Rules Regarding Your Trial And Trial Testimony

After discovery is complete if you are unable to settle all issues in a case, you must present your case to a judge or jury. That is a trial. The purpose of a trial is to present your case, both law and facts, in the most favorable light possible. We do that in a courtroom and your testimony has a specific role in your case’s presentation.

A. The Courtroom and Surrounding Complex

1. The Courthouse Complex

The scrutiny of your conduct and behavior, together with that of your attorney, starts in the parking lots surrounding the courthouse. For it is there that you may first be observed by potential jurors, court personnel, prospective witnesses, or anyone else who may have any impact on the final result of your trial. Therefore, from the time of arrival at the courthouse complex, you must be conscious of how others may perceive you or your behavior.

2. The Courtroom

You may have already appeared in a courtroom for some preliminary hearing. If you have you know that a courtroom looks similar to what you have seen on television. The judge is at the front of the courtroom, elevated above everyone so he can see everything from his bench. There is a place for the court personnel, generally a clerk or two, a bailiff and a court reporter. There is a special place for the witness to sit, generally referred to as the witness stand. There is a jury box with twelve seats in it (upon occasion there may be six seats) and is usually to one side so the jurors can observe everything that goes on in the courtroom.

As you come into the courtroom, you will probably walk into the spectator area. There is a gate through which you and your attorney will pass at the appropriate time which leads to the counsel table(s) before the judge’s bench. Your attorney will assist you as to when you are to enter and where you are to sit. During all other times when your trial is not in session, except for brief breaks, you will sit in the spectator’s section.

Before any trial starts you need to know the location of rest rooms, water fountains, coke and coffee machines, or areas in which you are forbidden to enter such as the areas behind the Court’s bench.

B. Decorum in the Courtroom

1. The Client’s Appearance

Since you may be observed by someone who may impact the outcome of your case, you should look your best and behave your best from the moment you arrive at the courthouse complex until the moment you leave the area. If you have any doubts about your dress or behavior, check with your attorney’s office.

Your clothing should be appropriate, relatively bland (the June and Ward Cleaver model), that is, there should be nothing ostentatious or flashy. You cannot go wrong if as you leave the house, you get a negative answer to the question “Would my mother be embarrassed if I took her to church dressed as I am?”

Women should avoid flashy jewelry, purple nail polish, tight clothing, extremely short skirts, excessively low cut bodices, unkempt hair, and the like. Men should avoid flashy jewelry, an unshaved look (unless they normally have facial hair), unkempt hair, shirts unbuttoned significantly below the neckline with a show of gold chains or jewelry, wearing hats in the courtroom (the “gimme” type, cowboy, or otherwise). Men, please leave the earrings home. Men do not have to wear ties and jackets, but many attorneys prefer that they do.

Any lapel pins suggesting your position on provocative political, religious or social issues should be absent, to avoid evoking any adverse response. You should not wear dark glasses in the courtroom and if you do, court personnel may request you to take them off. There is no gum chewing or eating in the courtroom. Many courthouses currently are no smoking facilities or have specified smoking areas. These policies must be scrupulously followed.

2. General Behavior

Always be punctual for court. Be sure you know the exact time you are supposed to be in the courtroom. Be sure to give yourself sufficient time to deal with any traffic congestion, find a parking place, walk from the parking place to the courthouse, go through the security system (if the court has one), wait for an elevator, and get to the courtroom. In some major metropolitan areas there can be a considerable lapse of time between arriving in the courthouse complex and getting into the courtroom, depending upon the time of day or the day of the week. If you have some concern about these factors, ask a staff member for some assistance in gauging your time so that you can be punctual.

