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Effective Trial Techniques and Preparations

By: Jeffrey Fiorello, Esq., Christine C. Fitzgerald, Esq., Timothy F. McGoughran, Esq., Rita M. Aquilio, Esq., Thomas DeCataldo, Esq. and Jenna N. Shapiro, Esq.[1]

          In New Jersey, due in part to the judicial shortage and backlog of cases, matrimonial and other family law trials are few and far between and scheduling largely varies from county to county. While the large majority of cases in New Jersey settle without the need for a trial, many settle on the eve of trial or in the middle of trial.  According to the 2021-2022 Judiciary Annual Report, in New Jersey between July 2021 and June 2022, there were 43,498 new divorces filed and 42,970 resolved; 61,698 non-dissolution cases filed and 57,240 resolved; and 48,376 new domestic violence filings and 48,412 domestic violence cases resolved. [2]  Although the Annual Report does not distinguish between those cases that were resolved without trial and those resolved through a trial, it has been reported that roughly 2% of cases go to trial in New Jersey. 

Trial preparation and techniques are critical skills that attorneys need to have as the longer you practice, the more likely you will have one of the 2% may be tried before the Court.  Regardless of whether you are taking cases to trial, the techniques and preparation that goes into a trial can help a case settle. Attorneys should be using their trial skills in their motion practice, oral arguments, negotiations, settlement conferences, and even in mediation. This article is to guide attorneys through the process of trial preparation and the actual trial itself.

Many years ago, Frank Donahue, Esq. prepared a “Trial Notebook” that outlined his method of trial preparation.[3]  This article is meant to be an update and we will discuss the various stages of preparation and trial, including trial preparations, documents that are required, direct examination of your client and third party witnesses, cross examination of party opponents and other third party witnesses, expert witnesses, evidence, and opening and closing statements.

Preparation for Trial

Trial preparation is daunting.  Briefs, exhibit lists, pre-marked exhibits, witness lists, motions in limine, other pre-trial motions, updated Case Information Statements, and stipulations are all due before the trial even begins either in accordance with the Court’s Trial Order or R. 4:25-7(b) and Appendix XXII.  Although every lawyer may have a different starting point, you must always identify the issues in the case and what elements or contentions you must prove so that you can then determine the evidence, the witnesses and start developing a theme or story of the case.  Once you have identified the issues, it is important to have a full understanding of the law for each issue so you know the elements that you have to prove.  It is often during the drafting of the brief that the theme begins to emerge.

Trial Brief

          A trial brief at a minimum should contain a background, facts related to the issues, procedural history and other facts about the case, legal analysis of each issue, and the determinations that you want the Court to make on each issue. Each section has various facts and information that is necessary to make it a full trial brief.  As often noted in correspondence from the Court, any issue not briefed with specificity will be deemed waived, so it is critical that the brief be thorough and include all issues.  

          Since the analysis will apply the law to the facts, start by preparing a list of issues and researching the law on those issues.  In fact, you want to prepare the full legal analysis section so that you know what the factors or the facts that you need to prove and the facts that you plan to apply so that you can highlight the appropriate and crucial facts for the background section. It is even more helpful if you write your legal analysis as you want the Court to write the reasoning in a decision.  Of course, in addition to being well-written, the law cited and the application of the facts to the law must be accurate and correct.  If your legal analysis is correct, then the easier you make it for the Court to use what they can from your analysis, the better!

  The background and fact section gives you the chance to craft your client’s story that you want the Court to hear. Before preparing the background section, review the law and legal analysis section to see what facts are most crucial to the legal arguments.  In a typical divorce case, the background information that should be included is the parties’ marriage date, any premarital assets that existed at the marriage, details about their marriage relationship, the care and custody of the children during the marriage and subsequent to the filing for divorce, the financial circumstances of the parties during the marriage and subsequent to the date of complaint, including their respective employments and income and assets and liabilities, and sometimes what led to the filing for divorce.  In some cases, the actions of the parties during the pending litigation will also be noteworthy and addressed in the background section and the facts.  If there is domestic violence, again this can be noted in the background section and is primarily relevant to issues of tort claims and custody and parenting time.  It is important to know the factors of any statute or case law that a court will be analyzing so you can ensure that the facts that apply are in your background and fact section of the brief.

In the procedural history, you should detail the date of complaint, the motion practice and subsequent orders entered, any discovery issues, and any other issue that arose during the litigation.  This is the section that you want to highlight missed deadlines, failure to provide discovery, and any issues with violations to bolster any argument for counsel fees based on bad faith.

