Category Archives: Family Law

Crushing the Cross Examination

Part 1: Boxing them in

By P. Micheal Schneider

As a young lawyer I made MANY mistakes…still do if I’m being honest. One of the biggest mistakes I made was in how I conducted my cross examinations. Like an excited puppy waiting at the door, I would mentally work myself into a tizzy as I listened to the direct examination of opposing witnesses. The anticipation of attack would build in my head. The words “I pass the witness” coming from opposing counsel’s mouth were like the starting bell at the dog track. Unfortunately, like the greyhounds, I would seldom catch the rabbit.

Over time, I have come to learn that great cross examinations have similar attributes. Subtlety, focus, and control come to mind most frequently. Most importantly, great cross examinations require a plan to “box in” the witness with patient questioning so that the witness has nowhere to run when the haymakers are thrown.

Here is a great example of patient “boxing in” questioning from the timeless book The Art of Cross Examination (4th Edition) by Francis Wellman:

The issue was the forgery of a will; the proponent was a man of high respectability and good social standing, who had an indirect interest to a large amount, if the will, as offered, was allowed to be probated.  Samuel Warren, the author of “Ten Thousand a Year,” conducted the cross-examination. 

Warren (placing his thumb over the seal and holding up the will).  “I understand you to say you saw the testator sign this instrument?” 

Witness.  “I did.” 

Warren.  “And did you sign it at his request, as subscribing witness?’

Witness.  “I did.” 

Warren.  “Was it sealed with red or black wax?”

Witness.  “With red wax.” 

Warren.  “Did you see him seal it with red wax?”

Witness.  “I did.” 

Warren.  “Where was the testator when he signed and sealed this will?”

Witness.  “In his bed.” 

Warren.  “Pray, how long a piece of red wax did he use?”

Witness.  “About three inches long.” 

Warren.  “And who gave the testator this piece of wax?”

Witness.  “I did.” 

Warren.  “Where did you get it?”

Witness.  “From the drawer of his desk.” 

Warren.  “How did he melt that piece of wax?” 

Witness.  “With a candle.” 

Warren.  “Where did the candle come from?”

Witness.  “I got it out of a cupboard in the room.” 

Warren.  “How long should you say the candle was?”

Witness.  “Perhaps four or five inches long.” 

Warren.  “Do you remember who lit the candle?”

Witness.  “I did.” 

Warren.  “What did you light it with?”

Witness.  “Why, with a match.” 

Warren.  “Where did you get the match?”

Witness.  “On the mantel-shelf in the room.” 

Here Mr. Warren paused, and fixing his eye upon the witness, he again held up the will, his thumb still resting upon the seal, and said in a solemn, measured tone:

Warren.  “Now, sir, upon your solemn oath, you saw the testator sign this will he signed it in his bed at his request you signed it as a subscribing witness you saw him seal it.  It was with red wax he sealed it a piece of wax about three inches long he lit the wax with a piece of candle which you procured from a cupboard you lit the candle with a match which you found on a mantel-shelf?”

Witness.  “I did.” 

Warren.  “Once more, sir upon your solemn oath, you did?”

Witness.  “I did.” 

Warren.  “My lord, you will observe this will is sealed with a wafer!”

The extreme patience illustrated in Wellman’s example was the key to “boxing in” the witness. Imagine the response the witness would have given had Mr. Warren barreled straight into his line of attack:

Mr. Warren:       Sir, you said on direct that the will was signed and sealed with red wax.

Witness:              Yes, sir.

Mr. Warren:       Yet we see hear it actually is sealed with a wafer, correct?

Witness:              You know, you are correct. The sealing was so unimportant I must have forgotten how it was done. I just remember us sitting around the table and he signed it and that was that.

The size of the wax stick, its location, where the matches were and who lit them all seem to be very trivial matters. So trivial, in fact, the witness saw no harm in fabricating the answers. He must have thought “Who would know?” But by building up the surrounding circumstances and committing the witness to a single precise version of events, Mr. Warren was able to “box in” his witness. How now could the witness claim that he merely forgot the type of seal when he just firmly committed with such great detail to the circumstances surrounding the sealing of the will?