At all times be attentive to the proceedings. You will not be attending your trial in a vacuum. Before trial you will have read your deposition to be certain you are familiar with your prior testimony. You will have read and refreshed your recollection as to interrogatories which have been asked of you and answered by you. You may have read any prior testimony in earlier hearings. You will have reviewed critical documents. You will have refamiliarized yourself with your inventory, updating for any changes. You may have been prepared for the questions your attorney will ask you as well as for potential questions your spouse’s attorney might ask you. You will have talked with your attorney about the theme of your case or his theory of recovery, with an awareness of the advantages of your case and anticipated pitfalls that may exist. You will have been completely truthful with your attorney and he will have offered you guidance on how to handle various issues. So as you approach trial, you will have an understanding of the issues and evidence that is anticipated. An informed client who pays attention to the proceedings can be a help as opposed to a hinderance to his attorney and the cause.

Be very careful of your body language, both while court is in session and when it is not, whether you are testifying or sitting at counsel table. Body language sometimes speaks louder than words, and it can be particularly significant to an experienced judge in a bench trial.

Dramatic gestures, grimaces, vigorous and even subtle shakes and nods of the head, furious writing, drumming on the table with pen, pencils or fingers, mouthing unspoken words to the opposite side of the table, mouthing unspoken words to a witness while he is testifying, passing or throwing notes to the opposite side of counsel table, whispering statements to your attorney in such a loud voice the opposite side, the court or court personnel can hear what you are saying, clicking of ball point pens, jingling change, or use of profanity are all types of body language and behavior to avoid.

If it is necessary for you to take any medication during the course of your trial, you need to alert your attorney, either directly or through a staff member, so arrangements can be made to assure you an appropriate opportunity to do so. If you are on any particular medication during your trial, your attorney should have that information before commencement of your case.

It is acceptable to bring a book or magazine to keep you occupied during court breaks, recesses, or other interruptions during the trial. However, reading of books, magazines and newspapers are generally not permitted in the courtroom while court is in session.

If you carry a beeper or mobile telephone with you, be sure that it is not activated while you are in the courtroom.

It is totally unacceptable to bring any type of weapon to the courtroom. Do not even think about it. Besides, many courthouses now have electronic security systems that one must go through to even gain admittance to the court areas.

3. When You Rise

Rising momentarily when a judge enters the courtroom is a recognized sign of respect. Frequently as a judge enters the courtroom, a bailiff will say something to the effect “All rise, the 123rd Judicial District Court is now in session, the Honorable John J. Jones, Presiding.” In such an event, of course, you rise and remain standing until the judge directs that all be seated. Upon occasion this formality is not observed, in which event it is not inappropriate to remain seated when the judge enters, but if you see the attorneys at the front of the courtroom rise, you will not be criticized for rising also.

You will observe that attorneys are expected to rise when addressing the judge. Since you are never to address the judge directly, unless the judge has directed a matter to you which calls for a response, you may stand when addressing the Court, i.e. judge, but it is not imperative. Certainly standing to address the court will show proper respect, but many times a judge will suggest that a party remain seated. If that is the case, then do so.

4. Conversing with Others

In the event the judge directs a question directly to you, you are to respond in a respectful manner, truthfully and in a voice loud enough to be heard.

Other than for social amenities you should not engage in conversation with opposing counsel or your spouse in the courtroom, during breaks or otherwise, without the presence of your attorney and your attorney’s permission. That does not mean to say you must engage in social amenities, but they are permissible.

In any event, when you are conversing with anyone in the courtroom or the courthouse complex, always use a pleasant tone of voice and be absolutely certain to use appropriate language. One should be particularly wary of making statements in rest rooms where the view of persons may be somewhat hidden. Harsh angry hostile comments containing expletives or revealing statements have no place in court or where they can be easily overheard by a judge, potential witness, juror, opposing counsel or staff, or court personnel. There is a tremendous risk that the conversation will be reported to others with resulting damage to your case.

5. Communicating with your Attorney

If court is not in session and you need to talk with your attorney, advise him that you need to do so and converse with him in a manner which will assure the privacy of the conversation.