The last section of your brief is a list of what you are asking the Court to do, similar to what you would do in a Notice of Motion. 


          Although we discuss evidence below, you need to think about your evidence before you even start trial as the exhibit list and pre-marked exhibits are due to your adversary and the Court before trial even begins.  There are several different ways that exhibits can be organized. Some attorneys prefer to list the exhibits as they intend to use the exhibits – in other words, in the order that the exhibits will be used.  Others prefer to group by type of document, such as pleading, case information statements, orders, motions, etc.

          Exhibits should be organized in a way that makes it easiest for the attorney to find the exhibit during the trial.  Most attorneys also add their exhibits to a binder or binders.  Two sets of exhibits should be sent to the Court (for the Judge and the witnesses), one set to your adversary, and one set for you to use during trial. 

Witness Lists

          In addition to advising your adversary in advance of the evidence you will be using; you must also prepare a witness list and some Courts will ask for a general description of what the witness will be testifying about.  As the attorney, you should speak with each witness before you add them to the list to ensure that their testimony will be helpful to your client’s position.  Although you do not have to call as a witness every person on the witness list, you do need to have witnesses listed that you want to call unless they are strictly a rebuttal witness. 

          Some witnesses are friendly and will come to Court simply by the client or you asking them to come and may even bring documents with them that you ask them to bring.  Other witnesses will need to be subpoenaed.  Pursuant to R. 1:9-1, a trial subpoena for a witness’s testimony should be served at least five (5) days in advance of the trial.  To be clear, five days in advance of the trial – not of the testimony.  You may also consider adding a list of document that you want the witness to bring to the first day of trial.  The last point that is important with respect to witnesses if whether you want to call the other party as a witness.  While you should always list the other party as a witness and should send a subpoena asking for at least updated financial and income documents, you should decide whether you wish to have the witness testify in your case in chief or would you prefer to cross examination the other party.


          The most typical pre-trial motion is a motion in limine. Pursuant to R. 4:25-8, a motion in limine is an application returnable at trial and is generally regarding the admissibility of evidence and is due at the time of the pretrial exchange of documents.  Each motion in limine should also embrace one issue.  The remaining rules related to motions in limine can be found in R. 4:25-8.

          Another frequently filed pre-trial motion is a motion to bar an expert’s testimony.  This is considered a dispositive motion that could affect the whole case.  As more fully addressed below, one of the common reasons for seeking to bar an expert from testifying is that their testimony and/or report is a net opinion under N.J.R.E. 703, which requires that an expert opinion be supported by facts or data either in the record or of a type usually relied upon by experts in the same field.  The net opinion rule states “that an expert’s bare conclusions, unsupported by factual evidence, are inadmissible”. [4]   The net opinion rule “requires the expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.”[5]  Without a sufficient factual foundation, an expert opinion is considered a net opinion and is inadmissible.[6]   Expert testimony should not be received if it appears the witness does not possess the facts to state an accurate conclusion instead of conjecture.[7] 


          Throughout this article and the presentation, themes will be discussed ad nauseum. Themes are important.  Day in and day out, Judges hear similar stories and similar complaints from multiple litigants and attorneys.  What makes your case compelling?  Why should the Judge think of your case differently?  The theme to your case may not develop right away, but you should start thinking about those themes or the potential themes as you craft the trial brief and exhibit list and prepare for opening statement.  If you can decide on the theme before you submit your pre-trial exchange, you can weave your theme in all of the documents so that you have a cohesive message.

          How do you decide what your theme is?  Each case is different so there is no one way to create a theme.  Sometimes a theme will be a catchy phrase, or a concept that there is a famous quote about, or even an analogy to some legal argument that has already been used and proven.  It is not an easy task and takes time and skill to develop and make themes a part of every case.

Opening and Closing Statements[8]

          A family law trial is admittedly one of the most difficult aspects of our profession. The expectations that we have, coupled with our client’s expectations, are substantial. The pressure and feeling of responsibility becomes more acute as the first day of trial approaches. We must distill mountains of information into a persuasive, thematic presentation that satisfies your client, while proving your case to the Court. Since not every case can be concluded through negotiation or at Mediation, trial skills are a necessity. Trials are inherently fluid and unpredictable, so preparation is key. A powerful opening and closing statement are integral to trial preparation. They will frame your client’s story and allow you to concentrate on focusing the Court on those salient details.

