicating with me, and I can understand the communication, but that burden falls upon both of us. Both parties must be honest if progress is to occur.

With honesty being my goal, I think it helps to take a moment and organize my thoughts. Maybe I am truly angry, and if so, while anger is a necessary emotion and probably honest, I might not be in the best frame of mind to convey what I am thinking. In my experience at least, yelling at the person I am communicating with and making sure they understand I am angry is not productive. Usually, they disengage or get angry back and make it very clear why I am wrong. Because as I have said, I cannot remember a smart thing I said when I was angry. On those rare occasions that I get angry I tend to make as much sense as algebra (please don’t get me started).

So, I take a moment, organize my thoughts, and feel like I can honestly communicate. Or maybe I need another moment, or hour, or day or week. That part really is important: if I do not feel ready to communicate using these tenets then it would be best if I ask for more time. To be fair, I should not use this as a delay tactic, and if I agreed to discuss a certain topic at a certain time, then I need to be prepared. But if I truly need some additional time to organize my thoughts and be able to communicate honestly about an issue then I should ask for that time. On the other hand, if that time is asked of me, then I should give it if possible.

Assuming I have those thoughts organized and am ready to communicate honestly, then what I find to be helpful is acknowledging what I am feeling by simply starting the statement with “I feel” and moving forward. It probably should not be “I feel you are being a jerk”, but something more like “I am feeling anxious because of how we are communicating.” Taking the focus off the other person, stating my feeling, accepting my part in the communication, and honestly conveying what is going on inside my head is the first step.

The second step might be a response saying something like “Thank you for sharing that with me. For my side, I am feeling upset because of this situation as well.”, and back and forth it goes. For me, the frustrating part of these types of communications is at first it seems as though nothing is really being said. Maybe so. But maybe the other person needs to convey those feelings to really, honestly communicate. Maybe I did not understand what those feelings were, and if not, how can I understand their point of view? If we really take a moment to think about it, isn’t that the point of almost all miscommunications? If we only took a few (hundred) steps back and started off by identifying the source of the emotion, perhaps we could work towards a solution.

I know, I know, that seems ideal, and possibly even unrealistic. After all, I think the times we are truly honest is when we first establish trust. If we do not trust the person then the likelihood of open, honest communication is probably slim. And trust is hard. Maybe one of the hardest things to develop or re-establish. But we must start somewhere. Somebody must take the first step. Somebody has to start by saying “this is the idea I am trying to convey, and why it is important to me.” When that happens, I think one of two responses occurs, both of which are positive.

First, the other person will recognize the honesty and trust, and reciprocate. Second, the person will not recognize the honesty or trust, the response will be combative, and I can practice my other four tenets. I start to build a good communication path, or I identify a closed path. I think both are better than not being honest. But again, I put a lot of stock in honesty. I would even go as far as saying that without it you cannot have real communication, and without real communication nothing will truly be solved. Thanks for reading.

 


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Three- Being Positive

 

Being positive.

Before I get started on this, I want to address toxic positivity. The definition seems to be no matter the circumstances, a person maintains a positive attitude. The pushback is being positive all the time overrides emotions somehow lessening them. I think the pushback is well intended, but misplaced because:

  1. “Toxic” is a strong word. I could see “overly positive”, “too positive”, or even “annoyingly positive”. But toxic implies that something is poisonous or harmful;
  2. We must remember that if someone is being positive that is their emotion. Our reaction to their positivity is our emotion; and
  3. Simply labeling something as “toxic positivity” seems like an easy way to dismiss a point of view.

The above tends to ignore the benefit of what being positive can do to help your mindset and your communication. My grandma would have said throwing out the baby with the bathwater, and she was much brighter than me so I will not try to improve on the saying. I will simply say someone that seems to be positive all the time probably is not, and if we believe humans genuinely try to be good people most of the time, then perhaps we should give the person some grace (more on that later) and see the benefit in what they are saying. You know, to approach it with positivity?

Now granted, the idea of showing gratitude daily and looking for the good in every situation can be daunting. And for me, writing down those gratitudes each day can become a chore. I mean, you can only write “sunshine, happiness and hope” so many times. It can be counter-productive because we are not reflecting on the situation. Added to that, we are not giving ourselves the chance to feel positive and negative emotions, both of which help us regulate how we communicate.

Okay, so now that we have the preliminaries out of the way, how about we address the tenet of being positive? I think the idea should be that if we try to approach the situation with a good attitude, not expecting the worst, or see a bad intent behind someone’s actions, then perhaps we have a chance to see the situation from a different angle. To think about something critically instead of having a pre-formed opinion, and not allow ourselves to decide beforehand what was a problem before will continue to be a problem now.

