The doors to Immigration Courts across the country are equipped with peepholes. The peephole has obvious security and administrative purposes. You don’t want to walk into the middle of a heated legal discussion or an out and out physical fight. It also allows staff and colleagues check and see if you’re at a point in a hearing when you can be interrupted with a message or a question. Most judges also check before they go into a hearing to see if the parties are still talking (hopefully working out some stipulations). But when the judge peeks into the court the first thing, they are looking at is what – and more importantly who – they’re going to have to deal with that day. One judge told me that some days he/she would just turn around and call in sick if a glance through the peephole revealed certain undesirable combinations of private and DHS attorneys in the court that day! While most judges don’t have this reaction, there are some types of attorneys that make most judges cringe before they walk into the courtroom. These attorneys are well-known to all the judges in the jurisdiction. How can you avoid being one of these attorneys?
PREPARE YOUR CLIENT!
Some people are great “seat of the pants” lawyers. They know how to ask non-leading questions to drill down and get the details of a story. Others have to write things out and practice. But very, very, very few people are good “seat of the pants” witnesses. Some answer too little, some too much. Many people who are gregarious and engaging in real life become shy and intimidated – staring at the ground, mumbling answers – the second they take the witness stand. Everyone needs practice to be a good witness. An immigration judge can tell when a witness is hearing the questions for the first time on the stand, no matter how good the attorney is. And when this is routinely the case, the attorney gets a bad reputation with judges.
Some of the problem is how to prepare. The biggest complaint that my colleagues and I have is the lack of preparation to deal with inconsistencies. It is rare to have a case without some kind of inconsistency – between statements made at the border and in the application, between the application itself and supporting witness statements or documents, etc. It is always best to deal with these on direct (and thereby diffuse any cross examination on these points). The worst thing you can do is have your witness get “supporting” statements or documents, and then decide to “hide the ball,” in order to avoid inconsistencies, by not submitting them as exhibits to the court. Any decent DHS attorney will ask the witness why they don’t have a supporting statement from other witnesses to the event, or a hospital document, etc. Your witness is now in the position of stating that they do have these documents and that gave them to their lawyer. The judge is now in the position of either having to find that your witness is lying or that you are hiding something from the court. The bottom line is neither of these is good for any individual case, but if you have a series of cases before the court where your witnesses state this, it can be disastrous for your reputation.
Many witnesses also give a good practiced direct but fall apart on cross examination. The damage done to their credibility may be unrepairable. A witness has to be ready to deal with the usual cross examination by DHS. For example, in almost every asylum case the DHS is going to ask about relocation: “Isn’t it true that you can live in (insert place or city) safely?” Based on where your witness has and hasn’t lived, you need to have them ready to answer this question. The best way to diffuse some of these questions can also be to ask them on direct. When the record reflects that relatives of the witness had no problems living in a different location in the country or after the witness left, a DHS attorney worth his/her salary will ask why the witness cannot be safe living with them.
If you know this question is coming, ask it yourself!
One way to learn how to prepare is to note the questions that the judge or DHS asks when you are finished with your direct. If you’ve done a perfect job, and you have a good DHS attorney, there will be no cross. Until you get to this point, listen to the questions on cross and from the judge and use them to prepare your next client.
If you are reading this blog, you are probably NOT one of the attorneys who needs to be convinced of the need to prepare. I hope this has reinforced your efforts and given you some new ideas for how to approach client preparation. Prepare, prepare, prepare! It’s the easiest way to make your immigration judge smile instead of cringe when they look through the peephole!
