When a family law case goes to Court—for a motion hearing, temporary order hearing or final orders hearing, Clients 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.
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 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.