Certainly such dramatic events such as the above illustration are few and far between in the daily practice of law. But the same technique can be used in depositions, family law temporary hearings, and evidentiary hearings in criminal cases.

Take, for example, a recent jury trial in which my client was accused of causing bodily injury to his wife. On the stand the complainant alleged that the entire matter started when my client punched her in the face unprovoked. Despite her contention that she had a bruise and redness under her eye for “days” after, the police report contained no mention of any marks to her face the night of the incident despite noting in great detail several abrasions on her arms. During the reporting officer’s direct testimony by the prosecution, he surprised me (and I think the prosecutor) by mentioning that he now remembers (some 15 months later) that there was, in fact, “red puffiness” under the complainant’s eye the night of the alleged incident that looked like she had been hit.

Here is how we were able to “box in” the officer and show that his sudden recollection was less than credible:

Defense:             Officer, you said you have been with the force for seven years?

Officer:                Yes

Defense:             And before that you were in the academy?

Officer:                Yes

Defense:             And like any school the police academy has interesting parts and not interesting parts, correct?

Officer:                That’s true.

Defense:             And for all the time you spent shooting guns and practicing defense techniques you spent twice as much time in a class room learning things like radio codes, constitutional law, and report writing, isn’t that true?

Officer:                That’s true.

Defense:             And while the classroom stuff was not near as fun you recognize then and certainly recognize now that things like report writing are critically important, correct?

Officer:                 Correct.

Defense:             In fact, you testified that domestic disturbance calls are one of the most frequent calls you have to make, correct?

Officer:                Correct.

Defense:             You said you have made over a hundred domestic disturbance calls?

Officer:                At least.

Defense:             And over time those calls and the facts of those calls and the people involved can start to run together, correct.

Officer:               Sometimes.

Defense:             So when you get called to court on a case, some 15 months later, that written report may be the only trustworthy way for you to remember what happened on a particular night, wouldn’t you agree?

Officer:                I don’t know about “only trustworthy” way, but yes it does help.

Defense:             I’ve read your report in this case. Is that a copy in front of you?

Officer:                 Yes.

Defense:             And I will tell you officer it is a well written report.

Officer:                Ok

Defense:             Does it surprise you that some of the reports your fellow officers write can be quite confusing?

Officer:                 No

Defense:             It appears to me that you must have paid close attention when they were covering report writing in the academy. You were clear to note things like demeanor, location, names, times…everything a solid report requires, isn’t that correct?

Officer:                I tried.

Defense:             They taught you in the academy how it was important to write all the critical facts in the report, correct?

Officer:                Correct.

Defense:             That is for your benefit if you are ever called to testify, correct?

Officer:                 Yes

Defense:             And for your benefit if you are ever questioned by your superiors for decisions you made?

Officer:                I guess

Defense:             And it is also important for the government prosecutors, so they know the strengths of the case  and how to proceed?

Officer:                You would have to ask them.

Defense:             In fact, in probably about 95% of your case the report is the only communication between you and the prosecuting attorney?

Officer:                What do you mean?

Defense:             In most cases, the arrested citizen is dealt with in the court system without you ever talking to a prosecuting attorney?

Officer:                I guess that’s right.

Defense:             Back to this case officer, you followed all yoour training in writing this report?

Officer:                Yes

Defense:             You even had [the complainant] fill out a written statement correct?

Officer:                  Yes

Defense:             And this was after you interviewed her?

Officer:                Yes

Defense:             And you interviewed her in the living room?

Officer:                 Yes

Defense:             It was not dark in there was it?

Officer:                No

Defense:             Then you filled out the family violence packet forms and were careful to note on the diagrams everywhere [the complainant] had injuries correct?

Officer:                 Yes

Defense:             And that included the abrasions and red marks on her arm and the scrape on her knee, correct?

Officer:                Yes

Defense:             And then, after my client was arrested by you, you completed a sworn probable cause affidavit for the local judge to review, isn’t that right?

Officer:                Yes

Defense:             And in that sworn affidavit you wrote again about the  injuries you observed, the demeanor of those involved, and what everyone at the scene told you, correct?

Officer:               Yes

Defense:             And this was a separate document from your report?

 Officer:                Yes

Defense:             But like your report it was done the night you arrested my client?

