How to Testify in a Family Law Case
Disclaimer: The following article is for educational purposes only. It is not legal advice. Every family law case is different and the below general guidelines may or may not apply to your particular case. You should consult with competent family law legal counsel prior to providing any testimony in any case.
I. Introduction
The goal of this article is to provide general rules for providing testimony in a way that maximizes your chances of success – or the success of the person you’re testifying for – in a family law case.
II. First, some definitions:
Direct-Examination: When you are testifying on direct-examination, you are providing testimony in response to questioning from a lawyer you are aligned with. If you are a party to the case, this will be your lawyer. If you are a third-party witness, this will be the lawyer you are generally aligned with or who called you to testify.
Cross-Examination: When you are testifying on cross-examination, you are providing testimony in response to questioning from a lawyer you are not aligned with. If you are a party to the case, this will be the opposing lawyer. If you are a third-party witness, this will generally be the lawyer who did not ask you to testify.
Re-direct Examination: After cross-examination, the questioning returns to your lawyer the lawyer you are aligned with so they can ask follow-up questions or ask you to explain the answers you provided on cross-examination.
Closed questions: Most cross-examination questions will be “closed” questions. A closed question does not call for anything other than an affirmative or negative response. Examples of these types of questions include:
“Isn’t it true that you were in Houston on July 24th?”
“You are 37 years old, correct?”
“You have used marijuana in the past week, isn’t that right?”
There are only a few short answers that respond to these questions:
- Yes;
- No;
- I don’t know; or
- I don’t remember (although this should be rare, as explained below).
Open-ended questions: Most direct examination questions will be open-ended. Typically open-ended questions are not used on cross-examination, but they sometimes are. An open-ended question calls for more than an affirmative or negative response. Examples of open-ended questions would include:
“Tell me why you think that?”
“Why was that in your child’s best interest?”
“How are you compensated for your work?”
III. Why are the rules so important?
Now that we’ve gone over basic definitions, let’s talk about why it is so important that you follow the “rules” of providing good testimony.
If you are a witness in a family law case, you must provide testimony in a way that the judge or jury that:
(1) finds credible, and
(2) effectively conveys your story and message.
It is also critical that your testimony:
(3) gives the judge or jury a good impression of you as a person.
This last point (3, above) is particularly critical when child custody is involved.
If you are a party in a family law case, you will be your most important witness. There typically will not be a close second. You should read these rules and commit to them before going anywhere near the courtroom. Let’s go through each of the above to understand why they are so critically important:
Following the rules of testimony builds credibility.
Every family law case involves a dispute. You do not view history the way the other side views it. Your stories about critical events are different. When the other party describes the past, it feels like they were living on a different planet.
In family law in particular, there are often no witnesses to these events. No one sat on your couch and observed how your family operated. It is your word against the word of the other party. We have traditionally called this situation “he said, she said.”
Because of this, the judge or jury is in a very difficult position. They have to judge the credibility of the parties through their testimony. And one of the primary way they will judge credibility will be by observing how the witness testifies. How does the witness come across? Defensive? Not credible. Combative? Not credible. Unable to just answer the question? Not credible! You must come across as credible.
Following the rules of testimony allows your story to be understood.
In addition to finding you credible, it is important that the judge or jury be able to understand your testimony. In family law in particular, this can be difficult. Rambling accounts of past events confuse judges and juries.
In the courtroom, stories are conveyed in question & answer format. Done properly, this method tells a story in a very structured, disciplined way that allows the audience to both hear it and understand it. If the question & answer format breaks down because if the witness does not have the discipline to follow the rules, the story becomes rambling, confusing, and ineffective. The judge or jury becomes lost, and therefore your case is in danger of being lost.
Following the rules provides a good impression of you as a person.
The judge or jury have never met you before. Thus, their only impression of you in this lifetime will be based on what you do and how you act in trial. It is critical that you make a good impression.
Judges and juries value people who: (1) are honest; (2) are disciplined; (3) are respectful; and (4) who take the case and their role in it very seriously.
IV. And finally, the rules:
Now that you understand why the rules are so important to follow, let’s go over them.
Rule #1 – Do not lie.
In trial, the truth often hurts. But assuming you’ve told him the truth to your lawyer early on, you lawyer can handle the truth. He or she will be prepared to deal with it. What your lawyer cannot handle is the credibility and case destroying fallout from a lie.
WHY: When you lie in court you not only break the law, you put yourself in the position of losing all of your credibility. Once that happens, the other side will have a field day because the judge will believe their side of the story on every major issue. Who else can they believe? Not you! The litigation process is built to uncover untruths, and your lie will very often be uncovered.
Rule #2 – Be respectful to everyone.
