How to Prepare for Your Testimony in Your Family Law Case

It is always important to be fully prepared whenever you are plan to appear in Court in your Family Law case. Preparation is the key. I spend many hours getting ready for these kinds of hearings and I want my clients to be fully prepared as well. You need to know that your testimony is, “evidence” in your case and the judge will decide if you have been truthful. The judge will give weight to what you have said, based on the judge’s interpretation of your credibility as it relates to the disputed issues. I have observed hundreds of witnesses testify and the single most important factor for any witness is that they present their testimony in an honest and forthright manner.

Parents are not usually “expert” witnesses, so when they testify, they are doing so as “Lay Witnesses.” The Colorado Rules of Evidence define what kind of testimony can be given by “Lay Witnesses”. As an example, in a parenting modification case or a divorce case involving children, an experienced lawyer may want to ask the client their opinion about the childrens’ behaviors when they return from seeing the other parent. Lay witnesses are permitted to give their opinions, but those opinions may have to be “qualified” or a “foundation” established that satisfies the Court.

Remember, that in all Family Law cases there will not be a jury listening to your testimony. Judges, not Juries, listen to the evidence. Judges must decide as the, “trier of fact” whether a witness is “credible”. Credibility goes to the heart of whether or not a judge will believe the testimony and why the judge should rule one way or the other. When a parent testifies in an untruthful manner, it is usually devastating to that parent’s theory of the case or what that individual is ultimately asking the judge to do. Parents, who have poor memories, testify about facts that are inconsistent with the other evidence in the case or who acknowledge a substance abuse or alcohol problem, are not considered “credible” in the eyes of the law and in most cases that kind of testimony is going to be disregarded.

If you are one of our clients, or a family member of one of our clients, and I know that testimony before a judge is going to be needed, we will do many things to prepare you for your testimony well in advance of your hearing and expected testimony, so that you will know what questions or subject matter is expected. Another reason to practice with your lawyer is so that you know what to expect if the judge or the other attorney questions you. In Family Law matters, the most common hearings where testimony is likely needed, occurs at a Temporary Orders Hearing or a Contested Motions or Permanent Orders Hearing. When I prepare for these kinds of Hearings, I can tell you what kind of critical information must be presented to achieve success. As a trial attorney, I can tell whenever a lawyer has not prepared with their clients or witnesses, as it becomes obvious to me. More importantly, if your lawyer does not rehearse with you, you are going to be at severe disadvantage when you appear in front of the judge. Lawyers who do not have trial experience are not the ‘right’ lawyers for family law cases.

Here is a checklist to keep in mind that will assist you in advance of your testimony before a judge in a disputed Family Law Hearing:

  1. Obtain knowledge regarding the location of the courthouse, travel time, parking locations and the actual courtroom where you are expected to appear.
  2. Make sure you meet your lawyer to prepare for your testimony, well in advance of any Hearing.
  3. Know the time that you are expected to be in court and meet your lawyer at the courtroom, which should be well in advance of the starting time for your hearing.
  4. Become knowledgeable about the nature of the pending disputes, your positions and those of the other party. You should be prepared to not only state what you want to see happen, but prepared to answer questions about what you know about the other party’s positions. You should study your notes, text messages, diaries, or anything else that will refresh your memory of events and help you. It is unlikely that a judge is going to allow you to read from a prepared script or your notes, so becoming comfortable with all of the facts and your disputes with the other party, is extremely important.
  5. Become very familiar with the “Exhibits” in your case or the documents that both you and the other party have filed with the court. In most Family Law cases, these documents include Sworn Financial Statements, pay records, tax returns, banking and debt statements, etc. You and your lawyer should go over these kinds of documents to help you prepare for your testimony. In my office, whenever a client is expected to testify, I will provide the client with a file of those documents so that the client can have ample time to read all such materials before the court hearing.
  6. Make an impression with the judge by what you wear and how you look. Ultimately, the way you dress for court will tell the judge that you are taking this matter seriously or not. As the Family Law Advocate for the American Bar Association, recently wrote, “You should dress and groom yourself as though you are preparing for an [important] job interview.”
  7. Always be polite, respectful, civil and courteous when answering questions from your lawyer, the other lawyer, or in some situations where the other party does not have a lawyer, when responding to questions directly from the other party. Do not use derogatory language in describing the other party or when explaining yourself. Eye contact is
    also important as it speaks to your credibility.
  8. Be aware that in the courtroom and even in the hallways, that how you act and what somebody may have overheard you say, may come back to haunt you when you testify.
  9. While it is not uncommon for family or friends to sit in the courtroom during Family Law hearings, you should talk to those people who plan on coming to court, and tell them that they need to not show emotion, nod their heads during testimony or in any way comment about what is taking place during a hearing.
  10. The more experience your lawyer has in preparing clients and witnesses for hearings, the more that kind of experience will directly assist you. In fact, my clients all tell me, after a hearing has been concluded and the judge has ruled, that by rehearsing their testimony beforehand, they became less stressed out over the case and more comfortable. A confident and well-prepared witness always maximizes the chances of success when appearing before the judge.