Opening Statement: Theme of the Case

          Before you can craft an opening statement, you must actually think about the end of the case. This means knowing your client’s goal and the desired, specific outcome. Once you have that case narrative in a streamlined fashion, you can encapsulate your theme of the case. What are the emotional aspects of this case? Try to boil it down in simple statements so that the Judge can connect to your client.

          The theme for your case must be coherent – why the relief you are seeking for your client is the right thing for the Court to do in this case. A trial theme is similar to the use of a musical score in a film; it helps crystallize moments for the Judge to remember that are at the core of the case.

          A complex trial may have more than one theme, especially in those matters that have both custody issues as well as valuation of a business. While it may not be possible to have an overall theme is such a matter, it is recommended that you do not exceed two or three themes in a trial to keep it streamlined. A trial theme will anchor the Judge with a reference to make your case memorable. Reiterate it and go back to it during various times in the trial- in the opening, during examinations, and in your closing statement. 

A Roadmap for the Court

          Once you have your theme, you can begin to prepare your opening statement. Prepare an outline of your opening statement, with a context for your evidence and your requested relief in mind. “Persuasion through evidence” is something that still resonates from law school, and it applies to trial.

          Some attorneys prefer to work from an outline and will practice their opening statement based on those bullet points. Others like to write out a detailed script, with every word and idea captured and then commit it to memory, so decide what works for you. In either case, do not waive the opening statement since it is your prime opportunity to “set the stage”: introduce your theme of the case, the theory of the case and contextualize your evidence that will be presented over the course of the trial. However, remember the old saying that “less is more” since you do not have the time (or the court’s patience) to detail everything that will be presented at trial. Do not be argumentative in an opening statement, but rather, present a compelling set of facts that you will be presenting so that you capture the Judge’s attention from the outset. For example: “This case is about love- Mr. Doe’s love of money and control.”

Preparation/Keep in mind:

  • Decide if you are going to use an outline with bullet points or a script that you commit to memory

  • Set the stage by introducing your theme of the case

  • Present a context for the evidence that you will be using

  • Don’t be argumentative, be compelling and persuasive

  • Go in chronological order for clarity

  • Practice, practice, practice so that you make a stellar first impression

 The Closing Statement

          There are two different schools of thought regarding closing arguments; some Judges prefer a written summation while others prefer an oral closing. There may also be the opportunity for a hybrid of the two, with a brief oral closing statement followed by a written summation to be submitted on a date certain. A closing statement is the “full circle” moment when you clarify and make sense of your evidence in the context of your theme of the case.

          Focus on the strengths and merits of your argument rather than solely on your opponent’s weaknesses. The strengths of your case will resonate more with the Court. Communicate to the Court why your requested relief is the fair and right thing. Refer to specific moments in the trial- whether direct testimony that was particularly powerful, or an exhibit that punctuates your argument – which will be memorable for the Court. Summarize your arguments while emphasizing the theme of the case, the evidence presented and the law. Unlike an opening statement, where you refrain from being argumentative, the closing statement is the place to argue the significance of your evidence, emphasize your client’s strengths and your opponent’s weaknesses.


  • Determine the format- oral or written (or hybrid)

  • Weave the theme of the case into your closing

  • Underscore the strengths of your case (and explain any weakness in your case)

  • Refer to the weaknesses of your adversary’s case but don’t go “overboard”

  • Combine the law, evidence and highlights for a seamless closing 

  • Argue facts, don’t give your opinion

In sum, opening and closing statements are integral to effective trial technique and preparation. These statements set the tone in a cohesive and persuasive manner to support the theory of your case.

Direct Examination

What is the goal when it comes to preparing direct examination? The goal is obviously to prove your client’s case.  Direct examination is your opportunity to show how compelling the facts are in a way that establishes the merits of your case as well as your client’s credibility as they are telling their story.  Through direct examination, you have the opportunity to make your client’s story clear to the listener. Here is where you show how the elements of the burden of proof are either present or absent. This is the perfect opportunity to show how you can prove or disprove a case depending on who has the burden of proof.  A tip to always keep in mind is that if you can get the judge engaged and to understand the story from your client’s perspective- it is easier for the judge to assess credibility, weight the evidence and determine whether the elements of a particular aspect of the case are either proven or disproven.

When preparing your direct examination questions, you should have the elements of each point you are trying to prove or disprove. You are also going use the witness list that you provided to the court right before trial. Using your witness list, you are going map out how you are going to connect the elements you are trying to prove or disprove by eliciting through their testimony the answers to make your case.  And your job here is to ask the right questions during direct examination to pull the answers from the testimony that will either prove or disprove an element in the case.