Officer:                 Yes

Defense:             In fact, within an hour or so of leaving the scene?

Officer:                Maybe two.

Defense:             When it was fresh on your mind?

Officer:               Yes

Defense:             Before you were called to any other domestic disturbances?

Officer:                Yes

Defense:             And you wrote the complainant was crying?

Officer:                Yes

Defense:             And you wrote she said they struggled over a cell phone?

Officer:                 Yes

Defense:             And you wrote she admitted pushing my client?

Officer:                Yes

Defense:             And you wrote my client was wearing a Romo jersey?

Officer:                 Yes

Defense:             And you wrote he asked to get a jacket because it was cold?

Officer:                Yes

Defense:             And you wrote that you noticed a chair knocked over?

Officer:               Yes

Defense:             And you wrote that she said she thought my client had been having an affair?

Officer:                 Yes

Defense:             And you wrote that you could smell a faint odor alcohol on my client’s breath and you saw, and I’m quoting, “a Bud Light tall boy” that was still “cold to the touch.” Correct?

Officer:                Correct

Defense:             And you wrote that there was a Samsung Nexus phone with the case removed on the table, correct?

Officer:                Yes

Defense:             You wrote that you observed abrasions and marks on her arm and the scrape on her knee, correct?

Officer:                Correct

Defense:             You wrote that [complainant] said my client hit her in the face.

Officer:                  Yes, sir.

Defense:             And you also wrote that my client denied that and said [complainant] actually pushed and grabbed him when he was trying to leave.

Officer:                That is what he said.

Defense:             You wrote with great detail like you were trained correct?

Officer:                 Yes

Defense:             Yet nowhere in this report did you ever write that you observed  “red puffiness” under [the complainants] eye?

Officer:                No, I did not.

Defense:             And you didn’t note it on the diagram of the injuries?

Officer:                 No

Defense:             And you didn’t put it in your sworn affidavit?

Officer:                No

Defense:             Three times you noted the injuries you observed and in none of those three did you mention “red puffiness” to the face or any other injury to the face did you?

Officer:                I guess not.

Clearly I still have much to learn from Mr. Warren’s example. Nevertheless, by being patient with the questioning of an adverse witness, we were able to “box in” the officer such that it would be extremely difficult for him to retreat to the “honest mistake” position so many “professional” witnesses rely upon when confronted with inconsistency between the testimony and the facts. In my example, the jury was left wondering how such an important detail, if true, could have been missed by the officer. I mean, even the mean old defense attorney admitted it was not a sloppy report that appeared hastily written.

By contrast, if I were to have approached the new evidence of injury with bluster or indignation (or worse by accusing the officer of outright of fabrication) it would have been much more difficult to establish through the officer that his training and otherwise solid report writing were compelling evidence that the failure to contemporaneously note the injury wasn’t an “honest mistake’ in report writing but rather was likely a false memory (or outright fabrication) developed in the time since.

As a final note (which we will discuss later in this series) it is important when cross examining to know when to STOP. So often we see lawyers lose all they have gained by executing a great “box in” cross with a dreaded “how” or “why” question. For the love of the spirit of Daniel Webster please JUST STOP. You as the story teller can provide the answer as to WHY in closing arguments.

Next Time:

Crushing the Cross Examination

Part Two: Proceed with Caution!

To be continued…..

Fort Worth Criminal Defense and Family Law Attorney, Mike Schneider
Fort Worth Criminal Defense and Family Law Attorney, Mike Schneider

P. Micheal Schneider is the President and Managing Attorney at the Schneider Law Firm, PC in Fort Worth Texas. The firm practices exclusively Family Law and Criminal Defense. Micheal Schneider has been named a Texas Super Lawyer by his peers as published in the Texas Monthly Magazine and has been named a Top Attorney six times by his peers in Fort Worth, TX Magazine.


Preparing for a Texas Deposition

Court cases are won and lost on the strength of the evidence. The biggest piece of evidence is usually the testimony of the parties and witnesses. This is why at the Schneider Law Firm we spend a lot of our trial preparation time with or clients reviewing their anticipated testimony. As a rule of thumb I like to prepare with my client a minimum of three hours for every one hour we anticipate they will testify.

