Episode 61 - What You Need To Know About Testifying in Court
In most cases, you only have one chance to make a first impression. In the Courtroom, your only chance to make a first impression is also usually the only time you will have to present your evidence. Unfortunately, the movies and televisions shows give the impression that cases are won with brilliant cross examinations of the other party. In reality, however, over 80% of cases are won on what is called "Direct Examination." In other words, the person who presents the best evidence usually wins. And, for this reason, we decided to dedicate a whole episode to the day of your Court appearance. This show breaks down the 'how' of telling your side of the story.
Leh: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp radio on News Radio 1067. Here you will learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about, you can always call or visit us online at atlantadivorceteam.com.
Todd: All right, so last week we talked about 10 tips to help a witness better prepared for court and we discussed all sorts of things on the preparation, because some people just wing it, they try to wing it, not a good idea, so 10 things that you really should be doing and thinking about as you prepare yourself to act as a witness in a court proceeding, and like we promised this week we're going to go over nine tips on how to make a great witness in the court room. So last week it was preparing for court, this week you're in court, but again, preparation is key and we're going to talk about the things you need to be doing and thinking about as you are entering court, sitting in court and testifying. And even though it's one less tip, last week 10 this week 9.
Leh: I could've made up one and made it 10.
Todd: Seriously, it's just lazy. You couldn't come up with more one tip?
Leh: Why do you want people to be mad at me?
Todd: All right, so the nine tips this week are great tips. You really need to hear about these because it really is going to help anyone, whether it's a family law case, whether it's some other legal action, if you have to go into court, you have to testify, these are things you want to be thinking about because it's going to make you a better witness.
Leh: Yeah, absolutely. We're not just going to talk about what do you do on the stand, but what do you do when you're not on the stand. This is going to apply, not just in family law, we're going to give some family law examples because that' the area of law we practice in, but the tips apply whether it's a contract litigation case, it's a personal injury case, it's a criminal case, these are tips that apply across the board whenever you're testifying in a courtroom and presenting evidence before a judge or a jury.
Leh: Maybe we'll just give a quick recap, so what's going on behind the scenes because this creates ... We're trying to do this to help lessen the anxiety associated with testifying in court because we know you and I both have gotten those panicked calls from the witnesses we just subpoenaed or the clients who just got notice that the hearing's around the corner and they're anxious about what's going to happen. We kind of talked about that last time too, we went through the background that, look, don't panic, you're just there to tell the evidence. Obviously, if you're a criminal defendant, I guess you could wind up in jail.
Todd: Well, you have anxiety but it's for a much different reason. It's not a public speaking anxiety, it's I might be in the pokey for a long time anxiety.
Leh: Yeah. So we're going to exclude those but we're going to talk about if you're just a witness in a civil case or something like that-
Todd: But some of these tips are even going to help those people because, again ... Look, every area of law has its nuances and family law is no different so there are things that we want our witnesses to do, whether they're our clients or just third-party witnesses, to do things we don't want them to do. What we're going to go over is a lot of the more general tips that do apply and can even apply to the defendant, who is fighting for his or her liberty. That's fine. I mean, I'm sorry you're in that situation, but some of these tips will even be helpful to that person because what we're talking about is you're fighting for something, you are there to testify about something and it's not just what you say, it's how you say it.
Leh: Yes, definitely. We're going to to go into that exact issue later on, but I just thought of tip number 10,
Todd: No, it's too late. It's too late.
Leh: It's too late?
Todd: Don't just try and wing a tip.
Leh: Well, no, it just hit me.
Todd: Something's about to hit you. It better be a good tip.
Leh: So prepare to potentially be there all day. Now, if you're the client you will be there all day-
Todd: All right, fine, that's a good one.
Leh: But if you're not the client, if you're a witness showing up you could be there all day. Last last time we talked about that the lawyers cannot necessarily tell exactly when you're going to testify. If we're the defendant and the plaintiff goes first, and they could take twice as long as they originally said they would, and so all of a sudden if you're on the defense meaning that you're the one who's responding to litigation, then all of a sudden the timelines we gave all our witnesses are thrown out the window. So just, hey, prepare for the unexpected, make sure you have ... These are practical tips that people don't think about, but make sure you have some babysitters if you have kids at home, or kids are getting off the buss, or in daycare, people that can pick up your children in the afternoon if you're stuck at court because if you leave and the judge hasn't released you they can send the sheriff deputy out there to get you.
