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ARE YOU TERRIFED OF YOUR SPOUSE'S ATTORNEY?: Tips for Successful Trial Testimony


Are you terrified of your spouse's attorney?

Well, maybe "terrified" is too strong a descriptor - or, rather, too strong to admit feeling. But, if you are, whether or not you admit it, the feeling is normal - particularly if trial is on the horizon. Perhaps you had a bad experience during your deposition, when the attorney (who you refuse to call by name, using simply "him" or "her" ever since) quizzed you about your bank accounts. Perhaps you get annoyed reading "his" or "her" letters to your attorney, a diatribe about all of the things you allegedly did wrong during parenting time. Perhaps you hate the way crowds part as "he" or "she" storms into the courtroom, an old leather briefcase in one hand and a pen in the other, looking for your spouse so the two of them can sit together and jot down all of the nasty questions they plan to ask you.

Or perhaps you've never spoken to her attorney, but you've heard, mostly from her, how much he will "get you" and how "tough" he is.

Or perhaps you've never testified, but you've had nightmares about a cross examination that goes something like the bullying between Jack Nicholson and Tom Cruise in A Few Good Men.
The phrases "I want the truth!" and "You can't handle the truth!" haunt you.

Take it from a trial attorney, sometimes we do look for those Nicholson-Cruise moments, the kind that get our opponent frazzled and force the lies she's been weaving in three hours' testimony to unravel and reveal the truth - my guy really isn't as bad as she says.

But, we can tell when a witness is prepared. Those are the toughest witnesses to crack, and, most of the time, they do not crack. They are calm, cool and collected. They know their facts. They can look us and the judge face-to-face, speak eloquently and sincerely about their family, their children, and so forth. And they can be, and usually are, more persuasive than the attorneys representing them.

Here are the things you should do to be one of these tough witnesses, too:

One Month Before Trial

Get your game plan together with your attorney.

Schedule a meeting for at least one hour (really, at least) to establish goals for your trial, to outline who will testify when, to identify witnesses who will attend voluntarily and which your attorney must subpoena, and to determine which exhibits you have, which your attorney will obtain and which you will provide. Many clients keep a trial notebook that is divided into categories for property, parenting time, employment, and miscellaneous records, and so forth, and includes a notepad for communicating with the attorney during trial. You should gather all of your information in one place so that you and your attorney can refer to records on-the-spot.

If you have not already done so, visit the courtroom where you will testify. If your judge holds public hearings (and most do), try to attend a hearing so that you can see the judge in action and get a feel for his or her tone of voice, courtroom procedures and treatment of attorneys, parties and witnesses. Get acclimated to the environment so that the fact of being in a courtroom is not jarring the day of trial. For attorneys, a courtroom is a second home. It is a familiar place to us. But, for most people, a courtroom is like a hospital waiting room - no one wants to be there, and everyone wants out. The last thing you need when you are testifying is the distraction of large chandeliers, wooden benches, musty books and/or paintings of old judges on the walls. So visit the courtroom early, and get used to it.

Be sure to budget for trial. Have a frank discussion with your attorney about the time and expense involved, and plan accordingly. Trial can be costly, but it is not quite as intimidating or expense, if done correctly, as most clients assume. For example, you may plan your vacation days from work around trial (what a vacation that will be). As another example, you may bring copies of pertinent records to your attorney's office, rather than pay an assistant to make copies. You should discuss your budget early and often with your attorney, and no later than one month before trial.

One Week Before Trial

Rehearse, rehearse, and rehearse.

Meet with your attorney for a dress rehearsal of your testimony. If you can rehearse outside the comfort of your attorney's office, do it. You might reserve a room in a shared office space, use another attorney's office or, better yet, go to the courthouse. Have you attorney ask you typical trial questions for a direct examination and the dreaded cross examination. Now, your attorney cannot tell you what to say, but your attorney should advise you as to the speed, sincerity and relevance of the things you do say. For example, rather than say "I want custody because these kids are half mine" (which is a legitimate feeling), your attorney might suggest that you say "I want custody of my children because they are my children and I have done X, Y and Z with them." Details matter. And the details come through a dress rehearsal.

At home, study the way you speak. Practice speaking slowly and keeping eye contact with your listener. Imagine the listener is the judge or attorney. Most people speak quickly and in a slightly higher-pitch when testifying, which suggests worrying, fearfulness or lying. Practice speaking slowly and in your normal tone.

Often, review your notes to commit pertinent facts to memory. These include dates, names of family members and, for cases involving children, medical histories, education histories and names of friends, teachers, doctors and babysitters. Nothing destroys a witness's credibility quite like forgetting his child's pediatrician's name in a Nicholson-Cruise moment. You should review these facts throughout your case, but no less than one week before trial.

One Day Before Trial


With the anticipating, the tension, and the constant need to pay attention to the words of every witness, to name a few things, trial is exhausting. Get plenty of sleep. If you can take a day off from work, do it. Review your notebook, and go to bed early. If nerves have the best of you, lighten up on the morning coffee and opt for a drink with less caffeine. If you need to go for an early morning run or to the gym, do it. You should practice staying calm throughout your case, but most of all the day before trial.

The morning of, arrive to the courthouse early, have a seat in the courtroom where you will testify and briefly review your notebook. Most of all BE CONFIDENT! You have spent weeks preparing for this day, and it will show.

So, rather than have your spouse's attorney "get you" a la A Few Good Men, you'll show them both who's boss.

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