Another aspect of your direct examination is to establish credibility not only for the witnesses but also for the merits of your case.  The way to achieve this is by telling or eliciting the same story through your witnesses so that they validate your client’s story. Remember that each witness brings a particular perspective of that story and you have to make sure that each testimony provided is consistent and tied well together for the trier of fact who is considering the information to establish credibility. 

Conducting a good direct examination is an art, mastered by the practice in handling different types of witnesses.  Practitioners differ in how they prepare for direct examination.  Some lawyers prepare an outline using each element and the key points that they want to elicit from each witness.  Other lawyers write out each question for each witness. Writing out the questions helps in preparing a witness for trial and gives you an insight as to how this witness will respond and what areas the witness needs to work on. Ultimately, it’s a matter of preference and comfort and what type of witness you have.

The rule for asking direct examination questions requires the use of open-ended questions that use the following:







What happened next?

Can you tell me more?

Can you explain that?

Remember that no leading questions are permitted during direct examination questions. The reason for this rule is for the witness to be able to establish credibility by telling their story instead of simply responding “Yes or No”.  The rule also eliminates the opportunity for the attorney to either testify or spoon feed the answers to the witness thereby taking away from their credibility.

A good direct examination is developed by how you have structured and organized your case prior to starting trial.  You must know: 1) What are the issues or elements to be proven? 2) Who are your witnesses? 3) What evidence/exhibits are you using to prove each element? 4) Lay the foundation for each exhibit and 5) Anticipate and be prepared to handle the objections.


  • No Leading questions. If you struggle with this, force yourself to write the questions out.

  • Keep questions short, concise and tailored. No compound questions.

  • Draft questions that elicit vivid responses from the witness. This is done so that you keep the judge engaged and seeing things as if they were in your client’s shoes. (A good direct examination should elicit testimony that permits the listener to see, experience and feel whatever your client is narrating.)

  • The questions should start with the witness’ personal background. (So that the judge can understand the purpose of this witness)

  • Lay the foundation by asking questions that explains why your witness is there to testify.

  • Ask questions of your witness as to what they saw, felt emotionally, experienced or heard. (Be careful with Hearsay statements here)

  • Ask questions that show the importance of why you are using this witness or show why this perspective is important to your case.

  • Introduce evidence that supports the elicited testimony from the witness.

  • Know your rules of evidence.

  • Be prepared to handle objections.

Cross Examination[9]

For all of us who have tried cases over the years we all know the scariest part of the trial is when our client is on the witness stand, on both direct and more importantly during cross examination.    It is at this point where we can no longer cloak the client with our reasonableness and smooth talking.   They are nervous and not familiar with being in the role of witness, in the “hot seat” with everyone watching, the spouse, the judge, your adversary and anyone else in the courtroom.  This is a frightening situation for most people.  They are on their own and thus most likely to say or do things that are not necessarily in their best interest.  They are also likely to be overly defensive about their answers.   

We also must be mindful that the cross examination is being done not for a jury but for a trained fact finder, the judge or arbitrator.   Therefore, dramatics in cross examination do not play a significant role.  The “gotcha” moments don’t have the same effect on an overworked judge as they do on a jury.

“You may cross examine the witness”, the words trial lawyers live for.   This sets the stage for the most critical part of any trial, the cross examination of the adverse party.    These rules also apply to cross examination of any witness including a adverse third party fact witness.   Professor Irving Younger stated there are ten rules of cross examination[10]: 

1.     Be brief;

2.     ask short questions using plain words;

3.     ask only leading questions;

4.     do not ask a question if you do not know the answer;

5.     listen to the answer;

6.     do not quarrel with the witness;

7.      do not allow the witness to repeat his or her direct testimony;

8.     do not permit the witness to explain;

9.     avoid asking one question too many; and

10. save the explanation for summation.

Let me say my favorite is not to ask too many questions.   Make your points and move on.  That is why it is important to start with your most important points to get the judges attention and destroy the testimony of the witness if you can.

Your objectives are to redefine the story from the direct examination.  To impeach the witness.  To obtain helpful admissions and concessions.   To introduce additional evidence.   To cause the judge to dislike or distrust the witness.   To make the judge believe you over the narrative given by your adversary.  Finally, to preview your closing summation.  In each cross examination it will be rare that all these goals are achieved but these should be your goals.  You don’t simply cross examination for the sake of it, there has to be some goal to the cross examination and if you don’t have goal then maybe cross examination is not necessary.

Here are some additional general tips for conducting an effective cross-examination in a divorce case in New Jersey:

  1. Be Prepared:

  • Thoroughly review all the relevant documents, evidence, and testimony before the cross-examination.