Todd: Let me say this, some attorneys are good about this. I got my training in a DAs office and I was working very closely with police officers and detectives and other experts and I was taught early on to be very respectful of people's time because they have other things they have to be doing, and of course third-party non-law-enforcement witnesses ... It's just sort of ingrained in who I am to try and be very mindful. But at the end of the day, we don't control the court calendar.
Todd: So there are some attorneys who are good, there are some attorneys who aren't as good about communicating about those things, so you as a witness need to communicate, need to say, hey, how long ... And here's the thing, don't just ask how long will I be testifying. Your testimony may only be 10 minutes but you may be sitting there for eight hours to give your 10 minutes. So unfortunately if you know you have to be in court, the attorney, if you ask the right questions, the attorney will be able to give you a window, an idea of basically how much time you should set aside and be prepared to spend at that engagement, whatever it is.
Leh: So make sure you've got things taken care of in case you're there longer than you expect. And this may sound weird, but I've literally had people that were hypoglycemic, and my recommendation to them was have some food in the car. Sometimes some courthouse will let you bring in like breakfast type bars or power bars, protein bars, some won't, so make sure you just bring them with you and you can ask the court if you're allowed to bring them, and you can't eat in the courtroom, but you can at least have them at the courthouse.
Todd: You really can't eat them on the stand while you're testifying? That's a no-no?
Leh: No. No, you can't do it.
Todd: If you think about it-
Leh: I'm not about to test it either.
Todd: All right, so that wasn't a bad number 10.
Leh: All right, so let's go what our original number one was. We touched on this last week but we're going to hammer it again today because it is critical, and that's no lies, no omissions, no exaggeration, all truth. Usually when you're given the oath, the oath is you're promising to tell the truth, the whole truth and nothing but the truth. So sometimes people will say, well ,I left that part out but I wasn't, and the judge said, yeah, but you didn't tell the whole truth. So that's where people get in trouble, they try to leave out certain critical facts in their testimony because they feel like it's going to hurt somebody, either hurt their friend who's in little of the case or if you're the one of the parties in the case, the concern's going toto hurt them, so leave out that critical fact but then on cross the ... Usually opposing counsel hasn't forgotten that critical fact.
Todd: Yeah. Look, if you're trying to differentiate a lie from an omission or if you're trying to categorize an omission or something else as either a lie or the truth or something in between, you're missing the boat. It all comes down to your credibility. The only thing you have when you walk into court and testify is your credibility and if you omit something that shouldn't have been omitted, if you lie about something, it's going to destroy your credibility and once your credibility is shot once it's gone, it's gone. You may have 10 other incredibly important things to talk about but at that point, the courts' ears are closed. The court's just not hearing it because at that point, the court is thinking how do I believe anything that comes out of this person's mouth?
Leh: Exactly. You also need to avoid the temptation to exaggerate. So I've seen somebody, this is just an example, and then his face was so red hot with anger, I had never seen his face so red, he could've laid out in the sun all day with baby oil on his face and not have gotten that red.
Todd: That's pretty red.
Leh: Then he took a deep breath and crouched down like he was a lion about to jump and tear her throat out. I thought she was going to die, or even worse.
Todd: Worse than death?
Leh: Yeah. I'm sorry I was stealing from those tornado videos where you see people interviewed afterwards.
Todd: By the way, that dramatic reading, I am on the edge of my seat, Leh.
Leh: I mean, I see people, they add all these adjectives to their testimony and then it starts becoming less believable.
Todd: Well, and there's a middle ground because you don't want the just-the-facts ma'am, plain vanilla right "just and then this and this and this. Thank you. That's my testimony." So you need to add a little bit of flavor, you need to add certain descriptive words to try and explain.
Leh: Don't hold back an emotion if it's a real emotion.
