What not to do at trial

Because state law, judges, facts and arguments vary so widely, perhaps it is best to tell you what not to do instead of giving detailed instructions of what to do. Therefore, to follow is a brief statement of what not to do.

Be stoic, not animated, when you are not on the stand. Judges are not impressed when you shake your head or act like you want to jump out of your skin when a witness is testifying. Judge don’t like to see you argue with opposing counsel through your gestures and body language. I remember that I had all but won David’s case. I had demonstrated his wife to be mentally unstable and a chronic liar. My cross examination of her was flawless. Our witnesses had knocked it out of the park; I had prepared them well. David did a good job on the stand, as he followed my instructions to the tee. But I did not realize it was necessary to tell David not to act like an idiot during his wife’s presentation of her case. Instead, David was visibly agitated and even animated when his wife and her witnesses told their stories. Ultimately, instead of giving David custody, the court split custody. The judge stated that because of David’s conduct during the course of trial, he felt that David was as unstable as David claimed his wife to be. The judge said, “I don’t believe that either of you deserve custody…so all I can do is give custody to you both…I’m going to split custody.”

Don’t let the other attorney put words in your mouth. Attorneys love to say, “Just answer the question ‘yes’ or ‘no’.” A question generally has no “yes/no” answer and most often requires an explanation. Don’t be afraid to say, “I cannot adequately and truthfully answer that question without an explanation.”

If an attorney says to you, “So what you are saying is…” Don’t fall for that trap. Simply reply, “My prior testimony speaks for itself, and I stand by it.” You may even want to add, “Respectfully, I believe that you are putting words in my mouth and misstating my prior testimony.”

Don’t speculate. If an attorney asks you, “About how many or how much…” Feel free to respond with, “Respectfully, I don’t feel comfortable speculating because I can’t say exactly.” If the attorney persists in pushing you to speculate, simply state, “Because I am under oath, I cannot speculate because I simply don’t know [or can’t remember].”

Do not appear angry or bitter. In a family law context, judges are not impressed with how bad you believe the other side to be. Let your attorney level the personal attacks. As much as possible, you should simply stick to the facts without personal attacks and commentary.

If you can simply master these simple rules, you are more than halfway to having a successful trial.

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