10 Tips For Being A Good Witness

Today, I was a witness in a trial.  I hate being a witness.  There is nothing so nerve-wracking as sitting in that witness box.  Do I look at the judge or at the attorney?  Am I speaking up?  What if I don't knew the answer to a question?  What will the other side ask me.  Nerve-wracking.  I did fine, but it got me thinking on what it takes to be a good witness.  Here are 10 Tips.

1.  Speak loudly, slowly and clearly.  Those microphones do not necessarily amplify; they are there to record.  Some of us are a bit on the hard of hearing side, and if you speak quickly, you are probably not speaking clearly, and I will have to ask you to repeat yourself.  It's even worse if the Judge has to ask you to repeat yourself....continuously.

2.  Look at whomever makes you most comfortable.  I was a judge at this year's high school mock trial competition, and all of the coaches must have told their students to direct their testimony to the judge.  Having them all stare at me when they answered questions was a lot forced and made me a bit uncomfortable.  When I testify, I look at whomever is asking me the question and occasionally, at the judge.  It just feels more natural for me.  Do what feels natural to you.

3.  Control your facial expression.  Just because the witness box may be below where the judge is sitting or directly to their side, or just because the judge appears to be focused on the paper in front of them, do not assume they aren't watching you.  They can see you, and part of how they view your testimony is how you act.

4.  Listen to the question and answer only that question.  Take a deep breath.  Calm yourself.  Really listen to what is being asked of you, and answer it.  Don't answer the question you think they should be asking.  Don't answer more than the question, even if you think it helps.  If they need to, they'll ask a follow-up.  Remember, the answer to the question, "Do you know what day it is?" is "yes," not the name of the day.

5.  Don't argue with the questioner.  Just answer the question. The judge wants the information; and they don't want to have to play referee to get it.  Remember, even if it is the opposing party or their attorney asking you the question, they are doing their jobs in the courtroom.  It's not personal.

6.  Don't play word games with the questioner.  That semantics crap just annoys everyone.  If a word has a common meaning and it is used in the usual way, don't play games.  Just answer the question.

7.  Don't be afraid to ask to have the question rephrased or repeated.  Sometimes, questioners think they are really clear in their questioning, because after all, they know what they're asking.  Problem is, sometimes, that's not so clear to our listener.  It's OK, ask us to say it a different way or to repeat it.

8.  Don't guess.  If you don't know, say you don't know.  Don't do it with every question, or you violate rule #6.  It's OK not to know or remember everything.

9.  If the other side says "objection," STOP TALKING IMMEDIATELY.  Let the Judge and the attorneys discuss the issue.  If the objection is sustained, don't answer the question.  If it is overruled, go ahead and respond, but not until the Judge rules.  Maybe I would be rich if I had a dime for every time a witness tried to explain why what they were about to say wasn't really objectionable.  I'm an attorney, and I don't even chime in on those discussions; I just check out my cuticles, or the way that bug is crawling across the witness stand, or how great the clerk looks in the blouse she's wearing.  I digress, but you get the picture.  Be quiet.

10.  Don't worry if you said something you think may be harmful, or didn't say something you should have.  The side that called you as a witness has two chances to either get out all the information or fix a mistake.  They call you for your direct testimony, and then after the other side cross examines you, they get to ask you rebuttal questions.  If they don't ask you anything on rebuttal, it means that whatever you are worrying about your testimony wasn't bad enough for your side to need to fix, so you can relax.  Let the attorney worry about what is enough and what hurts the case.

11.  A bonus for you.  Please dress at least in the style known as business casual.  The court and the process deserves the respect of pants without holes, shoes with toes if you're a man, blouses and hemline that leave something to the imagination, and pants below the knees.  It's not the grocery store on a Saturday.

Here in the Trenches.

Lessons From a "Failed" Mediation

I just had to file suit in one of my cases here in the Trenches.  We had attended mediation and made some progress.  Then we stalled.  Some people did some things they shouldn't have done and it destroyed whatever tenuous trust existed between the two spouses.  My client no longer believed anything that came out of the other spouse's mouth, including any of the underlying information on which we had based our prior negotiations.  My client needed to see the numbers - under penalties of perjury.  That's all there is to it.  So, I filed and I asked the other attorney if they would accept service of the court papers.  There are two points I want to make based on what happened after that.

You see, the first thing that happened was that the other attorney, who I have known and trusted for many years, called and email me so we could talk. The second thing that happened was that I called her.  She wanted to know what was up and why.  I told her.  She then said two things:  first, tell me what documents you need to see and I'll get them for you; and second, please send me another settlement proposal so we can continue to narrow the space between our clients' positions and meet their needs.  She knew I didn't make the decision to file lightly and that simply because I filed didn't mean we were in all out war.