Todd: That's right. "He made me so angry. I mean, I was shaking. I was so angry." Or, "I was so scared I was hiding in the closet. I was shaking. I was crying." Those things are fine. When you start getting into the I-just-wrote-a-novel descriptive terms, then at some point ... If it's one thing, the court's going to look past it, if it's more than that the court's going to say, "Enough. Let's move on and get back to the facts."
Leh: Well, I will say that we have not had enough of this show yet. Don't go away. When we come right back we're going to get into three more killer tips to make you a great witness in court.
Leh: Todd, I've been told that it's better to tell the truth and ask for forgiveness than to lie on the stand.
Todd: I don't agree. No, I absolutely agree. And very quickly I'll tell you I had a case once where the opposing counsel was trying to say that my client was abusing prescription medications and my client was ready and prepared to take it to his grave that he did not and was not abusing prescription meds. The opposing counsel spent a tremendous amount of time, money and effort to prove that point, and in the end was able to, in this situation, prove that my client did in fact have a drug problem. Had he just owned up at the beginning, had he just said, "All right, fine, I have a problem. I'm dealing with it, AA, counseling," you name it, that would've been far better than what actually happened, which was months of litigation that resulted in proof that he was utilizing or using the illegal drugs. And then not only did it affect my client's custody rights that he got from the court, but he paid a tremendous amount of the opposing party's legal fees because the judge looked at him and said, "They wouldn't have had to do all of that had you just been honest." So I agree with you 100%, it would've been far better to just own up and deal with it than to do what he did.
Leh: Yeah, absolutely. Hey, everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners of the law firm at Meriwether & Tharp. You're listening to Meriwether & Tharp radio on News Radio 1067. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: What we're talking about today are tips to make you a great witness in the courtroom, and we ... Well, we started off talking about that we had nine tips and I threw a 10th one in there just to ... I actually set that all up-
Todd: You're just crazy, Leh. I'm just trying to throw a curve ball your way.
Leh: All right, so we've already about tip number one, which was just telling the truth, the whole truth and nothing but the truth, no lies, no exaggerations, no omissions all those things and how they hurt you. The next thing is something that drives judges nuts, and that's when you're asked a question just answer the question asked, because a lot of times you'll see people, you'll say, "Hey, sir, well, what time was it when your wife came to pick up the kids that night?"
Todd: "Well, my watch is a tag and I bought it ... It's funny. It's a funny story, I bought it a few years ago because I like to scuba dive and it can go down pretty deep. It's silver and it matches a lot of my outfits and the girls like it."
Leh: "So what time was it when she ... ?"
Todd: "Oh, that was your question?"
Todd: Yeah, yeah. There is an old saying that most of our listeners have probably heard, if I ask you what time it is, don't tell me how to build a clock. It is absolutely on point as on point a statement as you can get because when you're in court and you are testifying, you don't just get to take the podium and start to talk, you are being directed, and then crossed, but directed by an attorney, and when you are being directed by the attorney you need to answer the questions.
Todd: I was actually, just before we got here, I was talking to one of the other attorneys in our office who was telling me a story about how the client was on the stand and the question was asked, didn't answer it. The question was asked again, didn't answer it. The judge had to intervene and say, "You need to answer the question. Listen to what the attorney is asking." And still it wasn't done. I can tell you that the outcome was not positive because it frustrated the judge.
Leh: Yeah. I'd even say judges say, "Sir or ma'am if you don't answer the question ... It's a simple yes or no answer. You can explain your answer afterwards, but if you don't answer I'm having the bailiff arrest you put and you in jail." So I've seen them do that.
Leh: A lot of times people will do it because they're just afraid to, I guess, answer a question they feel like is going to be harmful to them, but you've got to just own it and go forward. It's like what we talked about last time, you got to be the buffalo. For those of you who may not have heard, and I'll be super fast because I know we talked about this last week, but in the plains of Colorado you have an opportunity to see cows and buffaloes, how they deal with a storm that comes over the Rocky Mountains, and cows will tend to turn from the storm and run away from the storm, but of course it catches up to them and then they're in the storm twice as long because they're running with the storm, whereas the buffaloes turn straight and head straight into the storm, and they're in the storm half the time. So when you're on that stand you just want to be the buffalo, you just want to hit that question head on. If the ask you one that yes or no did you do this, when your wife told you that you couldn't see the kids did you slap your wife? You just need say, yes, I did, and just own it.
