Mediation Tip #2: Be Prepared!

To maximize the chance of a successful mediation, you must be prepared. You cannot show up for mediation without thinking about about your case and expect it to settle favorably.

The best way to settle any lawsuit is to be ready to try the case. The same is true in family law cases. If you are prepared to take the case to trial, you will know the strengths and weaknesses of your case. When you are not prepared to go to trial, you are shooting in the dark. You have to know your case. You have to know the likely or probable outcome in court. You have to know your best case scenario and your worst case scenario. You gather that information and determine your position through experienced legal advice. Continue reading

Facebook, Infidelity, and Court

An interesting article appeared in SmartMoney today, entitled “Does Facebook Wreck Marriages? This short article examines whether social media–and Facebook in particular–put marriages at risk of affairs.

Author Quentin Fottrell identifies three dangers. First, users who would otherwise remain faithful to their spouses can easily become tempted by the people they interact with online. “The social network is different from most social networks or dating sites in that it both re-connects old flames and allows people to “friend” someone they may only met once in passing.”

Second, even if an affair was not caused by social media, Facebook may lull users into a false sense of security, where they feel safe to post information that might tip off a significant other. “It could be something as innocuous as a check-in at a restaurant, he says, or a photograph posted online.”

Finally, when couples find themselves in divorce court–whether there was an affair or not–information from social media can and will be used as evidence to determine child support, alimony, and even custody. The article quotes attorney Randy Kessler, the current chairman of the family law section of the American Bar Association, that “any pattern of behavior that’s recorded on Facebook relating to parenting skills, excessive partying or even disparaging remarks about a spouse that violates a court order could be admissible in court.”

I encourage you to read the entire article, and to exercise extreme caution in your social media activities.

July’s Post of the Month: Testifying in Court

The judge weighs the witness's credibility.

The judge weighs the witness’s credibility.

[The following article was originally published on July 22, 2011, and was the most viewed post that month.]

It can be a scary and intimidating experience to testify in court. Most people don’t have to testify in court very often. It is okay to be nervous. Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural: Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want. Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision. Whenever I am preparing a witness to testify, I give them the following instructions:

1. Tell the truth, the whole truth, and nothing but the truth. It is very important that you tell the truth, to the best of your ability.

2. Listen to the Question. Make sure you understand the question. If you don’t understand the question, or if the question is vague, ask for clarification. Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3. Answer the Question. Don’t answer the question you wish the lawyer had asked you, answer the question that was asked. Answer only the question asked, without adding information or making commentary.

4. If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5. On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6. Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’ Lawyers don’t always frame questions precisely. For example, if you are asked, “You did not go to work on Monday, isn’t that true?” You answer, “No.” Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?” If you answer, “That is correct,” then everybody will understand what you mean.

7. Don’t argue. The lawyer asking you questions may be rude or insulting. She may insinuate things that upset you. Nevertheless, do not become argumentative. This is not your turn to ask questions. This is not time to have a conversation with the lawyer or anybody else.

8. Don’t get smart. When you are on the witness stand, it is not time to crack jokes or be witty. This is not the time to hurl insult or make snide comments. The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth. It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe. If you make inappropriate comments, your testimony may be disregarded.

9. Don’t cop an attitude when the other lawyer is asking questions. Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10. Don’t get defensive. Don’t assume the questioner is trying to trap you. Don’t infer a bad motive. The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked. Your job is not to be defensive, it is to answer the question.

11. Don’t look for clues or an answer from the lawyer or the audience. Only one witness may testify at a time. When you are on the witness stand, you are the only person who may answer the question. Don’t look to your spouse or anyone in the audience to help you remember something.

12. If you don’t remember, say so. ‘I don’t recall’ is always the right answer if you genuinely don’t recall. If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13. Don’t speculate or guess. Again, if you don’t remember, don’t try to recreate your memory. Don’t be talked into a false memory. If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14. Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions: Who? What? Why? When? How? The fact that the question is open-ended does not give you the right to go on and on with your testimony. Give a concise answer if possible. It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information. Just make sure your answer is not misleading.

15. The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer. This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts. “Isn’t it true that ‘X’?” “It was cloudy that day, wasn’t it?” You may feel that your ‘yes’ or ‘no’ answer is misleading. You may feel the need to explain yourself. This is not the time to do that. If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question. If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so. Until then, answer the question you have been asked.