There are two primary situations in which testimony is taken in Texas. The first is obviously in a court room with a judge and/or jury listening. The other is in a deposition. A deposition is a procedure whereby attorneys are allowed to question witnesses under oath outside the courtroom setting and prior to the trial.

In Texas criminal cases such as assaults, DWI, or drug cases, depositions are extremely rare. Testimony preparation is therefore geared toward the courtroom environment. In civil cases such as divorces, custody suits, or personal injury suits, depositions are routine and are often given great weight when deciding whether a claim has merit.

In either of these scenarios it is important to be prepared. In an attempt to get my clients prepared  for a Texas deposition I usually review the following list at the beginning of each meeting. Even though this is list specifically written for deposition preparation,  most suggestions contained apply equally to just about any scenario where testimony is being taken.

Deposition Prep Checklist

1.) Tell the truth
• Perjury in an official proceeding is a 3rd Degree felony
• Even falsehoods on a minor or irrelevant issue can be used to destroy your credibility at trial.
• Note however, telling the truth does not mean volunteering information…answer truthfully, but only what is ASKED.

2.) Bring nothing with you in the room unless I have reviewed and approved
• This includes personal notes
• TRE 612 allows an examiner to review any notes or documents used to refresh a deponent’s memory.

3.) Listen carefully, then pause
• You should listen to each question carefully
• Questions may not be as simple as they seem
• Do not be afraid to ask for clarification or rereading if the question is not understood
• The record of the transcript WILL NOT contain your pauses, so don’t worry about taking time to formulate your answers in your head
• Pauses also give me a chance to object if necessary.

4.) If a document is presented, read it CAREFULLY

5.) Private conferences with me during the deposition are improper and generally not allowed
• The only exception is to decide whether a question violates a privilege (Attorney/Client, Trade Secret, etc.)
• We can conference during breaks
• Despite this rule, I would rather you ask for a conference than answer a question untruthfully, inaccurately or in excess

6.) Discuss with me during a break if you need to change an answer
• Don’t just blurt it out on the record
• Small, technical changes can be when we are reviewing the transcript

7.) Qualifying answers
• When appropriate use the terms “To the best of my recollection,” or “I believe it was/is…”
• DO NOT qualify answers that you are factually certain about

8.) NEVER Speculate
• If you don’t know an answer, say so!
• Unless specifically asked for an opinion, don’t give one.
• If asked for date or time, only answer if specifically known. “On or about…” “I believe it was…”

9.) Answer only the question posed
• Don’t try to guess the next question
• Short answers are best
• Yes/No are ideal so long as accurate and not misleading
• If, and only if, a short answer is misleading should you explain

NOTE: Depositions are only one phase of a case…you will get time in trial to clarify your answers and present your own evidence

10.) If I say don’t answer, then don’t answer

11.) Objections are ruled on at a later date
• Most of the time you will still need to answer the question…but see #10
• Objections in a deposition are very limited and are usually just “place markers”
• Exceptions: Not Relevant, Privileged

12.) Don’t promise future help
• The law requires you answer questions, not make agreements
• Don’t agree to be available, produce anything, or look up anything

13.) Don’t get angry or emotional or rattled
• Don’t argue
• Don’t address the opposing party
• No name calling or abusive language
• Don’t project feelings about OP on the OC

14.) The examiner is NOT your friend
• Be polite, but vigilant
• Do not concern yourself with convincing the examiner
• Do not be concerned with the examiners confusion…if you have answered truthfully you have done your job

15.) Speak Clearly

16.) Be prepared for sensitive questions
• Inform me of worrisome issues so we can discuss

17.) Don’t assume the examiners summary of facts is correct
• Listen carefully
• If you have no personal knowledge of the summary then say so
• Don’t let examiner put words in your mouth

18.) If I object stop talking. Don’t start again until directed

19.) My objections may give hints as to what or how to answer

20.) No duets

21.) If you need a break, let me know

This is meant as a general overview only and is by no means a substitute for the advice of a good lawyer that is tailored to your situation.

P. Micheal Schneider

The P. Micheal Schneider Law Firm P.C.