Todd: Or plead the fifth.
Leh: Plead the fifth, yeah. That's a different show, but absolutely I agree with you. So answer the question asked.
Todd: But in that situation, you could still say, yes, I did, right after she punched me in the stomach.
Leh: Right. But that's where the direction of the attorney is going to come in because you will have already, if you did the right preparation, you would've figured out whether or not any of the things you were going to testify about might put you in harm's way, might result in any kind of a criminal prosecution against you, so you'll be prepared for that.
Leh: But going back to answer the question asked, everybody wants to have their proverbial day in court and I understand, you're there, and especially once you've fought through the butterflies in your stomach and you take the stand and you have a lot to say, but you have to trust that the attorney knows what they're doing. You have to understand that if, especially if you've been directed, "Hey, answer the questions please," that's what you need to do.
Todd: I do want to circle back around this, so understand, so your lawyer, they're to do what's called direct examination and they're supposed to ask you open ended questions because they're trying to get information from you to give to the courts so the court can make a decision, or the jury if you're in front of a jury.
Todd: Now, the other lawyer, the opposing side, they're there to do what's called cross-examine you. So they're there to give very pointed questions, and usually they're requiring yes or no answers. So some people are afraid to give a yes no answer because they don't feel like they're going to give an opportunity to explain it, but a court will give you that ... If you answer yes or no and then explain, the court's going to give you the opportunity to explain it. And if something happens where they don't give you the opportunity to explain your yes or no answer, your lawyer gets the opportunity to come back, circle back around what's called redirect you. Meaning if the lawyer hears you say something that he felt or she felt like should have had more explanation, they get to get back up there and ask you some broader questions so you can go back in and better explain yourself. If they don't circle back around and ask you those questions is because they felt like your admission didn't really affect the case. Even when I say admission, your yes or no answer. I will tell you that you steal the opposing side's thunder when you go, yes, no, yes, no, I'm not sure about that.
Leh: And then the flipside, though, is sometimes people will try to be difficult and they will go yes, no. "Well, what color was the sky?" "Yes." That wasn't the question. Or it clearly is a question that requires more than just a yes-no answer but all you're giving is yes, no, you see that a lot in depositions, sometimes people behave a little bit more in court when a judge is watching, but nonetheless it's something we deal with all the time and so you have to hit that middleground. Don't offer too much but don't offer too little.
Todd: Just answer the question asked.
Leh: Exactly. All right, the next one is look at the judge. A lot of people don't realize ... Well, they heard that eye contact makes a huge difference, so making eye contact, but they naturally want to do is they want to look at the lawyer that asked the question. It's kind of natural because right now, people can't see this on the radio but I'm looking at you as we have this conversation, but-
Todd: Look to the audience.
Leh: Look to the audience, which it's either a jury or a judge. So you receive the question and then you turn to the court to answer the question.
Todd: Because when you make eye contact what you don't realize is you are making a connection with that person and whatever it is you're communicating about, it can carry a little more weight because it's like I'm looking into your eyes, I'm seeing whether or not I trust you, whether or not I believe that what you're saying is honest, is accurate. So if you're looking everywhere, but at the judge, then you're not making that connection, and you are making eye contact with the opposing counsel, who's cross-examining you, or even with your attorney, but your attorney already believes in you and opposing counsel is trying to basically get something that goes against your interest so why do you even care about making eye contact? You get the question, and we always tell our clients then turn around and look at the judge and answer the question. That's who you're telling your story to.
Leh: Right, but a lot of people don't realize that. They don't realize that it's very powerful to turn to the court to explain certain things, especially the big broad questions, I think it's more important in direct examination. "So why is it you think that it's in the children's best interest for you to be the primary physical custodian?" We'll ask a broad question like that and that's when that's ... We just opened the door for you to explain why you're such a great dad or why you're such a great mom, and then you turn to the judge and you give your reasons why you should be the primary custodian in that example.
Todd: Well, I know you promised, and I'm saying you because I didn't promise anything, you promised we were going into three tips the segment, but I'm going to go out on a limb and say I don't think we have enough time.
