A recent Courtroom experience where I was observing another attorney, has driven home the point that “how” a parent presents their testimony is sometimes just as important as the substance of that testimony. In the case I observed, it was obvious that the mother had been counseled by the attorney on how to present certain negative facts—so that the Court would hear her message. Her testimony was somewhat counter-intuitive in that it was not harsh and demeaning and designed to embarrass and shut down the father of her children because of an addiction.
Instead, it was quiet, kind, well thought out (to a conclusion for a safe parenting plan) and provided a pathway for even more parenting time for the father—once he got his addiction under control. The mother ended up getting what she asked for—supervised parenting time with therapy, drug testing and benchmarks to increase father’s parenting time. So, what was going on here and why did the mother succeed where many other parents’ testimonies fail?
There are few times in life that will create as much stress as testifying in Court. The fear of public speaking with the knowledge that so much is at stake, can be nearly paralyzing. Knowing what to expect and being prepared for the process can help even the most anxious litigants survive the ordeal.
Before any Court appearance, advice from the attorney should primarily focus on the specific facts that are to be introduced through testimony; but that is not where the advice should end. The advice is even more helpful when the attorney includes the “how” of what is said in Court. By this, I mean, how will that parent deliver this specific message to the Court and get what they are requesting? The message is often what the parent wants the Court to understand beyond the actual words which are often limited in time or selection.
The “how” is from the tone of voice, choice of words and approach to the issue: whether it is an attack message showing how despicable and irresponsible the other parent’s behavior has been, a compassionate message indicating sorrow and empathy that the other parent is suffering from addiction, an inclusive, message showing how the parent would take control of the problem and reunite father and the children in a safe manner, etc. Attorneys know that the biggest obstacle to targeted testimony in Court is that the message is lost in delivery.
The Client wants the Court to understand their point, but the way the Client is saying something is conveying a different message. The attorney has tailored the questions to drive the testimony in a certain direction to convey a specific legal point. However, the way the Client testifies causes the Court to reach a different conclusion.
Before any testimony in Court, the Client and the family law attorney should discuss not only the facts of the case but, “how” these facts should be presented. This is all part of the “strategy” the Client and attorney develop to get that Client to their goals. For example, if an opposing party has a substance abuse problem and one parent wants only supervised visits for the safety of the children, that parent may believe that overwhelming the Court with negative tales of the substance abuser’s behavior (relating the detailed history of the horrible, ridiculous and lousy behavior of the other parent) is the best way to convey very real concerns.
Courts, though, can be more neutral and very often want to hear from a divorcing couple who are not airing an angry diatribe from atop a high horse. Courts want to know that the concerns of a parent are credible, focused on the best interests of the children, grounded in fact, and not just lashing out in anger at someone who has failed as a spouse and parent. Sometimes the best strategy is to portray the substance abuser as “not healthy right now because of drugs” or “facing some serious challenges with alcohol”; but the testifying parent would add that if the other parent was healthy, they could be a good parent.
If this is the strategy, the attorney might explain that testifying in a quiet, slower, softer voice may more likely convey the negative facts with compassion—and compassion is something the Courts like to hear. The focus of this testimony would need to be how sad the testifying parent is that substance abuse has affected the children by depriving them of a safe, involved parent—not how it has affected the testifying parent personally.
If you are a parent going through a divorce or custody case, your attorney should be your guide through the ordeal of testifying. At The Law Office of Jeanne M. Wilson & Associates, PC, we strive to include our Clients in the preparation and presentation of their message to the Court. Having our Client know the relevant and significant facts of their case and “how” to present those facts, is not only how we succeed in Court but is part of how we get our Clients to their goals.