  • Prepare a list of key points you want to cover during the cross-examination.

  1. Establish a Clear Strategy:

  • Identify the specific issues you want to challenge or bring to light.

  • Develop a strategy to discredit or challenge the credibility of the adversary party's testimony.

  1. Maintain Control:

  • Stay calm and composed during the cross-examination.

  • Avoid getting into arguments or emotional exchanges. 

  1. Don’t Ask Open-Ended Questions:

  • Frame questions in a way that requires detailed and specific answers, preferably yes or no.

  1. Use Leading Questions:

  • Use leading questions to guide the adversary party to admit or deny specific facts that support your case.

  • Be careful not to ask compound or confusing questions.

  1. Listen Carefully:

  • Pay close attention to the adversary party's responses.

  • Be prepared to adapt your strategy based on their answers.  This is very important. You never know when you are going to get a response you did not expect or prepare for.  A good trial lawyer will be able to pivot when necessary to follow possibly helpful testimony while staying on course with their original objectives for the cross examination.

  1. Challenge Inconsistencies:

  • Point out any inconsistencies between the adversary party's current testimony and previous statements or evidence.

  • Use prior statements (depositions, interrogatories) or documents to impeach their credibility.

  1. Highlight Motivations:

  • Explore the adversary party's motivations and biases that may affect their testimony.  This is especially true with third party witnesses that  will have some obvious bias, such as family members, close friends, company accountants or employees of the adverse party.

  • Question any potential conflicts of interest.

  1. Stay Focused on Relevant Issues:

  • Stick to the relevant issues and avoid unnecessary diversions.

  • Focus on facts that are legally significant to the divorce case.

  1. Be Respectful:

  • Maintain a professional demeanor even if the adversary party becomes hostile or uncooperative.

  • Avoid personal attacks.

  1. Seek Admissions:

  • Attempt to get the adversary party to admit key facts or concessions that support your case.

  1. Use Exhibits Effectively:

  • If you have exhibits or documents, use them strategically to support your questions and arguments.  I find that having your exhibits all set for cross examination allows for a nice road map through your examination.

  1. Know When to Stop:

  • Once you have achieved your objectives or gathered the necessary information, consider concluding the cross-examination.  This is sometimes the hardest thing to do.  You don’t want to miss anything but when you have made your points, and if you were prepared, know when to stop.

Preparation is of course key to an effective cross examination.  Knowing the facts of your case will make it much easier to pick up inconsistencies in the adverse witness direct testimony and allow you to hone on those and discredit the witness.   The Greeks considered cross examination fundamental to the persuasive process and that stands true today in the search for truth for the fact finder in our justice system.

 The Rules of Evidence[11]

YES. They do apply. Those pesky little rules you learned all those years ago in law school and have not used since deciding to practice matrimonial law, do actually apply. Although rarely adhered to, the Rules of Evidence play a crucial role in ensuring fair and just proceedings. The mastery of the Rules of Evidence is an indispensable skill for lawyers practicing in New Jersey, especially in family law.  As so many of our colleagues simply do not know or believe the Rules of Evidence have any place in our practice, a good grasp of these rules can make a good trial lawyer great.

There are several reasons why lawyers in New Jersey should be well-versed in the rules of evidence:

  • Ensuring Admissibility: The rules of evidence govern what information can be presented in court. Lawyers must navigate through these rules to ensure that evidence is admissible. Knowing the nuances of admissibility helps attorneys present a strong and legally sound case.

  • Building a Credible Case: Credibility is paramount in the legal profession. Lawyers who are adept in the rules of evidence can effectively present their case in a manner that enhances the credibility of their arguments, witnesses, and evidence. Not only does a firm concept of the Rules of Evidence help a lawyer’s credibility, but the Rules of Evidence can be used to undermine (or build) the credibility of a witness testifying.

  • Effective Direct and Cross-Examination: Skillful examination and cross-examination of witnesses are critical in presenting a persuasive case. Lawyers need to know how to elicit relevant information while adhering to the rules of evidence. This skill can significantly impact the outcome of a case and set you apart from your adversary.  Effective use of the Rules of Evidence can help maintain order and efficiency in the courtroom for the Court. It ensures a structured and organized presentation of evidence. Ensuring that proper trial technique is used helps to prevent confusion.  Examples of this can be preventing compound questions, avoid leading the witness, and ensuring that experts are properly qualified to testify.