Leh: No, but up in next we are going to get into the tip that we didn't get to this time and we actually are going to three tips next time, but it was your fault. You just talk too long.
Todd: That's always the case.
Leh: So stay tuned, we're going to get into three more tips you don't want to miss.
Leh: All right, we've really got to keep in check.
Todd: I'm going to try and control myself.
Leh: Okay, good, because actually that's the next tip, control your emotions. Hey everyone, I'm Leh Meriwether and with me is Todd Orson. Todd and I our partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp radio on News Radio 1067. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: We have been going into nine tips, well ten if you count the one I threw in at the beginning of the show, how to become a great witness in the courtroom. We're talking about some practical things, we're talking about some big things to keep in mind while you're on the stand that will make you a great witness, very credible and either help your case if you're the party or help whoever you're testifying as a witness for.
Leh: So the tip number four is control your emotions. So take it away, Todd.
Todd: I'm still angry. I mean, I'm trying to control my emotions over here and you keep saying I talk too much. No, absolutely, it is so easy. You have to understand when you go into court, first of all, emotions are riding high, especially in family, but any time you act as a witness and you take the stand, you are emotional, you're nervous, you are anxious, and then on top of that, you got to throw into the mix that at least one of those attorneys is sort of gunning for you.
Leh: They're going to push your buttons.
Todd: They are trying to push your buttons. And as an attorney, often times why I like mediation, I love mediation because we try and settle, and we do a lot to try and settle, if settlement fails at the very least, I walk away having a little bit of knowledge, a little more information about who that party is and it gives me a real idea of what I'm going to be able to do in terms of cross-examination at an upcoming hearing. So in other words, if somebody loses their cool at mediation because one or two things was said, I know on the stand I'm going to be able to push this button and that button and they're going to lose it and the judge is going to witness all of it. So you have to do whatever it takes, rub the ear, woo-saa, whatever you have to do beforehand, you need to stay calm-
Leh: Except drinking. Don't drink.
Todd: All right, there's a long list of things not to do.
Leh: I've had a client do that.
Todd: Drinking, yeah. I've had people drink, I've had people take different medications to calm them down, although when they're slurring words when they're trying to answer questions it's not going to go over very well, but you have to control your emotions because it is so easy to lose them and nobody can do it for you. That's something you can only control.
Leh: So when we say control your emotions, I want to make sure we're clear here, you need to control, especially when you're in cross, to not lose your temper, but that doesn't mean you become a robot. I mean, we're human, not Vulcans. It's okay to use emotion to reinforce a point, because here's the thing, I think you gave an example earlier, but if you're unemotional, if you very matter-of-factly explain a situation where someone physically attacked-
Todd: "Were you scared?" "I was very scared." "Really? How scared were you?" "Very." Well, if the judge is hearing, that judge is going to be like, "You don't sound too scared." So there's a middle ground between what you, the example you gave earlier and what I just did, you have to find that middle ground.
Leh: Right. So it's okay to release that fear, or maybe it's something about you're working on a parenting time issue and the other party just continually shows up late to the parenting time appointment, so you and the children sit in the car for 30 minutes or an hour waiting for the other show up and they didn't even notify you, it's okay to express a little bit exasperation at that. So sometimes emotion can punctuate a point but you don't want it to just take over your testimony.
Leh: A lot of ways, and I think we talked about this, if there's a hot button, going back to what you said, have your lawyer or someone in his or her office practice cross-examination with you. I'm kind of going back to last week, but just practice the hot tips so that you ... When I say hot tips I mean those things that trigger you to get emotional. Practice cross-examination before you walk into the courtroom with that.
Todd: Absolutely. Even taking a step beyond because some people think, especially if you're a party, I am testifying and my testimony will be when I walk up, sit down, say the oath and then testify and when I'm done testifying I'm done. If you're still in the courtroom you need to behave yourself. When you sit down, let's say it' your attorney, when you sit back down at the table, if every time opposing counsel says something or opposing party, or one of opposing party's witnesses says something and you disagree, and you're like ugh, pfft, ugh ... I know this is radio so people can't see my arms flying all over the place.