16. During your testimony, a lawyer might object. Something like, “Objection Your Honor, calls for speculation.” When a lawyer makes an objection, stop talking. Do not answer the question until you are told to do so. Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question. If the judge overrules the objection, you will be allowed to answer. In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17. Sometimes the judge will address you directly. She may ask you are question or give you an instruction. Listen carefully to what the judge is saying and answer the question or follow the instruction. Judges can get quite upset when witnesses refuse to follow their instructions. The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18. Don’t ask the judge if you have to answer the question. You should assume you have to answer the question unless someone says you don’t have to answer the question. There is an important exception to this rule: You do not have to answer a question that would tend to incriminate you. If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination. If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19. Don’t talk over the lawyer asking you questions or anybody else. Wait for the lawyer to completely finish the question before you answer. Your testimony is most likely being recorded by a court reporter or a tape recorder. It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20. Answer with words. That is, do not nod or shake your head: the tape recorder cannot hear your answer. Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

Testifying in Court

The judge weighs the witness's credibility.

The judge weighs the witness’s credibility.

It can be a scary and intimidating experience to testify in court.  Most people don’t have to testify in court very often.  It is okay to be nervous.  Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural:  Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want.  Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision.  Whenever I am preparing a witness to testify, I give them the following instructions:

1.  Tell the truth, the whole truth, and nothing but the truth.  It is very important that you tell the truth, to the best of your ability.

2.  Listen to the Question.  Make sure you understand the question.  If you don’t understand the question, or if the question is vague, ask for clarification.  Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3.  Answer the Question.  Don’t answer the question you wish the lawyer had asked you, answer the question that was asked.  Answer only the question asked, without adding information or making commentary.

4.  If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5.  On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6.  Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’  Lawyers don’t always frame questions precisely.  For example, if you are asked, “You did not go to work on Monday, isn’t that true?”  You answer, “No.”  Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?”  If you answer, “That is correct,” then everybody will understand what you mean.

7.  Don’t argue.  The lawyer asking you questions may be rude or insulting.  She may insinuate things that upset you.  Nevertheless, do not become argumentative.  This is not your turn to ask questions.  This is not time to have a conversation with the lawyer or anybody else.

8.  Don’t get smart.  When you are on the witness stand, it is not time to crack jokes or be witty.  This is not the time to hurl insult or make snide comments.  The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth.  It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe.  If you make inappropriate comments, your testimony may be disregarded.

9.  Don’t cop an attitude when the other lawyer is asking questions.  Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10.  Don’t get defensive.  Don’t assume the questioner is trying to trap you.  Don’t infer a bad motive.  The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked.  Your job is not to be defensive, it is to answer the question.

11.  Don’t look for clues or an answer from the lawyer or the audience.  Only one witness may testify at a time.  When you are on the witness stand, you are the only person who may answer the question.  Don’t look to your spouse or anyone in the audience to help you remember something.

12.  If you don’t remember, say so.  ‘I don’t recall’ is always the right answer if you genuinely don’t recall.  If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13.  Don’t speculate or guess.  Again, if you don’t remember, don’t try to recreate your memory.  Don’t be talked into a false memory.  If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14.  Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions:  Who?  What?  Why?  When?  How?  The fact that the question is open-ended does not give you the right to go on and on with your testimony.  Give a concise answer if possible.  It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information.  Just make sure your answer is not misleading.

15.  The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer.  This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts.  “Isn’t it true that ‘X’?”  “It was cloudy that day, wasn’t it?”  You may feel that your ‘yes’ or ‘no’ answer is misleading.  You may feel the need to explain yourself.  This is not the time to do that.  If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question.  If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so.  Until then, answer the question you have been asked.

16.  During your testimony, a lawyer might object.  Something like, “Objection Your Honor, calls for speculation.”  When a lawyer makes an objection, stop talking.  Do not answer the question until you are told to do so.  Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question.  If the judge overrules the objection, you will be allowed to answer.  In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17.  Sometimes the judge will address you directly.  She may ask you are question or give you an instruction.  Listen carefully to what the judge is saying and answer the question or follow the instruction.  Judges can get quite upset when witnesses refuse to follow their instructions.  The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18.  Don’t ask the judge if you have to answer the question.  You should assume you have to answer the question unless someone says you don’t have to answer the question.  There is an important exception to this rule:  You do not have to answer a question that would tend to incriminate you.  If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination.  If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19.  Don’t talk over the lawyer asking you questions or anybody else.  Wait for the lawyer to completely finish the question before you answer.  Your testimony is most likely being recorded by a court reporter or a tape recorder.  It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20.  Answer with words.  That is, do not nod or shake your head: the tape recorder cannot hear your answer.  Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.