Tuesday, January 17, 2017

Family Law Part 4: Testifying in Court

Written by Jordan J. Mruz

            More often than not, when a case gets to the point of a trial being necessary, I will have a conversation with my client and discover that they have never testified in court before. I can understand why someone would be nervous to testify in court but with proper preparation and knowledge of the process you should be able to testify confidently.

Direct Examination

            Direct examination is when one party calls you as a witness to testify. Generally your attorney will call you as their witness, but the other party can call you as a witness for them as well. When you are called as a witness and you are being questioned by the attorney who called you up to testify, this is direct examination. Generally speaking the questions you are asked on direct examination will be open ended questions (meaning more than a one word answer). If you are on direct examination by your attorney, they will have a framework for how their questions will go. They may start with general questions, then move on to a topic that there is not much disagreement on, such as property, then move to child support, and finish with custody and visitation. I do not believe there is any right or wrong way to order the questions, but your attorney should discuss with you the direction their questioning will take.


            Cross-examination occurs when the party who did not call you up to the stand, has a chance to question you. These questions will usually be leading questions (one word answers, usually yes or no). Leading questions are allowed on cross-examination and because of this, attorneys use them because they can limit your testimony to one word answers that fit their version of events. An example of a cross-examination question would be, “Isn’t it true that you have been arrested five times.” The correct answer is either yes or no. You may have been arrested five times but only been charged with a crime on one of those occasions and you want to tell that to the attorney questioning you. If it’s the other party, they probably are not going to let you answer beyond “yes.” Your attorney will hopefully do a follow up question on their re-direct examination to clarify this topic. Something to remember: cross-examination is supposed to be limited to what is brought up during the direct examination. Depending on the judge, they may be very strict with this rule of evidence, but they may not.


            As it mentioned in the previous paragraph the party who calls you as a witness will have an opportunity for redirect after the other party has cross-examined you. Again this testimony is supposed to be limited to what was brought up in the cross-examination.

Things to Remember When Testifying

            First thing to remember is to tell the truth. It is much better to tell the truth about something on the stand than to get caught in a lie on cross-examination. Hopefully you and your attorney have discussed the areas that may hurt your case so you have a chance to testify and explain them to the judge in your own words rather than the opposing party.

            Remember to answer the question that is being asked. This is a good rule in general, but you should really remember this when your being cross-examined by the opposing party. If they ask you a yes or no question, answer with a yes or no. If they ask you about the time you got a possession of marijuana ticket in 2014, only talk about that incident and not any other things you did before or after that. You do not want to offer up more answers to the opposition that could be used against you right away. If they like what they are hearing from you, they may let you keep talking instead of objecting to your answer that was not just yes or no.

            Keeping your composure on the stand is another key. Some attorneys will try very hard to get you rattled on the stand. They may ask you really difficult questions that you do not want to answer just to throw you off. They may speed up their tempo of questions to get you to answer more rapidly than you would otherwise and maybe make a mistake. Losing your cool and making dramatic faces on the stand will not help your case.

            Last thing to remember is to stop and think about the question being asked. You do not have answer immediately upon the attorney stopping. You can pause for a second to think about the question. Make sure you heard it correctly. If you do not understand the question, it is okay to ask the attorney to repeat it or to ask it differently. It is better to get a question clarified than to offer up an answer that does not match the question. If you do not know the answer to the question, simply state you do not know.


            These four things are not the only things to keep in mind while testifying, but I believe they are among the most important to remember. If you remember these things and remember to breathe, then you should be able to testify successfully. 

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