Be respectful to everyone in the courtroom. This of course includes the judge and the court staff, and you will naturally be respectful to your own lawyer. But this rule especially includes opposing counsel. When you are being cross-examined, be respectful. If it feels natural enough to do so, you should even answer with “yes sir” or “yes ma’am”.
This should not change when the questioning gets hard, or even if the questioning is insulting. In fact, this rule is even more important when these types of questions are asked. Finally, under no circumstances you should ever argue with opposing counsel or ask them questions in return.
WHY: Judges and juries love respectful people. And they love respectful and disciplined people even more. And nothing shows that someone is both respectful and disciplined if they can be respectful to an obviously hostile examiner. The judge or juror consciously or unconsciously says to themselves “If she can be respectful to someone hostile, she must truly be respectful and disciplined.” All else being equal, judges and juries are more likely to make decisions favorable to those who are disciplined and respectful.
Rule #3 – Come to trial prepared.
Your lawyer needs to be prepared, but so do you. Go over the likely questions you will be asked. Ask your lawyer for a prep session so that you know what you’re going to be asked and have had time to think generally about your answers.
WHY: Given time to think about them, you may have good answers for all of the questions you will be asked. But it can often be difficult to answer them on the spot. Given how critical your testimony is to the success of your case, why would you not prepare for those questions?
Rule #4 – Before you testify, understand exactly what you’re asking for and why.
This could be a subpart of Rule #2, but it deserves to stand on its own.
Read your pleadings and understand every request you are making and why.
I can’t tell you how many opposing clients show up in court and don’t know what they’re asking for. They’ve relied too heavily on their lawyers and haven’t taken the time to understand their own case. When they are asked to state specifically what they are asking for, they can’t do it. It makes them look silly, and not credible. Worse, they sometimes admit that they didn’t even want what their lawyer has pled for. What an awkward and credibility killing situation!
So understand what you are asking for. And don’t just understand what you’re asking for at a high level, understand the details. For example, if you’re asking that your spouse have a “Standard Possession Order” with your children, understand the specifics of exactly what that is.
Finally, be prepared to state why you are asking for what you are asking for. Some examples:
Child Possession: Why are you asking for a Standard Possession Order? Be prepared to explain why that is best for your kids given their weekly schedules and your specific situation. And why are you contesting the possession order the other side is asking for? Why is your possession order good for your children, and why is theirs not? Think about the answers and be specific.
Property: Why should you stay in the marital residence? What is it about your situation where this makes more sense than your spouse staying in the marital residence? Be specific.
Don’t just the main requests (like the possession order, and residence). Understand the more minor requests as well. If you’re asking that the other side pick-up and drop-off be at your home instead of their school, be prepared to explain why that is best.
WHY: First, if your lawyer has pled for something on your behalf, you should fully understand what that is. You should not ask the court for something you don’t fully understand. Second, getting caught not knowing what you are asking for and why you are asking for it is embarrassing, and you lose credibility. Why would the judge do what you’re asking if you don’t even know why you’re asking for it? And finally, if you can’t explain why you should receive something, you are simply less likely to receive it.
Rule #4 – Answer the question asked, and only the question asked.
To follow this rule, you will need to fight human nature. Human beings naturally want to explain themselves. And unless you’ve been in trial before, you’ve probably never had a conversation where you answered only the questions you were asked. Normal conversations don’t work that way, but testimony is not a conversation.
When you are asked a question, answer only that question. Do not move beyond the question. Do not explain your answer or leap to questions that have not been asked, even when you really, really want to.
If you are asked a closed question, you should generally only respond with (i) yes, (ii) no, (iii) I don’t know, or (iv) I don’t remember*. Or, if you don’t understand the question, ask that it be restated in a different way.
If you are asked an open question, you should respond only to that question. You should also answer it directly as possible. Your answer should simply answer the question and then stop. Your lawyer will follow up with a question to allow you to explain further, if needed.
WHY: Sticking close to the question shows discipline, and you come across as more credible. Going beyond the question, attempting to explain, and otherwise failing to answer the question does not appear credible. Sticking to the question also allows your lawyer to present your case in an organized, methodical way that can be fully understood by the judge or jury. When you go beyond the question your testimony becomes rambling, and the judge or jury gets lost. The worst case scenario is that the judge or jury doesn’t understand your story or your side of the case. So – just answer the question.
*CAVEAT: *Generally speaking, “I don’t remember” should be rare, and “I don’t know” should only be used in appropriate situations. You should only use “I don’t remember” when the question might be yes, but you truly don’t remember. Otherwise, the answer should be yes, no, or I don’t know. And you should only use “I don’t know” when you truly do not know.
For example, if someone asked me “Scott, isn’t it true you’ve kicked your dog in the past year?” my answer would be “no”. It would never be “I don’t remember” because that is not something that would have ever happened. For the same reason, it would never be “I don’t know”. In fact, if I said either of those things, the judge or jury would surely believe I did in fact kick my dog. Strangely enough, however, in the heat of a courtroom battle, people will often say “I don’t remember” or “I don’t know” to things they know could have never happened. Don’t do that.