Leh: You're almost hitting me? They're flying everywhere.
Todd: I almost hit you twice. But the judge is watching all of that and if the judge ... Let's put it this way, if one of the arguments against you is that you're a hothead and you can't even control yourself when you know a judge is watching, what do you think the judge is going to think? That you're a hothead.
Leh: Yeah. In fact, you just hit tip number five, the judge sees everything. In fact, they are trained from the very beginning ... When someone becomes a judge, at least I know in Georgia, and I'm pretty sure it's the same way across all the jurisdictions here in United States, judges are trained to watch for things. In fact, I have literally seen someone say something very emotional on the stand, the judge wasn't looking at the witness, they were looking at my client for the reaction. It's one of those things where you don't want to be completely unemotional if you're accused of something terrible, you can just sort of shake your head like that that's not true, but you don't want to overthrow it. "Well, he's a hothead," next thing you know they're scribbling furiously in a note pad saying, "Go after him for this," or they're going, "She's lying!"
Todd: I've seen all of that, yeah.
Leh: Yeah. So you don't want to do those things. The judge is watching everything, they're watching facial responses, if someone's asked a question ... So this goes back to it's not just what you say, it's how you say it. I've seen a judge, when I finished my cross-examination and rested, this was a case where-
Todd: That's a term that means you've stopped asking questions, not you're taking a nap in the courtroom.
Leh: That's right. So it was a very good cross-examination. It's one of those ones where that's where you enjoy being a lawyer, you push every single button that you wanted to push and the guy was very emotional. He had all kinds of facial expressions when he was answering the questions and the judge said, "Sir, I've been trained to watch nonverbal responses, and the way you were answering Mr. Meriwether's questions says to me you are an angry, angry man." That's a quote. Boy, the ruling did not go favorable for him.
Todd: One angry is not good, two angry's really bad.
Leh: Yes. So that's where it's really important. So you're being watched, and it's not just the judge, it's the bailiffs outside the courtroom because ... Now, they may not supposed to have told the judge but sometimes it gets back to them-
Todd: There are sometimes hot microphones in the courtrooms so you have to be very careful. I know that because I've been back in judge's chambers, and not on the case that's in court, and I can hear what's going on in the courtroom. So if you think that it can't get back to the judge just because the judge is off the bench, you are fooling yourself.
Leh: I saw a client, an opposing party, one time lose it in the hall, this is during the course of the case, and the bailiff almost arrested him on the spot and brought him into the courtroom and asked the judge to consider a contempt of court against him as behavior in the courthouse, so you are always being watched there. So keep it in mind.
Leh: All right, now tip number six, be positive. Now, this is probably more specifically for family law than in the other ones. So the tip here really is, look, [inaudible 00:31:16], he never picks up the kids from soccer practice because you're opening the door to, well, what about this one time when he did pick the kids up from soccer practice on time, now all of a sudden you look like a liar.
Todd: You're going into court trying to say I'm, let's say, a better parent and more capable of acting as a primary parent than the other person, so let me focus on the negatives and I'm going to do that. I'm going to go in, I'm going to talk about this is a negative and that's a negative, but you have to actually figure out ... Again, there's a middle ground. If everything that comes out of your mouth is negative, and sometimes it's dessert, but if the person actually has some positive attributes, some positive behaviors that benefited the child, then you need to be willing to at least accept those because we've both seen people where they go into court, even when presented with the positive evidence, they are like, no, he, or she, is terrible and he did this and da, da, da, da. That'll bite you because then the court is angry at you and thinks this person ...
Leh: If you're talking that negatively in front of me, what are you saying at home with the kids around? That's why it's important let the judge make negative inferences about the other party. You don't necessarily have to do things.
Leh: So let's you do say something negative, "Well, he didn't pick up the kids on time," this time, this time, this time, this time. You don't have to punctuate with a wild emotion. That's just a situation where you just relay the facts and maybe just a hint of disappointment. Let the judge take it to the next level. You don't have to. Focus on the positive. When you're testifying, focus on why you think you're a great parent, but don't just hammer the other side.
Todd: Yeah. I guess the way I put it is focus on your positives and the secondary part of your testimony is the negatives of the other party.