  • Preventing Unfair Prejudice: The Rules of Evidence are designed to prevent the introduction of irrelevant or prejudicial information that could unduly influence the Court's decision. This is especially important in sensitive family matters where emotions can run high. I find this most apparent with the presentation of text messages in trial. Providing a text message without the complete conversation is often misleading. The Rules of Evidence can prevent this. This one simple Rule, Rule of  Evidence 106, the Rule of Completeness will become your new best friend in a trial.

  • Avoiding Objections and Appeals: Lawyers who are well-acquainted with the Rules of Evidence are less likely to make errors that lead to objections or appeals. This knowledge helps in conducting a smoother and more efficient trial process. The Court will appreciate your ability to know how to handle the courtroom, the witness, and the evidence. Likewise, your ability to make proper and timely objections will ensure that your client is receiving a fair trial, both in the questioning and admissibility of witnesses.

  • Strategic Decision Making: Knowing when and how to introduce evidence is a strategic decision. Lawyers who understand the rules of evidence can make informed choices about what evidence to present and when, contributing to the overall effectiveness of their legal strategy.

For family lawyers in New Jersey, a comprehensive grasp of the rules of evidence is not just an advantage but a necessity. It underpins the ability to construct compelling legal arguments, protects your clients' interests, and ensures a fair and effective trial. A lawyer's proficiency in the rules of evidence is a cornerstone of their ability to navigate a courtroom in New Jersey and provide exceptional representation for their clients and will undoubtedly set you apart- from a good lawyer to a great one.

The Use of Experts in Family Law Matters[12]

Before relying upon expert testimony in New Jersey Family law cases, it is important to be mindful of the pertinent rules that govern the use of such witnesses. When deciding to utilize an expert, New Jersey family attorneys must first be guided by N.J.R.E. 702 to determine whether the use of an expert is authorized. N.J.R.E. 702 provides that an expert may testify “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” If the proposed witness is “qualified as an expert by knowledge, skill, experience, training, or education,” they may testify thereto in the form of an opinion or otherwise.

Under New Jersey law, there are three basic requirements for the admission of expert testimony:

(1) The intended testimony must concern a subject matter that is beyond the ken of the average juror;

(2) The field testified to must be at a state of the art that such an expert’s testimony could be sufficiently reliable, and

(3) The witness must have sufficient expertise to offer the intended testimony. [13]

The proposed use of an expert does not have to be in the form of an opinion, as our Courts have held that a professional nurse may testify as an expert without offering any opinion, but rather to translate into lay terms a summary of extensive medical records.[14] The use of experts to simply provide information in common parlance without expressing a potentially polarizing opinion can be helpful if the parties are met with issues involving a medical condition, or complicated tax issues.  

By and large, most situations in family law disputes requiring experts are recurring and the courts are accustomed to seeing experts in the roles detailed above. Nonetheless, if a practitioner intends to rely upon expert testimony at trial, it would be prudent to be prepared with a foundation for why expertise is required to assist the Court so as to avoid a potentially awkward situation where a practitioner must explain to his or her client why the Court is unwilling to entertain at trial an expert report the client paid to obtain, likely at a significant expense.

Assuming a practitioner has justified the need for an expert, a decision must be made as to when to engage the expert. It is almost always prudent to establish reasonable expectations for family law litigants as early in the representation as possible. For many practitioners, the first opportunity to discuss the potential use of experts is during an initial consultation once an attorney has confirmed that an expert is likely to be needed during the course of the representation. It behooves practitioners to discuss the need for expert witnesses at this initial meeting, so that the time and expense of hiring an expert does not come as a surprise to the client. This discussion presents an early opportunity for the attorney and the client to discuss numerous decisions that will impact the direction of the case, including:

  • When to engage the expert? (i.e. immediately, after unsuccessful settlement efforts, or as a potential rebuttal expert)

  • the advantages and disadvantages of utilizing a joint expert versus engaging one’s own expert;

  • Whether to file an initial pleading and commence litigation, or to pursue alternative methods of dispute resolution;

  • Is an expert likely to support the position asserted by the client?

Depending upon the nature and exigency of the issue at dispute, there are occasions where settlement efforts can be undertaken before investing the time and expense in obtaining an expert report. For example, it is relatively common practice for parties to attempt to resolve any custody and parenting time issues before engaging an expert to conduct a custody evaluation. If successful, the parties can generally avoid the expense and delay of participating in a custody evaluation over the course of several months. 