That last part is tough. History can be a difficult thing to get past if we can get past certain parts of it at all. I consider myself a student of history but lately I am coming to realize that I was a part of the history that was made. If that history has a negative connection for me, it might have a negative connection for the other person too. Perhaps the best way to deal with it is to examine it, look at the role I had in that negative connection, and see if there is anything I can do so it does not continue to be negative. Because, again, if it was not working before, why continue to do it that way? That’s just dumb, and I don’t want to feel dumb. It makes me think negatively about myself and others.

The tricky part is changing how we think. We talked before about mindset, and how we train our minds over the years to think one way or another. Added to that we have our brain chemistry and the physicality of how the brain works; always trying to save us from dangerous situations. But most of the time the difficult communication we are having with someone is not dangerous. It can be hard, emotionally upsetting, and not something that should continue. But maybe if we approached that conversation from a positive standpoint first and make sure we keep our boundaries (see how these all fit together?), then the communication does not degenerate to that point.

So, what can we do to be more positive? For me, these ideas seem to help:

The above is human nature and is usually not personal. Sometimes the other person is unable to get past their fears, wants, needs and agenda without first voicing them to you. They just need to say their piece. Not great, but it helps to think it is may not be directed at me. What is paramount is that their fears, wants, needs, and agenda are voiced. That they are heard, and that I hear them. Oftentimes it is not really whether I agree or not, but that I listened and heard what they said. Sometimes they end up talking themselves out of their own position.

If I respond negatively, I am likely to get negativity in return. That is an argument, not a discussion. Both have their place, but argument is convincing someone you are right by telling them why they are wrong. Most of us do not like being told why we are wrong and communicating with a negative attitude generally ensures it will not end well. When that happens, it can be difficult to get back to a place where communication and problem solving can occur.

For me, it is important to try and approach the communication with the idea things will work out. Maybe not work out perfectly or exactly how I want, but in the end, it will be okay. That is tough to sit with sometimes, especially when it feels like everything is coming apart, but please be patient.

That advice is hard to give, and harder to follow, but most of the time it works. It will take time and lots of practice. But it gets better. It will be okay. I am positive.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Two - Holding a Boundary

 

Now that you have mastered speaking with kindness and listening with kindness, it is time to tackle what I think is the most difficult tenet: holding a boundary. There are many different ways to describe holding a boundary, and the definition that works for you should be the one you follow. For me, it is deciding what I will (or will not) agree to or accept. Easy, right? Yeah, not so much.

It can be very hard to transition between when the boundary was set and then using the boundary. The difficulty can be the boundary may have been set at a time when you were in a different emotional state. For example, perhaps the boundary came from a place of anger or fear after a difficult conversation, and you decided that never again would you feel _______. But things calm down, you reconsider, a new confrontation begins, and old habits kick in. (Sigh).

Or, maybe you set your boundary at a time you were calm and collected, had a chance to observe the situation from an objective point of view, and determined how you would act next time. But then the next time comes, that calm you felt evaporates, and old habits kick in again. (Bigger sigh).

So, what good is having a boundary that is never enforced? Short answer: there is no good in having that boundary. Really, there is no boundary. It is good to be considerate, flexible, and open to discussion, but in my mind, a boundary is synonymous with a limit. Hopefully, I did what I could not to reach that boundary. I used my other tenets to try and work through the situation with the person I was dealing with, and we did not come close to the boundary. But if I tried all that I could think of, and I cannot resolve the situation with the other person (usually because they are being unreasonable), then there has to be a limit. Otherwise, what generally happens for me is I abandon my boundary and give in on the issue, thereby creating resentment and anger for myself. Usually, during these times, the issue comes back up and all the fun that was experienced in arguing about it before gets to be revisited. (Biggest sigh).

So perhaps some pointers are in order in determining your own boundaries. What works for me (most times) is:

If you are using the other tenets, then hopefully boundaries will not be at issue. You spoke with kindness, listened with kindness, you were positive, honest, and gracious. The rest should be easy, right? Maybe. Or, maybe the other person is not following the tenets, or not following them within your boundary. If so, then there needs to be a limit. Otherwise, patterns developed over the years will continue, and the issues that lead to problems communicating will probably persist.

To be sure we are clear: I know this hard. I struggle with this almost daily. Setting the boundary, setting the consequence, second-guessing myself, etc., is very hard. It will continue to be hard, especially in these types of communications. But as with speaking/listening with kindness, this tenet takes practice. For me, it takes the most practice, but I can say from experience when it works it is the most satisfying because I know that I did what I could to avoid the boundary, but I still held it when it became necessary.