If your attorney is engaged in a trial, you simply cannot communicate with him verbally. It is impossible for an attorney to follow the evidence and court’s rulings, and talk and/or listen effectively at the same time. You should have a note pad and pen in front of you at all times during the trial and make notes about matters which you need to discuss with your attorney at the appropriate time. If your message relates to the ongoing testimony, write the message and very inoffensively pass the note to your attorney for his disposition as he sees fit. If your attorney chooses at that moment not to use your written question, information, or suggestion, wait until there is a recess to discuss the matter with him.

Do not punch your attorney to get his attention. Do not start whispering to him about the witness, the testimony, or a question to be asked. Your attorney needs to keep his undivided attention on the matters before him and you should not interfere with that concentration. However, that does not mean that a helpful note placed before him cannot be useful and constructive.

At the conclusion of the day’s testimony, be sure that all notes you and your attorney have exchanged are in either your possession or that of your attorney. Do not leave them on counsel table nor put them in the courtroom wastebasket for possible pilfering and review by the opposition.

C. Preliminary Trial Matters

Most preliminary or pretrial matters are heard before the trial of the case on the merits. However, upon occasion there are preliminary issues which have to be resolved on the first day before the commencement of the trial such as the ruling upon a law issue, the failure of a witness under subpoena to appear, the exchange of some documentary information, or the like. These matters are generally handled by the attorneys and judge, and your participation is limited except perhaps for your sitting at counsel table, awaiting the outcome.

1. Swearing in of Witnesses

At the beginning of the trial proceeding commonly the court will ask all witnesses to rise, raise their right hand, and take the witness oath. The court endeavors to try to have all the witnesses subpoenaed sworn in at one time to avoid having to repeat the swearing in process with each witness. Since you will be a witness you will rise, raise your hand and take the oath at that time.

The oath that will be administered will probably be, “Do you solemnly swear (or affirm) that the testimony you are about to give in the case pending before this court will be the truth, the whole truth and nothing but the truth, so help you God?” If for any religious or moral reason you have any compunction about taking this oath, you need to address the problem with your attorney or a staff member before you get to court.

2. Invoking the Rule

At any point in the trial, but generally before the first witness testifies, either attorney may announce to the court that he is requesting “the Rule be invoked.” The judge will then instruct all witnesses, except the parties, to leave the courtroom, stand outside the hearing of any of the proceedings, and not discuss their testimony with anyone, except the attorneys involved. The failure of a witness to comply with the court’s instructions can result in the witness being held in contempt of court, fined and/or becoming unable to testify.

Once the rule has been invoked, you must be certain to abide by the rule as well. You are not to discuss your testimony or the testimony of any other witnesses with any other person who may testify. You are not free to discuss testimony after that particular witness has testified, as the rule endures throughout the trial of the case. If you violate the rule, valuable testimony for your case may be excluded during the trial.

3. Attendance of Observers/Family or Friends

A trial is a public hearing and although spectators are allowed, generally there are very few public observers during a divorce trial. As a consequence, other than the court personnel, attorneys and parties to the divorce action, you will probably not have many people listening to your case. This is particularly true if your case runs into the afternoon or lasts more than one day.

If you desire having a family member, friend or member of a support group present, the person you select should not be a potential witness because since the rule is generally invoked, that person will be required to wait outside the courtroom. Further, many times when an attorney sees a supporter, he will ask the judge to swear the person in for the sole purpose of expelling the friend from the courtroom during the trial. On the other hand, attorneys sometimes agree that friends/supporters may remain in the courtroom if they are not witnesses.

By all means avoid asking your lover (significant other) to the courtroom for the trial of your divorce case. Also, do not have your minor children accompany you to trial.

4. Leaving the Courtroom

If the court is not in session, you may leave and return at will. You may also leave and return if the court is in session on another matter unrelated to you, such as another case, and you are in the spectator section. You leave quietly so as not to disturb or interrupt the proceedings.