Rule #5 – Do not explain your answer until you are asked.
This could be a subpart of Rule #4, but it deserves to be its own rule.
Particularly on cross-examination, there will be times when you must answer “yes” or “no” to a question, and it’s not going to feel good. You will feel like a yes or no answer casts you in a negative light, and you will have the powerful urge to explain yourself. Don’t do it. Just answer the question. When it comes time for your lawyer to direct you, you will have the opportunity to explain yourself.
WHY: Again, going beyond the question makes you look undisciplined and not credible. Further, if you are on cross, it is a bad idea to attempt to explain yourself to an unfriendly examiner. It is far better to wait until it is your attorney’s turn for follow-up questions (see “Re-direct examination” above) and explain yourself at that time. When you have a friendly examiner, they guide you through your explanation to show how sensible it is instead of poking holes in it and attempting to make your explanation appear foolish and not credible.
Rule #6 – With open-ended questions, take the shortest route to a correct answer.
When the question is open-ended, either on direct-examination or cross-examination, take the shortest route to a correct answer, and then let the lawyer ask follow-up questions if they need more.
WHY: Testimony is best understood by the judge or jury when it is presented in question and answer format – through well organized questions, and concise, straight-forward answers. This allows your lawyer to present your case in an organized, methodical way, and prevents the judge or jury from becoming lost. Further short, straight forward answers appear far more credible than long winded answers.
Rule #7 – You are always on the witness stand.
When you are at the counsel table during argument or testimony, do not make faces. Do not scribble notes furiously. Do not show anger, disdain or disrespect. This does not project someone who is honest, disciplined, and respectful. Maintain composure and attempt to show very little emotion.
At breaks and before or after trial, do not laugh or act silly. Do not argue with your lawyer or legal team. Do not glare at the other party. These are not the actions of someone who is disciplined, respectful, or who takes their case seriously.
WHY: When you are in the courtroom (whether virtual or in-person) the judge and jury are always looking at you even when you are not on the witness stand. They are judging your actions and your mannerisms. With in-person trials, this includes anywhere inside or outside the courthouse; at breaks and before and after trial. To put it bluntly, it does you no good to look like a calm, disciplined person on the stand and once you get off the stand show everyone that it was just an act.
Rule #8 – Keep your emotions in check.
Stay composed. You should never project anger or disgust. Avoid these emotions like the plague. They will only hurt your case. Sadness is acceptable within limits. It is often natural that a witness in a family law case will show tears of sadness, but the witness should never appear hysterical or lose their composure.
WHY: You are not expected to be a robot, but at the risk of sounding like a broken record, it is important that you come across as honest, disciplined, and respectful. People who cannot control their anger and disgust do not appear disciplined or respectful, and it also hurts their credibility. People are simply more credible when they do not appear emotional.
Rule #9 – Own your mistakes.
If you have made mistakes – and everyone has – do not attempt to avoid them or justify them. Be prepared to fully admit that you’ve made a mistake, and that you are sorry about it. Be prepared to explain why it will not happen again, and if applicable, what steps you have taken to ensure it will not happen again.
WHY: If you find yourself in a family law case, you will have made mistakes. And almost all mistakes can be forgiven if they are handled correctly. People tend to forgive mistakes if the person who made the mistake owns that mistake. In other words, they admit to the mistake, they explain that you feel sorry about the mistake, and they explain why the mistake will not happen again. This last part is especially effective if they have taken genuine actions toward not making the mistake again.
Important Note: This rule may change if your mistake involves a criminal act. As with all of these rules, you will want to review this with your lawyer before testifying. Your lawyer may have special instructions for answering or not answering questions about criminal acts.
Rule #10 – Dress appropriately.
This rule should seem obvious, and it applies to any trial or hearing whether the trial or hearing is being conducted remotely or in person.
Ask your lawyer what attire is appropriate given your jurisdiction and the circumstances of your case. But generally speaking, your attire should show respect for the court and show you take your case seriously.
For men, this will at least include a button-up shirt and slacks (no jeans). For non-lawyers, a suit is generally not required, but it is not discouraged either. Do what makes sense for your situation. When in doubt, ask your lawyer.
For women, this will at least include either a nice dress that at least covers the shoulders and extends down past the knees or a nice blouse and pants. Again, a suit is generally not required, but is not discouraged either. Do what makes sense for your situation. When in doubt, ask your lawyer.
If women are going to wear makeup, they should apply it lightly. Men and women should avoid any sort of cologne or perfume and any amount of excessive jewelry. And in case I have to say it, no witness should smell like smoke or alcohol.