TRIAL TIPS FOR CLIENTS
Preparation is the key to successfully presenting accurate information in court.
WHAT TO WEAR?
We advise our clients to dress conservatively. Court is a somber, conservative and non-colorful environment, so the dress should be consistent with that. Solid navy blue outfits are almost always appropriate. Men should avoid broad pin stripes or expensive fabrics. Alligator or other expensive shoes and cuff links should be avoided. Women may wear dresses, skirts or slacks. Coats for women look good in court. Blouses should be plain with no designs or “frills.” Women should not wear clothing that is tight or too colorful. Red, zebra, leopard, or leather should be avoided at all costs.
WHAT HAPPENS WHEN YOU GET THERE?
It is typical that the time shortly before the court is somewhat hectic and disorganized. This is normal. Do not be alarmed by it. There may be several cases or “motions” which are also set for that day, so other lawyers, parties and witnesses may be there at the same time, milling about. Your attorney may be involved in conversations with court personnel or with lining up witnesses.
Typically, the Judge asks to see the lawyers for each party in the Judge’s office. The purpose is to find out about the case, what issues are to be decided and how the trial is to be managed. The court may also explore a settlement. As a matter of fact, it is quite common that extensive settlement negotiations are conducted on the day of trial with the assistance of the Court. Many times, cases are settled on the day of trial, and no testimony is ever presented.
When the judge hears from the lawyers about what facts may be presented at trial, he gives the lawyers guidance as to how he might rule. The lawyers use this guidance to formulate appropriate settlement positions for their clients. You should understand, however, that the court is rarely actually deciding an issue or “prejudging” the case. And, settlement on the day of trial is just that, settlement. You always have the option of deciding not to settle any issue on the day of trial. If you feel any pressure to settle, please advise your lawyer.
CONDUCT AT TRIAL:
You should conduct yourself in court with decorum. You should not be boisterous or engaged in joke-telling or laughing. You should not curse, either on the stand or in and around the courthouse. You should be in complete control of your demeanor and your emotions. Do not react to the other party or to any testimony you hear or rulings made by the court. The Court will be watching how you conduct yourself. Avoid expressions, shaking your head, glaring, and scoffing, and wincing, wiggling, or sound making.
If you need to communicate with your lawyer, write a note on a piece of paper and pass it to him or her. Communication is important, but take care to make the communication discreet and not so frequent that is becomes distracting to the lawyer. Completely avoid chewing gum, hard candy or chewing tobacco or snuff in the courthouse.
ORDER OF PROOF:
The plaintiff presents his or her proof and witnesses first, then the defendant. The plaintiff may then conclude with what is known as “rebuttal.” The plaintiff gets the last word. If you are a defendant, do not worry too much about this advantage. The Court is aware that you do not have this opportunity. You may be called to the stand as a part of the other party’s case. This is called being called “as an adverse witness.” For example, a plaintiff might call the defendant as the very first witness in the case. If this happens to you, do not be alarmed by it. The key is that you are now aware beforehand that it could happen.
ORDER OF QUESTIONING:
When a party puts a witness on the stand that witness is subjected to what is known as “direct examination.” During this portion of the examination, the attorney must ask questions in a way that does not suggest the answer. When the direct examination is complete, the other attorney has the right to ask questions during the phase known as “cross examination.” Cross examination can be somewhat difficult. The cross examiner has a wide latitude in the subject and manner of questioning. An effective cross-examiner will use “leading questions,” that is, questions that suggest the answer. “Isn’t it true that….” When cross is finished, the other lawyer has the right to more questions in what is known as “redirect.” On occasion, the Judge will ask questions. Do not be alarmed if this happens.
When being asked a question, look at the person asking the question. When answering, look at the Judge. The Judge is the one you are communicating to, not the attorney asking the questions. When opposing counsel is questioning you, look at him or her, but do not become transfixed. Again, remember, your purpose is to communicate with the Judge, not to impress or beat or outsmart the opposing counsel. Take your time. There is no hurry. This is not a test and you are not being graded for the speed of your answers. If you do not understand a question, say so. Make sure you understand exactly what is being asked. If you do not recall something, state that you do not recall.
Opposing counsel may try to get you to speculate or guess. Do not fall into that trap, but you must also avoid being difficult as a witness. When answering questions, try to answer the question, first by saying yes or no, if that is what is called for. After answering, begin explaining or qualifying your answer. A witness who refuses to answer questions directly appears to be avoiding the truth.
If you are asked if you have talked to anyone about your testimony or your case, answer, “of course, I have talked with my attorney.” Then answer whom else you have talked to. Many people fear this question and the answer. Don’t. There is nothing wrong with talking to people about your case, and it is appropriate, of course, to prepare for trial with your attorney.
When answering, do not say “uh huh,” or simply nod your head. You must say, yes or no. The reason is that the court reporter must record your testimony.
Do not talk too fast. This makes it difficult for the reporter to transcribe your testimony. Don’t talk too slow, as that may appear unnatural. Do not talk when someone else is speaking. Wait for the questioner to finish his or her question.
Do not argue. Do not ask questions. If you have a question, say, “I don’t understand,” and explain why.
Under no circumstances should you lose your temper. If you have emotion about something, it is appropriate to display it, but never attempt to show emotion because you think it will help. Try to avoid too much crying. Judges can be turned off by too much emotion or crying and some Judges have been known to direct witnesses to stop crying.
When there is an objection, stop talking. The judge will rule on the objection and instruct you whether or not and how to answer the question.
Do not argue with the Judge or address questions to him or her.
If you are asked a question that may require you to answer about a possible crime, say, “I’m not sure how to answer that. May I confer with my attorney?” The most common questions in family law cases that deal with crimes are the use of drugs or questions dealing with failure to report income on income tax returns.
In relatively small cases, it is not unusual for the judge to render his or her ruling at the end of the trial. However, in cases that are difficult or complicated, it is common for the court to “take the matter under advisement.” It is common in those cases for the Court to ask the lawyers to prepare suggested findings for the court to read. Decisions can typically be expected within 30 days from the date that the trial is over or the court receives the suggested findings. However, it is possible for a court to take as much as six months to make a decision.