July 2006
Volume 2, Number 4
Table of Contents

Domestic Violence Trials Conducting the Initial Client Interview

By Richard A. DeMichele, Jr.

Introduction

Domestic Violence is a pattern of behavior in which one intimate partner uses physical violence, coercion, threats, intimidation, isolation and emotional, sexual or economic abuse to control the other partner in the relationship. According to the American Bar Association Commission on Domestic Violence, nearly one in three women in the United States will be a victim of domestic violence in her lifetime.   This results in between three and ten million children being exposed to the ill effects of domestic violence every year.  Unfortunately, domestic violence is known as the silent epidemic and far too many cases go unreported.   Hopefully, with education and training, the legal profession will take strides to be an improved resource for victims. 

The Initial Client Interview – the birthplace of your “discovery”

Whether you represent the victim or the defendant the initial client interview is the single most import part of your case preparation.  In most states Domestic Violence trials are “summary actions” and the parties are not entitled to discovery as of right.  This does not mean that the well prepared attorney will go to trial with out evidence!  Lawyers are conditioned to get trial evidence though discovery.  They are trained to take depositions, propound interrogatories, serve requests to produce, and serve requests to admit.  None of these techniques are available in most domestic violence cases. “No discovery” means the lawyer will need to obtain evidence “informally”.  The client is the single best source of information and evidence about the case.  Even if the client does not have the needed evidence they usually can help their attorney learn where to look.

Some things to consider when interviewing the client (victim or defendant) for the first time:

  1. Explain confidentially.
    1. Lawyer – client privilege.
    2. Need for the client to be open and honest.
    3. Embarrassing information not shared with anyone.
  2. Client’s mental and emotional state.
    1. Determine client’s ability to effectively communicate.
    2. Mental health issues.
    3. Post traumatic stress disorder.
    4. Be patient.
  3. Define the relationship between your client and the other party.
    1. Household member.
    2. Child in common.
    3. Expectant child in common.
    4. Dating relationship (heterosexual or same sex).
    5. Married
    6. Formerly married
    7. Family like setting
  4. Determine where the incident occurred.
    1. Public place
    2. Private residence
    3. The parties home
  5. Phone/ e-mail Records
    1. Was a telephone used? With what frequency?
    2. Are there any saved voice mails?
    3. Was email used?  With what frequency?
    4. Subpoena phone records.
    5. Gather copies of e-mails.
    6. What do the e-mails say?
  6. Determine who was a witness.
    1. Neighbors
    2. Patrons
    3. Children
    4. Police
    5. Medical personnel
  7. Did the police respond?
    1. Which township?
    2. Is a report available?
    3. How many officers responded?
    4. Did the police request an ambulance?
  8. Does the defendant have Weapons?
    1. Was a weapon involved in the incident?
  9. Did the police seize the defendant’s weapons?
    1. did a different township police seize the weapons (defendant lives in a different town from the victim)
    2. Do you have a police report for the weapons seizure?
  10. Did the victim require medical treatment?
    1. Medical records. Including diagnostic tests.
    2. Photographs of injuries.
  11. Was any personal property destroyed?  Can it be presented as evidence?
    1. Furniture (broken chair, dishes, electronics, etc.)
    2. Fixtures (i.e. hole in the wall, broken window, broken lock etc)
    3. Torn or damaged clothing
    4. Injured pets
    5. Repairs made

The above items are just a list of items to consider in addition to the specifics for prohibited conduct as defined by your states domestic violence statute.  As your client conveys to you what happened be mindful of obtaining supportive evidence to corroborate his or her testimony.  In many domestic violence cases the only evidence is the testimony of the parties and the case is decided solely on credibility. Having even a small amount of corroborating evidence can mean the difference between your client prevailing or not.

Richard A. DeMichele, Jr.
DeMichele & DeMichele, P.C.
800 N. Kings Highway
Cherry Hill, NJ 08034
(856) 755-3660

 

 

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