It is important to remember holding a boundary is not a sign of failure, but instead, you were able to stay true to yourself. And that’s really the point: to make you feel positive about how you communicated during a difficult situation. Thanks again for reading.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

Alternatives to Trial


Most cases do not go to trial. Chances are your case will settle, either through discussions between you and the other party, or more likely your attorneys, or through other formal means. So, let’s assume you do not want to go to trial, and incur the time, expense, and stress a trial will ultimately cost. If so, then alternative dispute resolution (ADR) is likely the best option.

What options are available, and which option would be the best fit for your case? It depends upon the issues in your case, and the status of your case. Are we arguing over children, finances, or both? Is this the original divorce/paternity action, or a motion filed months or years after orders have been issued? Once you identify those issues we can better determine how to proceed. But the reality of the situation is that participating in ADR increases the likelihood of settlement, and in my experience even if the case does not settle in ADR the process is not a waste of time.

It is important to understand the different forms of ADR, and usually they fall into the following categories:

  1. Mediation: The goal is to assist parties in defining the issues involved in the case, communicate with the parties on those issues and possible resolutions, and help the parties to reach an agreement. Other than cost, there is no downside to mediation. Please take that with a grain of salt in that I have participated in hundreds of mediation cases, both as a mediator and as an attorney representing the party in mediation. I believe in the process because it requires the parties to meet, to communicate their positions, and allows the mediator to provide guidance to the parties in reaching a settlement. Often it is the mediator making suggestions the parties had not considered, resulting in settlement. Granted, cost can be an issue, but when compared with the time and expense of a trial, mediation is the better alternative. Additionally, mediation is confidential, and so if the parties do not reach an agreement, none of the information learned in mediation (with some rare exceptions) can be used later at trial.
  2. Domestic Conciliation: This is the next step above mediation, with the goal being to work with parties that have a history of being unable to communicate and reach agreements. The first tier is trying to improve communication skills and develop solutions to lessen conflict. This is not a confidential process, and while the first part of domestic conciliation is to help the parties reach an agreement as in mediation, if they do not reach an agreement then the domestic conciliator prepares a report to the Court prior to the parties proceeding to trial. The Court is not required to give the report any weight in making its decision, but that is something that can occur, especially if the domestic conciliator does a good job of identifying the issues and possible outcomes.
  3. Parenting Coordination: For parties that have a history of disagreement, the next stage is parenting coordination, with the goal being to assist parties in reaching an agreement to resolve disputes and educating the parties regarding co-parenting and communication skills. But, if the parties are unable to reach an agreement, then the parenting coordinator is able to investigate the matter by speaking to third parties, and after completing an investigation, make recommendations to the Court regarding a resolution of the issues in question. Again, this is not a confidential process, and even though assisting the parties in reaching an agreement is the first step, if an agreement cannot be reached then the parenting coordinator issues a report similar to the domestic conciliator. The difference is the parenting coordinator makes recommendations to the Court as to how the issues in the case should be decided. Again, the Court is not required to follow the recommendation, but if the parenting coordinator provides convincing information to support the recommendation, then the Court can rely upon the recommendation at least in part in its ruling.
  4. Case Management: The last stop for high conflict cases with the goal being to assist parties by providing a procedure to facilitate negotiation and resolving issues concerning their children, co-parenting, and communication. If everything else has failed, and parties simply cannot cooperate in parenting their children, a case manager can be appointed to resolve disputes. Unlike the other forms of ADR, a case manager has considerable authority in resolving parenting disputes, even going as far as making recommendations to the Court regarding a change in custody, residency, or parenting time for the children. The Court still has the final say on such issues, but if the parties are to the point of participating in case management, and the case manager provides solid reasons for the suggested changes, Courts tend to follow those recommendations at least in part.
  5. Arbitration: Arbitration is the process where an arbitrator is appointed to resolve the issues in the case. The arbitrator takes the place of a Judge, and arbitration is similar to a court proceeding in that evidence is presented to the arbitrator and binding decisions are issued. Generally arbitration is used in cases dealing with financial issues, and much like mediation, cost is the main barrier. Additionally, it is not something family lawyers work with on a regular basis. But, if your case deals with complicated financial or legal issues, then arbitration may be a better (and quicker) option than waiting on a trial date. Lastly, arbitration can be included as the method for settling future disputes once a divorce is finalized, thereby saving the parties time and money if post-divorce issues need to be addressed.

The end result you should take from the above is this: Judges do a good job of reviewing cases and making decisions, but most will say the parties themselves are best suited to come to a decision. A Judge’s job is not to side with one party or the other, but to review the evidence and issue rulings. It is important to remember a Judge may not see the evidence the same way you do, and the resulting ruling could be different than expected. Also, negotiated settlements are generally best because while not perfect, they are the product of the parties coming to an agreement. That agreement can be built upon if there are future issues like parenting time and child support, and let’s face it: there will be those issues and we may as well start building the foundation now.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

Lights, Camera, Trial!