Q & A: Ten Frequently Asked Questions about Temporary Orders Hearings in a Texas Divorce or Custody Case

Over my career at the Schneider Law Firm I’ve met with hundreds  of individuals contemplating a Texas Divorce or Custody suit. One of the most common questions that comes up in a Divorce or Custody consult is what can we do now to protect their children and assets. The answer in Texas is a Temporary Orders Hearing. Here are 10 frequently asked questions to help you understand the process.

1. What is a Temporary Orders Hearing?

A Temporary Orders hearing is a hearing that is held after a petition for Texas divorce or custody is filed with the court that puts orders in place until you can have a final trial or otherwise settle your case.  Not all matters are entitled to a Temporary Orders hearing.

2. How soon does a Temporary Orders hearing occur in a case?

Typically, Temporary Orders hearings are held within two weeks of filing your suit if a Temporary Restraining Order has been requested by a party.  If no TRO is requested the timing of the Temporary Orders hearing can vary depending on the urgency of the relief requested and procedural considerations.

3.  What is the difference between a Temporary Restraining Order and a Temporary Order?

A Temporary Restraining Order is a short term restriction on a person wherein, once served, that person cannot do certain actions such as sell or destroy property, cancel utilities, or disturb the children’s routine.  Unlike a Temporary Order, a Temporary Restraining Order does not require a hearing, but is only good for 14 days.  A Temporary Restraining Order allows the court to keep the parties’ status quo between the time of filing a suit and the actual Temporary Orders hearing.

4. What is the difference between a Temporary Order and a Protective Order? 

A Protective Order is an order that provides protection for a person after the court determines family violence has occurred and is likely to occur again in the future, wherein the Defendant is ordered to stay a certain distance from the Applicant and the Applicant’s home, employer, school, etc.  along with other restrictions as determined by the Court.  A Protective Order is different from a Temporary Order  in that  if a person violates a Protective Order, law enforcement may immediately take that person into custody, wherein violation of a Temporary Order leads to a possible contempt action which requires a hearing and proper notice to the person.

5. What is decided at a Temporary Orders Hearing?

At a Temporary Orders hearing, the Court may decide issues that need immediate attention during the pendency of a case.  For example, in a Fort Worth, TX divorce matter the Court may decide who remains in the marital home and who must vacate, temporary spousal support, payment of monthly expenses, and if there are children, who has primary possession of the children and who pays child support.  When children are involved, the best interest of the children is always the court’s utmost concern in establishing Temporary Orders.

6. How should I dress for a Temporary Orders hearing?

You should dress conservatively as if you were going to church or an important job interview. Generally, dark colors are preferred and all clothing should be properly fitted and hemmed. Your hair should be washed and combed and any makeup should be of a neutral color.

7. What should I bring to a Temporary Orders hearing? 

Typically, the local rules of your county will require each party to bring proof of his or her income as well as a detailed summary of the monthly expenses.  Additionally a litigant should be prepared to provide documentation or evidence for any issues they would like to address with the court for the purposes of establishing Temporary Orders. Examples of this are business records from Child Protective Services or the child’s school, police reports, bank statements, emails/texts or photographs.

8. How formal are Temporary Orders hearings?

A litigant should be prepared for a formal hearing and prepare and dress for such.  However, unlike a final trial, many times a Temporary Orders hearing is less formal in that a court reporter is not always available to take a record and many issues may be resolved by simply approaching the bench and discussing the matter with the presiding judge. In this regard, local custom varies and an experienced lawyer will know the particular court’s preference.

9. Can I appeal a decision of the judge regarding Temporary Orders? 

Yes, if Temporary Orders are decided by an associate judge, a litigant may appeal that decision to the district judge of that court. This is called a de novo appeal.  However, the litigant should be aware that there is a very short deadline to file such an appeal and should act promptly.

10. What happens if someone violates a Temporary Order?

If a party violates the Temporary Order, the other party may file for an enforcement of those orders and ask that the violating party be held in contempt of court.  If the Court finds that a party is in violation of the Temporary Orders, it may hold that person in contempt and punish him or her with fines and/or jail time and is likely to order the violating party to reimburse reasonable attorney fees to the moving party for having to bring such an action.


This is a very simple overview of the Temporary Order Process in a Texas Divorce or Custody Case. This is not meant to serve as specific legal advice. Each case is different. Hire a good lawyer!