However, other issues can be more complex without the immediate assistance of an expert. Very often, family law disputes involve business owners or complex income streams which require the retention of a forensic accountant to opine as to the value of complicated marital assets, or to opine as to a spouse’s true income for support purposes. In these instances, most laypersons and practitioners lack sufficient knowledge to ascribe a value to a business, or to interpret complicated income streams. While the parties are free to stipulate for settlement purposes, they would be doing so without an informed basis as to the figures they are utilizing.

If a party is settlement minded, it may also prove useful and economical to engage a joint expert, as the cost is generally allocated between the parties and the report is typically neutral and objective. On the other hand, this can contribute to greater delay and expense if a litigant disagrees with the joint expert’s opinion, and engages his or her own expert at a later date. In other situations, some party’s will prefer to review the expert report of the adverse party, and make a determination at such time whether a rebuttal expert should be engaged. These complexities impact whether it is necessary to engage an expert early on in a dispute, or whether settlement efforts can be undertaken before making a final decision to hire an expert.

The time to make this determination will not be unlimited, as if one spouse has commenced a litigation in the Family Part, a Case Management Conference will be scheduled pursuant to R. 4:5B-2. During this conference, the Court will conduct a hearing to assist with discovery, narrow or define the issues to be tried, and promote the orderly and expeditious progress of the case. Case Management Conferences are conducted in various different formats, depending upon the county where venue is situated, and the judge presiding over the case. Some courts require all parties and counsel to appear in-person, while other hearings are conducted telephonically with counsel, and many counties permit the filing of a Consent Order to avoid the hearing entirely. However, all practitioners should be aware that the initial Case Management Conference is the appropriate time to raise the need for expert testimony. Doing so at this early juncture ensures that the Court is aware of a party’s intention to rely upon expert testimony, and to implement time frames for the completion of the expert’s report.

As mentioned above, some litigants will prefer to first review an adverse report before deciding whether to engage an expert. If this is the agreed upon approach, practitioners are wise to raise the issue with the Court during a Case Management Conference and not assume they will be permitted to engage an expert at a later stage of the dispute. The admissibility of rebuttal evidence rests in the trial judge's sound discretion.[15] After the Court issues a Case Management Order, the parties will likely be required to engage in the formal exchange of discovery via interrogatories. Pursuant to R. 4:17-4(e), it is essential that a party disclose its intended use of an expert when responding to interrogatories, or the party could be barred from utilizing an expert at trial.

Typically, the Case Management Order, or perhaps a pre-trial Order, will require that experts be identified, and their reports be exchanged. Practitioners must be aware of these stages of a case so that they can address and honor any appropriate deadlines when choosing to engage an expert, so as to ensure there are no objections from the adverse party, and no basis for the Court to bar the report.

When working with an expert in a family law matter, it is important to avoid situations that place the practitioner in a difficult position with his or her client. These can include:

  • Hiring an expert that does not have the requisite qualifications pursuant to N.J.R.E. 702;

  • Failing to timely produce a report and having it barred by the Court;

  • Hiring an expert that’s findings do not support the goals of the client;

  • Having an Expert report barred as an impermissible net opinion pursuant to N.J.R.E. 703;

  • Allowing sensitive or damaging materials to be obtained in discovery pursuant to R. 4:10-2(d)

As stated above, it is critical that practitioners be proactive regarding deadlines imposed by the Court for the disclosure and exchange of expert reports. While R. 1:1-2 allows for the Rules of Court to be relaxed in the interests of justice, New Jersey law provides that this is the exception and not the rule. Romangola v. Gillespie, Inc., 194 N.J. 596 (2008). Deadlines should be taken seriously, and if a practitioner does not expect to meet a deadline, it would be prudent for the lawyer and the client to proactively address the situation with the Court rather than to simply produce an untimely report and rely upon the Court’s leniency.

Additionally, N.J.R.E. 702 requires that an expert be “suitably qualified and possessed of sufficient specialized knowledge to be able to express an expert opinion and explain the basis of that opinion.”[16] Family law clients expect that their attorneys will engage qualified experts, and a failure to thoroughly vet the qualifications of one’s expert could result in the witness not being qualified as an expert. This creates an awkward pre-trial issue that an attorney must explain to the client, and the lack of an expert could prove fatal to a client’s case depending on the nature of the dispute.

