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.