Part 5: Advice from a Kalispell Divorce Lawyer: How to prepare to testify at a Contested Hearing or Trial?Marybeth Sampsel
Over the last several weeks I have been blogging about what to expect at hearings or trials in Montana divorce (dissolution) or Montana parenting cases. For more information, see Part 1 and Part 2 and Part 3 and Part 4 of this series. Today’s blog is about preparing to testify at a hearing or trial.
Once again, it is necessary to give a WARNING: Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court. Scheduling, practice and procedure can very from county to county and even from judge to judge. Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case. Call your local Montana District Court courthouse to find out when to see your judge in action.
If you do have an attorney, you will be sworn in (i.e. swear to tell the truth, the whole truth, and nothing but the truth so help you God) and will take the witness stand. Your attorney will have the opportunity to ask you questions first – this is called “direct exam.” Your attorney’s questions will be “non-leading” questions. This means that they will generally be open-ended questions that cannot be simply entered with a “yes” or “no” answer. Non-leading questions often begin with who, what, where, or when. On direct exam, it is your opportunity to tell your side of the story. Your goal, however, is to tell your story fully and completely without being long-winded or giving irrelevant information.
If you are not represented by an attorney at your hearing or trial, the Judge may have you testify from your seat at the counsel table, rather than take a seat at the witness stand. Even if you do not take the witness stand, the Judge will still have you sworn in and you will be expected to testify truthfully. If you do not have an attorney, you will not have someone asking you questions on direct exam. Instead, the Judge may ask you questions or the Judge may just ask you to tell him/her whatever you feel is important. Even without an attorney, your goal is the same. Tell the Judge your side of the story without wasting the court’s time.
Once you are done testifying on direct, the other side will have the opportunity to cross-examine you. During cross-exam, the adverse may ask you “leading” questions, or questions that are designed to lead you to a certain answer or conclusion. You may get questions that being with, “isn’t it true…” or “won’t you admit that….” Generally the adverse is looking for a yes or no answer, but you may be unable to answer a question with simply yes or no. If the other party does not have an attorney, the court may allow the person to ask you cross-exam questions. As you can imagine, cross-exam can turn ugly when no attorneys’ are involved, so the Judge may handle the case a bit differently to avoid a verbal altercation between parties in court.
After cross-exam, your attorney can come back and ask you some additional questions to clean up any issues that may have arisen during cross-exam. This is called re-direct. Your adverse can then do re-cross, your attorney can do re-re-direct, and so on. It can go on and on!
During your testimony, the Judge will be assessing many things about you – not just what you say. Some of the things the Judge will be considering are the following:
1. Truthfulness. Does a witness seem to be telling the truth? Does the witness have reason to lie? Would the witness gain anything by lying? Does this witness seem/appear truthful?
2. Impeachability. Is there something about this witness that makes them unreliable or would diminish the value of their testimony?
3. Demeanor. Does the witness seem confident, nervous, afraid, etc? Did the witness dress appropriately for court? Does the witness treat the Judge and other court personnel with respect?
Testifying in court can be extremely nerve-wracking. The more prepared you are, the better you will feel. Again, I urge anyone who will be testifying in court to go watch a hearing or trial.