Alison Porterfield, Attorney


If I Get Remarried, Will That Affect My Spousal or Child Support Obligations?

After the big decisions of a divorce are made, the tension that previously existed seems to calm down and life eventually starts to feel normal again. But get remarried and everything can get turned upside down once more.

While it’s certainly a big change, remarriage after divorce shouldn’t be avoided simply because you fear potential conflicts. Because spousal and child support obligations are some of the most obviously affected aspects of a divorce when a remarriage does occur, the court has specific ways of handling them.

Continue reading If I Get Remarried, Will That Affect My Spousal or Child Support Obligations?

How Do I Know if I Will Get Alimony After My Divorce?

“Am I going to get alimony after my divorce?” This is one of the most common questions we receive and it’s no wonder. You want to know that you’ll be covered financially, and surviving off of just one income is often extremely difficult for individuals after they get divorced. While alimony is often necessary, that doesn’t always mean the court will agree to it without serious consideration.

So before you make plans one way or the other, we’re here to help. The information below will give you a better idea of what to expect afterdivorce and how to know if you qualify for alimony.

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Planning for College During Divorce May Make Sense

When a divorce is over and done with and everything from alimony payments to child support has been sorted out, some individuals might feel as if the difficult part is out of the way. After all, other than ensuring that the correct parent claims the children on his or her taxes that year, that is pretty much it, right? Not so, if a Texas couple pursuing a divorce has children who are heading off to college.

With the cost of a college education soaring — roughly $14,300 at its cheapest and over $40,000 at its most expensive — paying for a highereducation can be a tremendous undertaking. Most college students and their families turn toward the FAFSA, or Free Application for Federal Student Aid, in order to help with the overwhelming cost. However, the FAFSA must also be completed by a parent in the case of a dependent student. In the case of a student of divorced parents, the custodial parent must fill out the FAFSA.

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Divorce Viable Option for Depression, Chronic Marital Stress

For various reasons, some individuals might feel compelled to stay in a marriage that has become exceptionally stressful. New research indicates that this may not be the best route for Texas couples. While a divorce might mean the end of a marriage, it can also be the start of renewed health.

It is a common thought that marriage can positively impact health. However, researchers set out to discern whether or not that common knowledge always holds true. After the conclusion of an 11-year study involving married couples, they found that stress in a marriage can cause individuals to be particularly susceptible to depression.

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Will Arnett and Amy Poehler Call it Quits, File for Divorce

Divorce is no funny business for two big-name comedians that have been separated for over a year-and-a-half now. Comedian Will Arnett finally filed for divorce from his funny-woman wife, Amy Poehler, who has appeared on “SNL” and “Parks and Recreation.” He is apparently seeking joint custody of their two sons, a similar request that many divorcing individuals in Texas make.

Only recently did 43-year-old Arnett — star of the wildly popular “Arrested Development” TV show — actually file for the divorce from his second wife, 42-year-old Amy Poehler. The comedic actor wants not only joint legal custody of the couple’s two sons, but join physical custody as well. Visitation rights were also included in the papers.

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High Rate of Domestic Violence may Influence Military Divorce

While it may often appear as though the divorce rate for military members is somewhat higher than their civilian counterparts, the reasons behind their divorces might not be as clear. As the overall rate for domestic violence has decreased in America, military families are at an elevated risk for domestic violence. In Texas, this may play a role in military divorce.

Twenty-one percent of incidents of domestic violence in the United States can be contributed to veterans who have been involved in combat. There has been a demonstrated link between post-traumatic stress disorder in a veteran returning from a deployment, and the high incidence of military members embroiled in domestic violence disputes. The link between PTSD and domestic violence was supported by recent research. It demonstrated that veterans who experienced PTSD were far more likely to behave violently toward a partner.

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Texas Treatment Arrested for Failure to Make Child Support Payments

For some children, child support doesn’t just provide “extras,” such as the ability to participate in school sport teams or extracurricular activities. It provides the financial means to keep a roof over their head and food in their stomachs. In the absence of this support, life can become difficult and unpredictable for both the child and the custodial parent. Texas police recently arrested 15 individuals who reportedly failed to make timely child support payments.

Continue reading Texas Treatment Arrested for Failure to Make Child Support Payments