Sometimes lawyers tell clients to “forget what you may have seen in the movies; your trial will be nothing like that”. Maybe, but there will be a courtroom, a Judge, an opposing attorney, witnesses, exhibits, etc., just like the movies. True, a Joe Pesci-esque character will not likely come into court with a leather coat and a Brooklyn accent, but that is not to say trial lawyers are like “normal” people. We aren’t.

A trial is a combination of procedure and performance, both of which are equally important. However, if the procedure was followed, and your case is prepared properly, the performance can make a difference. A trial is not a show, but trial lawyers know in the end we must convince a Judge our argument is correct. Evidence and procedure are helpful, but presentation matters.

Boiled down, a trial is opening statements, presentation of testimony and exhibits (evidence), objections, and closing statements. There could be other issues like motions to do this or that, but usually trials follow a pattern. So, what do these terms mean?

Opening Statement: An opening statement is not an argument. The opening is meant to give the Judge an idea of what the issues are, what the evidence will be, and what you are asking the Judge to do. Each attorney has their own style for opening statements. Mine is simple:

Usually a trial happens after months of preparation. The parties know the issues, the Judge knows the issues, and they just want to GET ON WITH IT. However, it is a mistake to waive an opening argument, even if it seems like a “simple” case. A trial is not a time to assume anything. Even if the same Judge heard all the motions and had the parties in the courtroom dozens of times before trial, assuming the Judge knows the case is an error. Expect your attorney to take a few minutes to frame the case and let everyone know what to expect.

Direct Examination: Direct examination is the first time the witness is questioned and tells what they know about the case. During direct examination the witness should give the Judge background information that supports their proposal and tells the Judge the story of the case. The Judge does not want to hear from the lawyer, the Judge wants to hear from the witness. If you are called as a witness (and you will) be prepared to give more than just “yes” or “no” answers. The questions should be open-ended (What, Why, Who, etc.), and answers should be given to help the Judge understand why the issues are important.

Cross Examination: Cross examination is what you usually see in movies, with lawyers shouting at witnesses and giving lectures. That is not how it is supposed to happen, and usually it does not. That said, we lawyers love to hear ourselves talk, and we’ve seen the same movies you’ve seen. Cross examination is the chance for the lawyer to get the witness to say things they do not want to say by using leading questions. Again, each lawyer has their own style, but I find that haranguing a witness is not effective, especially if the witness cries. While that might sound satisfying, it can make the lawyer look like a bully and create sympathy for the witness. The better technique is to methodically go through the testimony and evidence, get the witness to admit they were wrong (or better yet lying – that is the best), and show the Judge they are not credible. Usually it is not that clear, but cross examination is the best way to keep witnesses honest about the facts.

Re-Direct/Re-Cross: After the direct examination and cross examination lawyers have a chance to ask additional questions if needed. Re-direct or re-cross questions are not required, but they are common, especially if the cross examination was damaging to the case and the witness needs rehabilitated.

Objections: Objections happen when a lawyer thinks a question or exhibit should not be used as evidence. If you are testifying and a lawyer objects, stop talking. The Judge will rule on the objection and then tell the witness how to proceed.

Admission of Exhibits: Exhibits are usually copies of records, photographs, emails/texts, reports, and sometimes recordings. But just bringing them to Court is not enough. Exhibits must be relevant to the case, authentic, and testified to by a witness. Sometimes exhibits are stipulated into evidence beforehand to save time at trial, but contested exhibits will require foundation, or the background letting the Judge know the exhibit should be admitted and considered as evidence. Foundation comes from witness testimony, and it can be tricky if the witness (or the lawyer) is not prepared. Beware: exhibits for a trial can be hundreds, if not thousands, of pages. You should review them all carefully before trial. The likelihood you will be asked about an exhibit is very high. If you have not reviewed all the exhibits before the time of trial it could be damaging to your case.

Closing Statement: This actually is argument. This is the time the lawyer tells the Judge what the evidence shows, how the evidence supports your case, and why you should prevail. Closings are longer because the lawyer can now argue the client’s position. Again, differences in styles are abundant, but I find that a calm and collected argument, referring to all the evidence, positive and negative, is the best option. An older lawyer once told me something I will never forget: the only reason for a lawyer to be dramatic in court is if they do not have a good case.

A trial is not a fight, or a time for hysterics. Emotions will be high, and lawyers cannot help but be a little dramatic. But too much drama detracts from the message. Rather, a trial should be a well-organized presentation of the evidence demonstrating why your position on the issues is correct. Not a robotic recitation, but not so much drama the message is lost.

After all, this is not a movie.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.