Behavior in Court
Personal injury lawyers representing plaintiffs in tort cases, such as car accident cases, and defense lawyers are familiar with the Reptile Theory. Essentially, the Reptile Theory suggests that certain parts of the human mind---the jury's mind---are "reptilian" in nature in that it controls instinctive behaviors related to fear and anxiety, which the plaintiffs' lawyers can manipulate to achieve the substantial jury verdict. See generally Reptile: The 2009 Manual of the Plaintiff's Revolution, David Ball and Don Keenan; see also Shadow Tort Law: Lessons from the Reptile, Kenneth S. Abraham, Columbia Law Review.
Therefore, in practice, personal injury plaintiffs' lawyers may employ the Reptile by making the jury feel that the defendants' negligence could jeopardize the jury's---and the general community's---safety and that the jury should punish the defendants by returning large verdicts. Simply put, this strategy appeals to the emotions of the jury rather than logic and reason. Does the Reptile Theory play a role in divorce litigation as well?
Family Law Judges Are Human Beings, Too
While certain
issues in divorce cases can be resolved through a jury trial, divorce trials
are generally heard by the presiding judge (i.e., bench trial). Judges preside
over many divorce cases---each with unique facts. They are familiar with both substantive
family law and rules of evidence. Nonetheless, judges are human beings, too,
which means that their decision-making process may be influenced by factors
peripheral to substantive evidence presented at trials. For example, a party's
behavior in court during a final trial may influence the judge's
decision-making process because that party's behavior may affect the judge's
assessment of that party's credibility as a witness.
How Should a Party Behave in Court?
A
party---whether the plaintiff or the defendant---should understand that the
presiding judge generally does not know the parties outside of the litigation.
Therefore, it is important for both parties to leave a good, first impression
on the judge.
Be Truthful
Lying in court
will be frowned upon by the judge. Even lying about a minor fact may have
significant consequences. That is, the judge may think, "If he is lying about
such a minor fact, what else would he lie about during his testimony at the
final trial?" In other words, if a party gets caught lying once, then the judge
may not believe whatever that party has to say in court. Also, giving dishonest
testimony may be perjury, which may be a crime.
Further,
lawyers cannot present evidence, including a party's testimony, that they know
to be false. If a client insists on presentation of false evidence through his
or her lawyer, then that lawyer may need to withdraw from representing that
client.
Simply put,
there is nothing good that will result from lying in court. Therefore, both
parties should be truthful throughout the divorce litigation.
Be Polite to Everyone, Including Your Spouse
Divorce
litigation, especially those involving contested child custody, may be nasty.
Nonetheless, both parties are expected to treat each other fairly and politely.
The last thing the presiding judge wants to see is emotional parents pointing
fingers at each other about co-parenting issues at the final trial. Therefore,
it would be wise for a party to be the bigger person. In other words, even if
the other party shows aggressive behavior, the proper way to handle such
aggression is to deescalate the situation.
Behaving
properly---both in and out of court---is especially important in divorce cases
where custody of minor children is contested. This is because the judge will
consider the best interests of the children when making rulings on custody of
the minor children. For example, the following are some of the factors the
judge will consider under the best-interest-of-the-children standard, all of
which may involve a party's behavior:
(1) The capacity and disposition of each
parent to give the children love, affection, and guidance and to continue the
education and rearing of the children;
(2) The home environment of each parent
considering the promotion of nurturance and safety of the children rather than
superficial or material factors;
(3) Each parent's past performance and
relative abilities for future performance of parenting responsibilities;
(4) The willingness and ability of each of
the parents to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent, consistent with the best
interest of the child; and
(5) Any recommendation by a court appointed
custody evaluator or guardian ad litem.
A
party's ability to co-parent with the other parent is an important factor that
the judge will consider in ruling on custody issues. For example, if a wife,
when being cross-examined by the other party's lawyer, continuously argues with
the other party's lawyer and refuses to answer the questions from the other
party's lawyer, then the presiding judge may infer from such behavior that the
wife may be the cause of the parties' co-parenting issues. Another example of
poor behavior in court includes a husband rolling his eyes when the other party
is testifying in court.
From the
presiding judge's vantage point, the judge may be able to see many things
occurring in his or her courtroom, including the parties' behavior. Poor
behavior will have no benefit at all. Therefore, it would be wise for each
party to do his or her best to leave a good impression on the judge.