The first take away for the client from all of this is that you really, really want your attorney to not only know the other attorney, but also to respect and get along with them.  It is your best option for a settlement that works for both you and your spouse.  This attorney and I trust each other.  We both know that we both know the practice of family law.  We both know want to help our clients be OK and move forward with their lives (not all attorneys share this philosophy).  We can believe that the other will not take an action without a good reason.  We know the other will not ramp it up without a conversation, and we will never shut down those avenues.  All of this is vital to making sure the clients get what they need, and that they get what they need in a cost effective way.  If this attorney and I did not have the relationship we do, there would be no offers of document production or continuing conversations at this stage of the game.   No, we would simply retreat to our corners and start churning out discovery, which in case you all missed it, is a huge money maker for us.  We'd be preparing for a 4 day trial, another big money maker, without any effort at settlement except what the court requires.  If I don't trust what you say,  I won't trust what you'll do.

The second takeaway is that the choice of process can be very fluid in family law.  There are very few, if any, process choices that are irrevocable or which cannot encompass other process choices.  Sometimes, mediation fails to reach a full settlement, and the case settles with lawyer-to-lawyer negotiation.  Sometimes, mediation fails to reach a full settlement, the court process starts, and then parties return to mediation.  Sometimes, folks start in court and end up in collaboration.  Sometimes, they start in collaboration, move to court and end up in mediation.  I always say there is a process choice that is right for every person; it's an art (and sometimes trial and error) to figure out which one it is in a given case.  I don't think using any process, even if it is not the one that leads directly to a durable agreement, is wrong.  Even in this case, I see a value in our attending mediation.  Each process helps the client and the attorney move forward toward resolution; thankfully the other attorney in my case and I see our movement from mediation in the same way.  Here in the Trenches.

Whatever is Child Support For?

Like many of us here in the Trenches, I think I'll scream if one more parent who pays child support tells me that they're pissed because the other parent isn't even spending their child support on the children.  It usually goes something like this:  "I pay my child support, and it's a lot of money, and the other parent told our child he/she can't afford to buy them "X."  What are they using the money for?  I certainly don't see our child in new clothes, and you should see the state of their shoes.  My ex, on the other hand, just bought a new car; is that where my money is going?""  OK, let's put the myth that child support is for the direct, palpable expenses of the child to rest right now; it isn't.  Perhaps a history lesson is in order here, because that's usually where I go first.

Way back in the dark ages, before 1990 or so, there were no child support guidelines, and child support was up to the discretion of the judge.  No disrespect to judges intended here, but most of them had no clue how much it costs to raise a child.  Most of them set child support so low that the custodial parent couldn't afford the ordinary expenses of their household and ended up on federal entitlements like food stamps, welfare and medicaid.  It cost the federal government a lot of money, so they government decided to do something about it; they tied federal highway funding to the passage by each state of laws that standardized the amounts of child support through their state.  Lo and behold, each and every state wanted highway funding, so they passed some form of child support guidelines.  Those guidelines are a formula that represent the legislature's best guess of how much it costs on average around the state to raise children.  By "raise children" what we mean is the incremental cost of a larger home, more utilities usage, higher grocery bills, more transportation costs of having additional human beings in a home, along with the direct costs of clothing, haircuts, medical copays and the like.  Their purpose is so that the child enjoys a relatively comparable standard of living in both houses; it's really not OK that they live like royalty in one house and like a pauper in the other.  Yes, child support can be a huge financial burden, and it feels really unfair to be paying so much money and see no benefit.   After all, when you spend that much money, you want to be able to quantify what you're getting.  I can't help you with the amount of support; that was set by the legislature.  Let me help you with seeing a benefit for you financial sacrifice.  What you're getting is your child having a decent place to live, electricity and running water, clothes on their back, a reliable car in which to ride, and a co-parent who isn't quite so stressed out about finding the funds with which to do that.  Your child benefits from all of that because of you.  That's priceless.  Here in the Trenches.

Hope Springs Eternal

I thought I was trying a case today and tomorrow.  I thought there was no way to settle it.  This case had gone on for 4 years, almost without abatement.  The parents have been caught in a cycle of pain and disappointment.  One is trying their darndest to break the cycle; the other is too hurt to move beyond the pain.  Their child is suffering mightily.  My client thought there was no hope of moving forward and had no choice but to ask the court to make a choice between the two parents.  It wasn't what she wanted, but without cooperation from the other parent, it was what she had to do.  At the last minute, we were able to resolve the dispute.  Is the resolution perfect?  No.  Is it possible everything we put into place to help these parents move forward might fall apart?  Yes. Might they never get out of their cycle?  Possibly.  Sometimes, there is no happily ever after.  Sometimes, you do the best you can and hope for the best.  If they can adhere to the consent order we entered today, there is hope for this family and for their child.  I'm keeping my fingers crossed.

