Over the course of the last few weeks, my blog writing has been put on
hold due to a whirlwind tour of hearing-after-hearing in various family
law cases throughout the Denver metropolitan area. After this unprecedented
string of trials, I had a chance to step back and assess all that I had
seen. This run of courtroom battles included custody and divorce cases,
both routine and emergency in nature. Having had a chance to look back
and ponder, I determined one thing:
there are attorneys out there seemingly taking little or no time to discuss
simple, basic rules for testifying with their clients. Over my years as a divorce lawyer in Denver, I have never seen such a
string of parties and witnesses wholly unprepared to testify. I cannot
complain, as things worked out quite well for each of my clients.
When a custody or divorce case is contented, meaning issues are being fought
over, the end result may very well be a final hearing. At this hearing,
both parties will generally be required to get up onto the stand to testify,
much as you might see in a movie or on TV. In the practice of law, each
word an attorney speaks or writes may have significance to the outcome
of a case. Likewise, each word a party utters on the stand, coupled with
his or her demeanor and presence, can have an impact on how the judge
or magistrate rules. Judges listen intently to party testimony, focusing
not only on content, but body language, temperment, and the credibility
of the statements put forth.
As Denver family law attorneys, it is important to prepare clients for
hearing. This posting is not intended to discuss issues of content of
testimony to a great degree. At the same time, content is important. Below
are some of things parties need to know prior to taking the stand:
1. In any hearing, you will generally be subject to direct examination,
cross examination, re-direct examination, and potentially re-cross. With
direct examination, your attorney will generally ask you questions designed
to elicit a substantive, non yes-or-no response. As such, your attorney
should try to provide you a list of questions you will be asked ahead
of time. This way, you can work on your answers or ask the attorney ahead
of time regarding what he or she is looking for in terms of a response.
You do not want to be on the stand guessing what your attorney may need
you to say or what may be relevant to the judge’s ultimate decison.
On cross examination, the other attorney will get to ask you yes-or-no
questions designed to either refute that which you testified to when asked
by your attorney or to elicit other information helpful to their case.
With re-direct, your attorney will then get to ask you other questions
based upon the cross examination, for either rehabilitating that which
you have stated, or clarifying answers you stated on cross examination.
Recross, if allowed, will be the same as cross. It is important for parties
to know the procedural flow of testimony and to know that both attorneys
will generally get two bites at the apple.
2. Understand that with your testimony you are essentially telling a story.
You should keep focused on that story, with the knowledge that your attorney
is there to help you tell it within the confines of the rules of evidence
and courtroom procedure. You should be aware of the specific facts or
points your attorney is trying to get out of you to tell your story and
make your side of the case. Discuss what your attorney is looking for
prior to hearing, including the broad subjects of importance to your case.
When testyfing as to child support, Denver area judges want to hear the
relevant factors relating to the issue, not side issues which have no
bearing on the subject. Let your attorney guide you as to each topic.
This will help you stay focused and on task.
3. Do not be smart with your attorney and play stupid with the other.
I have seen way too many instances througout my years in which the other
side plays dumb when I ask questions, let’s say related to income
or property, yet magically becomes the most talkative, intelligent witness
in the world when his or her attorney is asking the questions. Most seasoned
family law judges can see right through this and will find that witness
to be evasive and incredible. Your testimony and responsiveness should
be the same, regardiless of which attorney is asking you questions. Just
the other day, I asked the other party, while on the stand, why his responsiveness
and ability to answer questions readily seemed to change between me and
his attorney? Despite his attorney’s objection, the judge required
the witness to answer my specific question. In the end, the other party
suddently becoming deaf, dumb, and mute when asked questions by me played
a significant part in the judge’s favorable ruling for my client.
4. Listen, listen, listen! Whether your attorney or the other side is questioning
you, make sure you are listening to the question. All too often, I see
people not really listening to what I am asking blurt out nonsensicle,
and sometimes damaging answers. Take the time to listen, then respond
in an intellient fashion. Keep your pace the same. Don’t ramble.
If you don’t understand a question, it is acceptable to ask that
the question be repeated or to say you don’t understand. Some questions
are asked poorly or are complex, thereby needing clarification. Don’t
ask for clarification to much. Unless the questions are just so horribly
phrased, you will risk appearing evasive if asking for too many repeats.
Whether dealing with a Colorado visitation (parenting time) case or trying
to seek alimony at your final divorce hearing, there is always a chance
you may have to get on the stand to testify. Do it smartly. More tips
are coming in my next posting, as a continuation of this article.