Leh: Yeah. Up next we're going to get into the last three to make sure you're a great witness in court. You don't want to miss it.
Leh: You know what, that last tip, think positive, I wanted to add one more thing before we go onto the next tips. When we talked about one of those things is try to control your emotions, but family law particularly is very emotional, and it's easy for me to say that but it is so much harder to actually do so it's possible that during your cross-examination, or even direct examination, that you may have a moment of weakness. Maybe you lash out because you have been sitting in the courtroom listening to the other side say, at least from your perspective, has been one lie after another and so when you finally get your opportunity to get up there you just want to lash out, or at first you're positive but then you have a moment of weakness and you just lash out, it's okay to take a step back and just correct what you said. "You know what, that was uncalled for," or "You know what, I think I went overboard. I apologize to my husband," or my wife-
Todd: "And I apologize to this court."
Leh: "I apologize to this court."
Todd: I don't agree with everything that my husband testified about, but you know what I'm just going to answer questions and I'm just going to explain why I'm frustrated."
Leh: I have seen judge after judge after judge extend so much grace when someone's willing to just accept, "Hey, I had a moment of weakness. I'm sorry, judge."
Todd: Judges know it's part of what we do and judges know that one party's not going to agree with everything that the other party says. One thing I always tell my clients is, do not be surprised by anything that your spouse or the other party says. Don't be surprised if they lie, don't be surprised if they exaggerate, just don't be surprised because in what we do, unfortunately, it just comes with the territory. I'm not saying it's right, I'm saying that unfortunately exaggerations, lies, omissions, it's part of the process, and part of our job as attorneys is to figure out what is the truth and make sure that the truth is what is presented to the court.
Leh: Right. Hey, and everyone, if you're just tuning in, this is Leh Meriwether and Todd Orston, and this is on Meriwether & Tharp radio on News Radio 167. Just in case you're tuning in and you're like, what are they talking about? What we are talking about is how to be a great witness in the courtroom, and we left off with three great tips last segment and the last one was being positive in the courtroom when you're giving testimony, especially in a family law case law.
Todd: Which is hard.
Leh: It is hard, but a lot of these other tips they apply to any type of case, like a criminal case, or personal injury, or contract, any of these other things you've heard about, these tips are going to apply across the board, but let's keep going.
Todd: Absolutely. So number seven, or eight if we're counting, so listen, think and then answer. Listen to the question that is asked, think about it and then answer. Sometimes people, they just feel the need to just immediately jump in and start talking, and that's when people get themselves into trouble. This happens a lot in depositions, it happens a lot in court, people think that it will look weird if they take a moment to think. What looks really weird is when you are asked a question and you answer something completely different or when you answer and instead of saying, "Oh, you asked what time it is, okay. It is 4:22," and instead you're talking about the maker of the watch and you're talking about all these other things that have nothing to do with the actual question. I say this to my kids even, listen to what is being asked of you, if a teacher asks you a question, if a coach asks you a question, if you're in court, I'm not saying that to my kids, and a judge asks you a question, stop, think about that question and then once you've thought about it, you've in your mind formulated an answer, then respond.
Todd: By doing that, you're going to avoid a lot of trouble, a lot of problems and you're not just going to just give information that [inaudible 00:37:52] so many times you give so much and not only is it not helpful, but it's hurtful, and so you'll avoid actually hurting the case, your case, because you've given too much information that actually they can use against you.
Leh: Right and it's okay, maybe people feel feel like it's not okay, but it's actually okay to say can you rephrase the question, I'm not sure what you just asked. It's okay to ask that. I mean, that's about the only question that you actually can ask on the stand, but say, look, I didn't understand the question, can you rephrase it?
Leh: And here's the other thing, and this is one of the powerful elements of this tip, on cross-examination sometimes a lawyer will ask the same question four different ways and they do that to try to trip the person up. I've done it, but mainly because I thought I was pretty sure the other person wasn't telling the truth and I was looking for a different way to get the truth out, so they were evading to answer my question, and it usually works. But here's the thing, if you've answered that question and you're sure of your answer, no matter how forceful the other lawyer is with re-asking the question, stand your ground, but you've got to pause, listen, "No, I answered that correctly the last time." Because sometimes they'll push you because they think you may ... The forcefulness of the question causes you to question your original answer, but if you rush to it, rush to the answer, then you go, "Well, hang on a minute, maybe he's right. Maybe I got that wrong," but that's why it's important to pause, listen, think and then answer and then stand your ground. Say, "No, no. No, I'm standing my ground on that. That's my answer."