What I hope for them is that they retain the optimism they had today.  We were fortunate that the judge insisted that even though we had a signed agreement, the parents nonetheless come before him so he could ensure that they understood their undertaking and its importance.  The judge did a masterful job.  He asked each parent questions about their son that made them smile.  He talked to each of them about the struggles their son was enduring; he opined that parental conflict probably made those problems worse. He asked them about the terms of the agreement and made sure they understood their undertaking.  He warned them about what would likely happen if they failed to obey the order they were entering.  He made them smile and he made them tear up.  I hope he caused them to soberly reflect.  They left the courtroom a little lighter and with some hope.  I wish for them that the actions they take justify that hope.  Here in the Trenches.

Trial Tuesday - Watch Your Ps and Qs in Court

There was a time in my life (and I know this is going to make me sound old) when, if you told someone to dress like they were going to church, or like they were going to travel, or they were going to work, you knew they would be dressed appropriately for court.  You knew that the men would be wearing dress slacks and either a button down shirt or a polo, and the women would be wearing nice slacks or a skirt with a blouse.  If you were lucky, the men would come in a tie and the women would wear a dress.  Back in the old days, we knew that the way you dressed when you showed up demonstrated the respect you had for the institution.  Those days are gone.  Mother lives near our local Catholic Church, and I am often running by there as folks are arriving for mass.  The way they dress appalls me:  cutoffs and bikini tops (it is Florida), jean shorts, "distressed" jeans, running clothes., and the like.  When I travel, I see folks dressed in their pajamas.  So now, instead of just telling clients to dress like they're going to church or work, I have to spell it out.  Oh, I know, everyone dresses down these days.  Not in court when you're my client.  Shorts and sandals?  Heavens no, especially not for men.  Momma told me you only get one chance to make a first impression.  If you don't think the judges notice what you wear and decide whether it's appropriate, please think again.  If you don't think that what you look like in the courtroom influences how the judge sees your case, please think again.

While we're on that subject, don't ever think the judge doesn't notice what's going on in their courtroom.  Sure, they may look like they are intent on the witness in the witness box.  That doesn't mean they don't notice you rolling your eyes, or mouthing "liar", or taking and receiving texts (yes, all those things have happened).  Judges are like your momma - they have eyes in the back of their heads, they can see through closed eyelids, they hear that mutter under your breath that you thought no one heard.  One of the reasons that it is so darned difficult to overturn a judge's decision on appeal is that the appellate court defers to the individual who had, not only the opportunity to hear the evidence, but also the ability to observe the witnesses and assess the demeanor of the litigants in their courtroom and on the stand.  Don't believe me?  Read about 100 published appellate opinions and I guarantee you will, because that's what they say.  There are so many ways to win or lose a case.  Why would you let how you look and how you behave, instead of the facts, determine the outcome of your case?  Just my $.02.  Here in the Trenches.

TGIF - Happy Weekend

TGIF!

Wednesday Workings - Why Your Financial Statement is Important

One of the first documents I ask clients to prepare here in the Trenches is their financial statement.  "What is a financial statement," you ask?  Simply put, it's a budget.  You know, one of those things we're told every household should prepare and use, but almost none of them do....until you're getting a divorce.  Then, it's one of those documents that you are required to file with the court.  Preparing one of these financial statements is a daunting task, as in most jurisdictions it is 8 or so pages long.   Lots of clients try to half-ass it and guesstimate the dollar figures.  In my office, that doesn't fly.  I've been in the Trenches for almost thirty years, and I've seen hundreds of financial statements.  I know what numbers look reasonable and what don't (just a hint - any financial statement in which all the entries end in zero or five don't pass muster).

Oh, I hear you saying that it's just a stupid form, so why put any effort into it?  Well, because it's not just a stupid form.  It is perhaps one of the most important documents you'll create.  How can I know how much alimony you'll need, if I don't know your expenses?  How can I know how much alimony you can afford to pay if I don't know your expenses?  You want to keep the house?  Terrific, but can you afford it?  The financial statement lets me know.  Were you and your spouse living beyond your means and we need to talk about more realistic expectations for the future?  Will you be able to add to your retirement, post divorce?  Yup, all things the financial statement tells me - if you put the effort into it to do it right.  Otherwise, you're right, it's just a form.

So, get out your checkbook, your credit card statements, your bank statements.  Take a look at your historic spending.  Think you'll need to move?  Look into housing costs where you might want to live.  Is your car on its last legs?  Look into the cost of car payments for a newer one.  Footnote the heck out of your financial statement.  Be as accurate as possible.  Help me to help you.  Here in the Trenches.