Practitioners must also confirm that an expert based his or her opinion on reasonably relied upon by experts in that particular field upon the subject.[17] An expert’s bare conclusions, unsupported by factual evidence or other data, are inadmissible as mere “Net opinions.”[18] This rule requires that an expert give the “why and wherefore” of his or her opinion, rather than a mere conclusion.[19]

Family practitioners must also remain cognizant of the rules governing discovery and that there are limitations on the confidentiality involved with using experts. While R. 4:10-2(d) is fairly expansive in the protections afforded to communications relating to trial preparation, it does not constitute an outright privilege and there are situations where clients and experts do not enjoy confidentiality. For example, litigants participating in custody evaluations have no confidentiality with the expert and essentially every statement made by the client and every document submitted to the custody evaluator is discoverable.

Finally, attorneys should manage the expectations of clients and attempt to confine the client’s objectives to a reasonable and good faith position when hiring an expert. If a party’s expert is identified, and the expert report does not ultimately support the client’s objective, it can be damaging if the report was previously identified but is not utilized at trial. The Supreme Court of New Jersey allows an adverse inference to be drawn if a previously identified witness does not appear at trial in certain situations. The rationale is as follows:

the failure of a party to produce before a trial tribunal proof which,

it appears, would serve to elucidate the facts in issue, raises a

natural inference that the party so failing fears exposure of those

facts would be unfavorable to him.[20] 

Much like any other area of trial work, the effective use of expert witnesses in family law disputes turns on the preparation of the attorney, and well-conceived strategic decision making by the client. When used properly, expert witnesses can greatly improve a client’s presentation at trial and make it easier for an attorney to achieve the client’s objectives.


          Trials and trial work are hard and exhausting, but they can also be fun and invigorating.  We have all seen the scene where Tom Cruise is questioning Jack Nicholsen in A Few Good Men or Dustin Hoffman’s emotional testimony in Kramer versus Kramer. This is what people think we do as attorneys and probably why some of us became lawyers.  Trial work takes practice and time to craft and to create your own authentic style.  This article and presentation is intended to change the way you think about trials and to help you learn some tips and techniques to become the best trial attorney.


[1] Jeffrey Fiorello, Esq. is a partner at Cohn, Lifland, Pearlman, Hermann & Knopf, LLP, located in Saddle Brook, New Jersey and is the Chair Elect of the Family Law Section. Christine C. Fitzgerald, Esq. is a partner with Seiden Family Law, LLC, located in Cranford, New Jersey and is the Treasurer of the Family Law Section.  Timothy F. McGoughran, Esq. is a founding partner of the Law Office of Timothy F. McGoughran, LLC, located in Ocean, New Jersey and is the President of the New Jersey State Bar Association.  Rita M. Aquilio, Esq. is a partner at Lawrence Law, with offices in Watchung and Red Bank, New Jersey.  Thomas DeCataldo, Esq. is a partner at Manzi, Epstein, Lomurro & DeCataldo, LLC, located in Montclair, New Jersey. Jenna N. Shapiro, Esq. is a partner at Fox Rothschild and practices out of their Princeton office.  Rita, Thomas and Jenna are all members of the Family Law Executive Committee.

[2] Chief Justice Stuart Rabner & Administrative Director Glenn A. Grant, Annual Report of the New Jersey Courts: Court Year 2021-2022 (2022), p. 50. 

[3] We thank Frank Donahue, Esq. for allowing us to use his “Trial Notebook”.

[4] Scully v. Fitzgerald, 179 N.J. 114, 129 (2004) quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

[5] Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. den. 145 N.J. 374 (1996).  

[6]  Beadling v. William Bowman Associates, 355 N.J. Super 70, 87 (App. Div. 2002).

[7] Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super, 309, 323 (App. Div. 1996). 


[8] This section was written by Rita M. Aquilio, Esq.

[9] This section authored by Timothy McGoughran.

[10] Criminal Justice Volume: 8 Issue: 4 Dated: (Winter 1994) Pages: 2-6,51-54, Professor Irving Younger

[11] This section was written by Jenna Shapiro, Esq.

[12] This section was written by Thomas DeCataldo, Esq.

[13] State v. Kelly, 97 N.J. 178, 208 (1984).

[14] Heinzerling v. Goldfarb, 359 N.J. Super. 1, 13-14 (Law Div. 2002).

[15] State v. Beard, 16 N.J. 50, 59 (1954); see also State v. Sturdivant, 31 N.J. 165, 178 (1959) (recognizing the trial judge is vested with "considerable discretion" in determining whether to permit rebuttal evidence).

[16] State v. Cain, 224 N.J. 410, 426 (2016).

[17] N.J.R.E. 703.

[18] State v. Townsend, 186 N.J. 473, 494-495 (2006).

[19] Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002).


[20] State v. Clawans, 38 N.J. 162, 171 (1962).



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