When a family law case goes to Court—for a motion hearing, temporary order hearing or final orders hearing, Client have many questions and are often anxious about the experience. It is imperative that the Client has at least spoken at length with the attorney—if not able to meet in person--to prepare for their appearance in Court.
This article briefly touches upon a few of the many considerations when preparing for and delivering courtroom testimony—and how a Court’s interpretation of the issue affects its decisions. It is not meant as an instructive treatise by any means, but as an introduction to an issue not regularly encountered by non-attorneys. The information contained, here, does not constitute a legal opinion nor is it legal advice.
Is the Message Lost in Delivery?
The most important factor for a Client to understand when preparing to testify in Court is that the time for testimony is limited. Judges have actual stop-watch clocks they keep on the bench and will hold attorneys and Clients to the time limits they announce. When the attorney is out of time, they must stop talking and sit down.
This means that anything not previously stated in testimony will never be heard—no matter how important. To control for this problem, the attorney must get the Client to focus only on the issues the Court wants and needs to hear in order to make a decision. A significant problem Clients have when testifying in Court is that their message is “lost in delivery”. This means the way it was said—what was included/what was not included/and how it was said—came out wrong.
Often the Client provides too much background information during testimony and includes too many ancillary issues. Eventually it becomes hard to even decipher what the Client meant to say. Clients are, of course, anxious about testifying and tend to dwell on issues they think are important for the Court to know. I tell Clients that when they are testifying, they will be under stress and the one thing I know about humans is that if you put them under stress, their true nature will emerge.
Often a Client believes that the emotional issues are important. A Client wants the Court to know that their pain is due to their spouse being so manipulative or a lying or cheating spouse for which the Client seeks “justice”. These are, indeed, important issues for the Client and have likely rocked the foundation of their lives.
However, the emotional issues are rarely what the Court needs to make a decision during a hearing. The Court’s focus is pretty narrow on most issues and includes specific information the Court needs such as: incomes of the parties; and who will pay which bills; and who will drive which car; and how will the house be divided; and what is the parenting time plan being proposed.
If that information is not communicated clearly to the Court during a Client’s testimony, the Court will misunderstand the information or lose interest (the judge may even turn away and start working on their computer) or lose focus—and the Client will lose what they are trying to gain on that issue.
Working together, the divorce attorney and Client must determine the important issues to be addressed for each appearance before the Court. Preparation regarding the specific issues and how to present those issues within the limited time given, is the best use of a Client’s time and money and provides a better chance for success.
Knowing “How” to Say Something
It is often confusing and aggravating to a Client that the attorney cannot tell the Client what to say when testifying in Court. Ethical rules prevent the attorney from giving the “answers” to a Client. The attorney can, however, explain “how” to say something. Ideally, by having a Client understand “how” to deliver their message, the answers will be clearly conveyed and cast in that light.
For example, if the attorney and Client have created a strategy to show the Court that the Client is a “kinder, gentler, more involved” parent than the opposition is portraying them to be, all of the Client’s answers must be delivered as “kinder and gentler and more involved”. So, if the Client is asked to describe their parenting time with their child, they should not only describe the fun activities on weekends (“we go to the zoo and to the park and play on the swings and go to Discovery Zone and the museum, etc.”).
The Client would want to talk about the quiet times of reading before bed, dinner table discussions that can be profound, affection/hugs/how the child behaves when they get up in the morning, making breakfast for the child, good nutrition concerns, homework time, schedules for bed, taking the child to doctor appointments, etc.
When it comes to matters of child custody and support, this “kinder, gentler, more involved” answer would show the Court the true involvement of the Client, countering the negative image presented by the opposing party. There is no subterfuge, no trickery, just earnest answers cast in the light that conveys the true meaning of the answer.
Very important to having the Court understand what a Client is saying, is to be certain the Client understands that while testifying the Client cannot show anger. Anger will derail testimony faster than any other emotion. A raised voice, animated movements, body language of arms crossed over the chest or clenched fists, rolling eyes, profanity, all signal a Client who is escalating out of control—a clear danger sign to a family court Judge. The Judge will shut the Client down immediately, or sometimes—even worse--allow them to show their anger so the Judge can rule against them due to the anger.
While everyone realizes that being angry over a failed marriage or a custody battle is natural, showing that anger signals to the Court that domestic violence or child abuse is likely. If anger is an allegation made by the opposing party, the angry testimony of the Client has just proven the opposition’s case for them.
Clients must know and understand that while every other emotion—from crying or happy or smiling or sobbing or despair or surprise—can be genuinely elicited, if anger shows up, the battle is probably lost. The Client’s best chances for success are to stay calm and earnest and deliver heartfelt genuine answers that reflect the message the Client is trying to convey to the Court.
If you would like some of Jeanne M. Wilson's professional legal advice, simply call her local family law firm. She is here to help you!