In my experience as a family lawyer in Madison and the surrounding counties, I notice that perhaps my clients’ greatest worry is testifying in court. This does not surprise me. The depiction of courtroom dramas like “A Few Good Men” or “Law and Order” routinely show lawyers screaming at witnesses, forcing them to break down under stress, often in tears. While this makes for great TV, I have never seen this type of behavior in court. In my experience, almost all lawyers are respectful of witnesses, and judges are careful to protect them from overbearing attorneys. Rarely does an attorney or witness raise her voice, much less scream wildly. In general, lawyers and judges speak fairly quietly and refrain from personal attacks. Maybe not great TV, but a far better experience.
This does not mean that testifying is a pleasant experience. It is not. Having your intentions and credibility questioned in front of virtual strangers is not pleasant. This is certainly true in family cases, where the testimony may involve some serious, hurtful, and perhaps embarrassing personal matters. You may forget something important, or misspeak. But your lawyer will usually have a chance to “fix” any mistakes by asking you to clarify your answers during his redirect exam. Testimony need not be, and never is, perfect. There are two sides to every story, and your spouse will also testify and give her point of view. That view will often contradict yours. Your job as a witness is simply to get your point across as clearly and truthfully as possible. No one expects poetry. However, your testimony is an important part of your case, so it should be made as effective as possible through preparation.
A good attorney will sit down with you before a hearing and discuss your testimony. That includes not only the questions your attorney will ask you, but also anticipate the questions that your spouse’s attorney will ask you on cross examination. By anticipating the cross examination, you should not be surprised by any questions, and you will be able to answer confidently. This does not mean that your lawyer will give you the answers in advance. The testimony will be yours. It also does not completely prevent mistakes or omissions. But preparation will limit them and make you a more confident witness. In turn, your confidence will help your credibility.
Particularly in family law, a witness’ credibility plays a key role. Because the matters are personal to the family, the spouses are often the only witnesses. Who spent money and why, who cared for children, etc. are discussions that occurred only between spouses. The judge was not sitting in the room with them when they decided when and why a certain decision would be made. So many times, the judge is forced to rely on the witnesses’ credibility to make a decision. Preparation and clarity in testimony can be very important in helping the judge understand your position, and hopefully adopt it. Clear testimony does not guarantee a winning result, but it certainly does not hurt.
Obviously, I am usually the person doing the questioning. But I have also been a witness, and had a chance to experience the court from the witness box, not counsel table. It is somewhat uncomfortable. I felt like I needed to be extra careful not to misspeak. I felt like everything I said was under a microscope (which it was). But, I had prepared for the questions and was able to answer clearly and truthfully. I keep that in mind when working with my clients. I do all I can to lessen their anxiety through preparation and understanding. After almost every hearing, I find that I am able to congratulate even the most nervous client on a job well done.
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