Witnesses who recite facts as if they were reading a phone book are not likely to capture the judge’s attention or excite her about the righteousness of your cause. To grab the judge’s attention, you and your witnesses need to tell a compelling story with your testimony.
Themes will focus you, your family law attorney, and the judge on the story behind the legalities, and make your story more interesting than the countless others the judge has heard. Effective testimony uses the facts to paint mental pictures so that the judge can visualize your life.
Painting mental pictures for the court is about capturing and keeping the court’s attention. Your family law attorney begins painting a picture with his or her opening statement. Your lawyer needs to be more artist than technician to accomplish this successfully.
Your lawyer should work with you and your witnesses so that you each will know your part of this process, and how you are going to structure your testimony. Your family law lawyer will want your testimony and the testimony of your witnesses to be detailed and descriptive. Your lawyer will ask you and your witnesses to fully describe actions and conduct, not merely summarize or label them.
For instance, instead of having a client testify that she was a “stay at home mom” for most of the marriage, the family lawyer will prepare the client to describe the kinds of things that she did with the kids. In the summers she took them to the municipal pool, and they packed a little picnic lunch, and ate apples under the shade trees. During the school year, she wasn’t just a “room mother,” but rather she assisted the teacher by helping to grade papers, get the mats out for nap time, and so forth.
“I haven’t worked since the children were born,” really doesn’t tell the judge much. In order to paint a picture for the court in the hopes of generating interest in your case, and compassion for your situation, you must tell the judge why you haven’t worked in twenty years, and what you have been doing with your time.
Descriptive testimony does not mean that you get bogged down in minutiae. The testimony should be structured so that it moves at a brisk pace, and segues from topic to topic in an orderly and smooth fashion. Descriptive testimony does not require tedious detail. To borrow the phrase, in order to tell the judge what time it is, you don’t need to describe how to build a clock. Think in terms of painting a big picture, not putting together a two thousand piece puzzle.
Judges are human; there are people that they like, and people they don’t like. Often in family court, the parties have already been in court litigating temporary issues and the judge may have an unfavorable impression of one of both of them. If that happens in your case, the trial is an opportunity to generate some good will through testimony that describes what your life was like before the ugliness of divorce consumed it. Testimony can make you three dimensional, and not just “the petitioner.”
Your family law lawyer does, of course, have to know the audience. Some judges aren’t really all that interested in listening to the travails of the people appearing in front of them no matter how entertaining or interesting you try to make it. Even when faced with a disinterested judge, however, you are also making a record for the appellate court. Your lawyer is entitled, within reason, to try your case as he or she determines it should be tried. If the judge before whom you are appearing is not the kind of judge that likes to hear a lot of background, or day in the life kind of evidence, it is still important to follow the plan and make the record.
Some people are just not any good at telling stories. Trying to extract descriptive testimony from these folks is going to be painful for the court, and counterproductive to the case. In these cases, your attorney will have to work extra hard with the witness to hone the testimony and refine it to point where it’s as good as it’s going to get.
Your attorney needs to know your witnesses’ limitations, and work to avoid putting them in a position where they can only fail. Your attorney will need to determine what is important to establish the themes he or she has selected. In most cases, there will be some witnesses who are good at testifying and some who are not.