Leh: Now, a lot of times your lawyer will stand up and say, "Objection, that question's been asked and answered," if they ask it the same way over and over again.
Todd: Well, and don't think that the questions all have to come one after another, because sometimes in a cross, what I'll do, is I'll jump around a little bit and I'll ask a question over here, go into a different topic, come back and hit that same question that I asked before from a little bit different angle. I might do that two or three times, and it's amazing because, especially if we know going in that there's a lie there, it's amazing, we can usually trip someone up because they just weren't ready for that. They're so quick to the answer that they basically just start blurting something out, and next thing you know you have the truth.
Leh: This next tip is don't evade the question. It may sound somewhat duplicative of answer the question asked, and I'm trying to hammer home a point with this tip, because it's so-
Todd: This goes back to your be the moose example.
Todd: Okay, whatever.
Leh: So be the buffalo, yes. When I say what does that mean ... We have all seen it in presidential debates where a question's asked and you're like, they didn't answer that question-
Todd: If you become a politician, my guess is there's a rule book that everyone is given on their first day and it's like, no, no, no, this is how you answer questions.
Leh: Yeah, just don't ever answer the question. Well, in the courtroom you don't get away with it. The lawyer will say, "Judge, I move that that answer be stricken as nonresponsive and order the person to answer my question."
Todd: I was talking earlier about the attorney in our office that I was speaking with and she was telling me about that situation, and that's going back to what I said where the judge had to stop and several times, numerous times even, direct to the witness, our client, to answer the question. "Ma'am, listen to what the attorneys are asking you and answer the question please." By the time that hearing was over, the judge was so exasperated and so angry that it impacted the case.
Leh: So if you spend five minutes answering a question that should have been answered in 30 seconds, you're probably evading the answer.
Leh: All right, well, the last one is be respectful and be the reasonable one. Now, don't call the opposing counsel by their first name. I mean, that really annoys people. "Todd, let me tell you something." Or you get asked a question and go, "Todd, I've got a question for you." I've seen that before. I chuckle because I think that happened a couple weeks ago.
Leh: And judges appreciate an unbiased answer. If you're witness and not necessarily a party and you're testifying, and you want to be as unbiased as possible. If you're testifying for your friend in the courtroom and somebody asks you something negative about your friend, just go ahead and admit it. "Yeah, I saw Jim drink a beer at the party the other night, but I never saw him get drunk." I mean, don't be afraid to answer that. The more unbiased you are with your answer, the more credible you are in the courtroom. If you're asked about possible ways to resolve a dispute or a situation on the stand, the judge may ask you on the stand, "well, how do you think I should deal with this parenting issue that the two of you are having," don't be afraid, give a reasonable option. You know you want to be the reasonable one there in the courtroom. Don't be the hard-line, the other side needs to pay or suffer.
Leh: Now, there's situations, don't get me wrong, where you need some protection. someone's an alcoholic and drinking and driving with the kids, you got to have a hard mind there.
Todd: Right, but if the former spouse, or if the parent of your child, the other parent is late consistently to a pick up drop off and the judge looks at you and says, "Well, what do you think we should do about this," you shouldn't be saying he shouldn't have custody anymore, you should strip him of all parenting time rights. I mean, obviously, at that point that's not a reasonable solution and the judge is probably going to not look favorably on your very draconian thoughts regarding punishment and what should be don, so instead be reasonable. Just go in and respectfully-
Leh: Be respectful to the judge, be respectful to the opposing counsel, be respectful to the bailiff and anybody else in the courtroom. Hey, that about wraps up this show. Thanks so much for listening. You can read more about us and find out more information about us online at atlantadivorceteam.com.
Speaker 3: This audio program does not establish an attorney-client relationship with Meriwether & Tharp.