How to Testify at Your Family Law Trial in Virginia
For those facing a divorce, custody or support battle, one of the most nerve-wracking aspects of their case is the prospect of testifying at trial. Especially since for many people it is their first experience being in court.
You may be one of these anxious individuals. However, you should not allow trial scenes from Law & Order episodes to scare you, because there are a number of ways you can prepare for the uncertainty of trial.
First, you should familiarize yourself with the trial process and the courthouse. A trial usually proceeds as follows:
- Opening statement of the Plaintiff.
- Opening statement of the Defendant.
- Plaintiff’s case-in-chief, during which they present evidence and witnesses through direct examination. The Defendant’s attorney can cross-examine these witnesses; however, their questions are limited to the scope of the direct examination. If direct examination addresses topic A only, the Defendant’s attorney cannot ask questions regarding topic B as such questions exceed the scope of the direct. Afterwards, the Plaintiff’s attorney can engage in re-direct examination if necessary; however, once again, their re-direct examination is limited to the scope of the cross-examination.
- Defendant’s case-in-chief, during which they present evidence and witnesses through direct examination. The Plaintiff’s attorney can cross-examine these witnesses. Afterwards, the Defendant’s attorney can engage in re-direct, if necessary.
- Plaintiff’s rebuttal, if necessary. In such an instance, they can present new evidence and witnesses to combat points made in the Defendant’s case-in-chief. Of note, is that the rebuttal should not recite the same facts and evidence provided in the Plaintiff’s initial case-in-chief.
- Closing arguments of Plaintiff.
- Closing argument of Defendant.
- Judge’s Ruling.
If you have time in the weeks prior to your trial, you should visit the courthouse to familiarize yourself with the parking situation, security checkpoints and the building itself. In Virginia, circuit court proceedings are open to the public; therefore, you can go into any open courtroom and observe a trial first-hand. Watching another individual undergo direct or cross-examination, witnessing how the attorneys handle exhibits and observing how the judge reacts to certain situations will put your mind at ease.
Second, you should review the transcripts from your deposition, your answers to discovery and any pleadings your attorney filed about the merits of your case—as opposing counsel may ask you about any of these things in their cross-examination. Reviewing your previous answers will ensure any answers you provide at trial are consistent. In addition, if your attorney provides you with an opportunity to review your exhibit book before trial, you should do so to ensure you are familiar with any exhibits that could be used at trial.
Third, on the day of trial, you should follow the below guidelines:
- Refrain from nodding your head “yes” or shaking your head “no” in response to a question. There will most likely be a court-reporter and they cannot transcribe your nods and shakes. They, and the court, require a verbal response to the questions.
- You should face the attorney when a question is posed to you, but then turn toward and look at the judge when you are answering. This will provide an opportunity for eye-contact with the judge.
- When a question is posed to you on cross-examination, you should pause for a few seconds before answering. This allows your attorney to stand and make any necessary objections. If you do not provide them this opportunity, you may begin answering a question that your attorney does not want you addressing.
- Answer the questions that are posed; if the opposing counsel asks you a “yes” or “no” question, then answer “yes” or “no.” This may be difficult for you in the moment. You may feel there are certain points you must relay to the judge—even though those points do not in fact answer the question posed. You may also feel the need to relay this information to “explain away” a response that you believe could be harmful to your case. However, failure to answer the questions posed can cause the judge to assume you are hiding something and trying to deceive the court. This will undermine your credibility with the judge. Answer the question, truthfully, and leave it to your attorney to “fix” the bad response on redirect examination, or through the testimony of another witness.
- If you do not remember an incident or statement when asked about it, do not guess at an answer. It is best to state that you do not recall that particular incident or statement.
- If you do not understand a question, ask the attorney to repeat or rephrase the question. If you do not understand the question being posed, it is likely the judge does not either. There is no harm in asking for clarification.
- Keep your composure, both on the witness stand and when you are sitting at the attorney table. Judges observe witnesses’ behavior to determine whether their testimony is credible. If you become argumentative, angry, hostile or answer a question with a question, they may surmise that you are being defensive because you did something wrong. Your behavior at all times is important—both during your own testimony and when you are listening to other witnesses testify.
If you are facing a divorce, custody or support case, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas, and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.