However, you cannot leave the courtroom during the trial of your case without permission. Normally, courts take breaks during the conduct of a trial at which time you are free to leave and return to the courtroom at will. If you have a crisis which necessitates your leaving the courtroom, pass a note to your attorney indicating that need and he will seek permission from the court to enable you to leave.

If this is a critical issue with you, obtain guidance on this matter from your attorney before the trial.

5. Length of the Trial

The length of a trial varies from case to case and court to court. Obviously one of the factors is the complexity of issues and evidence involved. Since courts conduct ancillary (interim) hearings and have other professional and administrative duties and responsibilities, all of which take considerable time, another factor is how the court conducts its business. If time is important to you, consult with your attorney or his staff about the probable length of your case.

6. In Chambers Conferences

Upon occasion the judge requests that the attorneys for both sides of a case confer with him in his chambers, which many clients view with great suspicion. If the judge makes such a request, your attorney has no alternative but to join his opposing counsel and the judge. To do otherwise would be offensive and against your interests. What usually transpires during an in chambers conference is an effort by the court to streamline the case, to see if the court can do anything to expedite the case and to resolve scheduling matters which may arise due to the length of the case. The court will endeavor, in this relatively informal atmosphere, to become familiar with the issues, determine how many witnesses may be involved, obtain the attorneys’ estimate of time for the trial of the case, explore any possibility of settlement or stipulations (agreements) of the parties, make sure that all exhibits have been marked and/or exchanged, and ascertain if there are any significant legal issues. If done properly, an early in chambers conference can be very useful in assuring an orderly and trouble free trial. Because of the feeling among the general public that deals are cut in smoke filled back rooms, the court may deal with these issues in a pretrial conference from the bench in view of the clients, but often they are conducted in chambers.

D. Presentation at the Trial

1. Opening Statements

Each attorney is permitted to give an opening statement to the court, with the Petitioner going first. The purpose of the opening statement is to give the court an overview of the issues and the anticipated evidence in support of the party’s position on those issues. The Respondent gives his opening statement second, but has the right to waive presenting his opening statement until the Respondent starts to present his case in chief, or his evidence.

2. Petitioner’s Case in Chief

After the conclusion of opening statements, Petitioner starts the presentation of his or her evidence (Petitioner’s case in chief). The presentation of evidence may be done in a number of ways, but generally it is done by testimony of witnesses. Petitioner’s attorney asks the witness, usually friendly to his client, various questions (direct examination). After Petitioner’s attorney has asked the witness all the questions he desires, Respondent’s attorney is entitled to ask that same witness questions (cross-examination). When Respondent’s attorney concludes, Petitioner’s attorney may ask any further questions he deems appropriate (re-direct examination), and so on until both sides have concluded their questioning. At that point, the witness is excused and the next witness is called and the process is repeated.

3. Testimony

You will be a witness. If you have testified in prior hearings or give deposition testimony, you already have some understanding of the do’s and don’ts of testifying. But if this is your first experience at testifying, you should consider the following suggestions.

The overriding consideration in your testimony is to be truthful. Irrespective of the courtroom dramas on television, the worse thing you can do is lie under oath. If it is proven by the opposing side that you lied, your credibility is destroyed. This is particularly true in a bench trial, where the trier of facts is a judge, who will probably be far less tolerant of lying than perhaps a jury might be. Since you enjoy an absolute communication privilege with your attorney, any damaging information should have been revealed to your attorney long ago and a strategy of how that information is to presented or dealt with will have been addressed.

It is the attorney’s job, not the task of the witness, to get the evidence before the court. The witness’ job is to listen to the question and answer only the question asked. Since you are going to be held to your answer, be sure that you understand the question before you attempt to answer it. Do not guess what the question is. If the question contains a word you do not understand, do not hesitate to ask the attorney to state the question in such a way that you do understand it.

