Divorce preliminary and final hearings occur across the state every day. Most litigants have some general knowledge of what occurs and are prepared for the process by their attorneys. However, in a significant number of cases one or both parties make the same avoidable mistakes that cause them to lose credibility with the court—or worse yet—lose their case because of their disruptive behavior. The take-away from this blog is there are simple mistakes to identify but often hard in the pressure of the courtroom to avoid if you do not make a conscious effort.
Talking out loud when you are not the witness. Whoever is the witness, whether testifying from the counsel table or the witness box, is the focal point for the judge and attorneys—and should be for the parties so they can alert their counsel to key points for cross-examination, further questioning and the like. However, many times, the parties blurt out responses, such as “that is a lie” or try to talk with their attorney while the attorney is trying to listen to the witness. In the first case, this is a surefire way to be admonished by the court and can even lead a party (or witness) to be found in contempt. Don’t do it. There will be key information you hear that you need to relay to your attorney, convey this in writing or at a recess. Don’t talk to your attorney while he or she is trying to pay attention to the judge, listen for objection, and capture the witness’s testimony.
Objecting. In an equal number of cases, a party or witness will object themselves to answering a question. This is not proper and a sure way to lose credibility with the court and hurt your position. Only the attorneys or judge can lodge an objection to the question. Just answer the question. In most cases, it is because the witness believes the question is harassing or not relevant to the case. However, you have to answer it. Assuming it is an incomplete answer, your counsel will likely have a chance to correct the incomplete answer on further questioning, by an exhibit or at a later point in the trial. The moral of the story is a litigant or witness who raises their own objections is likely to hurt their case and be admonished by the court.
Refusing to answer a question. Trials are a grueling process fueled often times by the emotion of the loss of a marriage. For this reason, some questions may strike an emotional nerve and litigants with some frequency just sit silently or refuse to answer. This is not acceptable and may be interpreted by the court in a variety of ways, including finding a witness in contempt. Divorce is hard and you have to answer uncomfortable questions. An exception that comes up sometimes in divorce hearings is one that aimed at obtaining a response to illicit and criminal activity. In this case, which is something you should discuss with your counsel well before trial if such issues are anticipated, you may assert your Fifth Amendment privilege against self-incrimination and remain silent if there is risk in any proceeding that your answer my expose you to prosecution.
Making faces, noises or gestures. While the reason most trial court judge’s benches (the test they sit at) are raised in the courtroom is probably lost to history, trial court judges are looking as much as they are listening. In a stunning number of cases for most seasoned divorce counsels, they have had the judge admonish a party or witness for making faces, “mouthing” a response, or making inappropriate gestures (yes you can probably guess some of these). Trial court judges are not amused because the courtroom is a special place where every litigant has the right to be heard and have a neutral judge decide their case. Acting in childish ways may get you treated like a child and result in an order consistent with your behavior. The trial court judge can judge you by what you do as much as what you say. Be aware some of these behaviors are almost automatic and do not find yourself in the situation of doing such things or you show the court you do not respect the special place the courtroom is in Indiana and America.
This blog on common mistakes litigants make on a routine basis that weakens their case is written by seasoned trial attorneys at Dixon & Moseley, P.C. We hope it helps you understand what not do to in a courtroom and why. If so, it has met its educational goal. Dixon & Moseley, P.C. attorneys try complex civil and divorce cases across the state. These mistakes are also common in civil and criminal litigation. Avoid them. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.