Further, you are not to volunteer information. If the answer is inadequate the attorney will follow up with another clarifying question. Do not speculate or guess at the answer. If you do not know the answer, say so. If the attorney has asked you to answer a question “yes” or “no,” be sure that every assumption or statement in the question is accurate before responding “yes,” otherwise the answer should be “no.”

You may pause a reasonable amount of time to formulate an answer, but long lengthy pauses sometimes give the appearance of evading the truth. You should attempt to be as responsive as possible to avoid this impression. This can generally be accomplished by being as attentive as possible and keeping your concentration. Do not let your mind wander and get distracted by trying to figure out what objectives the attorney is trying to achieve.

Your tone of voice should always be pleasant, polite and calm and your demeanor and mannerisms should appear as relaxed as possible. The volume of your voice, particularly if you are female, should be sufficiently loud so that everyone can hear without straining. Anger does not project well in a courtroom even when it is totally justified, and you are to avoid loss of temper for any reason. You should not be argumentative with the opposing counsel nor “take him on.” He is experienced and you are not and generally you will come out a loser. You are to address opposing counsel formally as “Mr. Jones,” not as “Bill.”

If you are being asked questions by one counsel, and during that questioning or immediately after the question, the other attorney rises or says “Objection,” stop talking immediately as the attorney wants to address the court and is requesting a ruling. Do not rush to answer because you think it is helpful to your cause. Patiently wait for the objection to be lodged and for the court to rule. In that regard, if the opposing attorney is objecting based on “Non-responsive” and the court is sustaining the objection, it means you are volunteering and answering more than the question asked. An example is “Please state your name?” Assume the answer given is “My name is Sally Sue Brown, and I was born in San Antonio,

Texas, in 1955.” The answer in non-responsive after “Brown,” since no one asked where you were born or the year in which you born.

Try to avoid the use of words such as “never” or “always.” These type of words can lead to trouble. It is better to say “rarely” or “most of the time,” or some other words which provides flexibility while remaining truthful.

When you take the stand to testify, do not take any documents or notes with you other than those which your attorney has directed. If you testify from a document, the opposing counsel is entitled to examine that document. Further, if your attorney, not opposing attorney, hands you a document with which you are familiar and asks you to identify the document, do so promptly without reading every line of every page, and causing irritation of everyone as though you had never seen the document before. If opposing counsel tenders you a document, look at it sufficiently to be certain it is a document with which you are familiar and then promptly identify it. That does not mean that you should identify a document with which youhave no familiarity or which may have been altered. What you want to avoid is an unreasonable and unnecessary long delay in time in identifying familiar documents.

When Petitioner’s attorney concludes the presentation of Petitioner’s evidence, Petitioner will rest.

4. Respondent’s Case in Chief

After Petitioner rests his case, Respondent’s attorney moves forward with his case in chief. He may have already put on much of his case through the cross-examination of Petitioner’s witnesses. However, he may have additional witnesses and testimony. The procedure of putting this evidence before the Court is the same as in Petitioner’s case in chief. When Respondent’s attorney concludes the presentation of Respondent’s evidence, Respondent will rest.

If you are Respondent in a divorce action, you may be called during Petitioner’s case in chief, but the rules regarding testifying remain the same.

5. Rebuttal Testimony

After both sides have rested their respective cases, Petitioner is entitled to put on rebuttal testimony, the purpose of which is to rebut any evidence previously unrebutted in Respondent’s case in chief. And, of course, thereafter if need be, Respondent can offer re-rebuttal evidence. If rebuttal and re- rebuttal evidence is presented at all, it is usually very short and limited.

6. Closing Arguments

After the introduction of evidence has been closed, both parties through their attorneys are entitled to make closing statements for the purpose of arguing to the court the evidence introduced and the applicable law as applied to the case.

Procedurally the court allots a certain amount of time for closing arguments. Assuming the court has allotted twenty minutes, Petitioner, who opens or starts, then divides the time between opening and closing. For example, Petitioner’s counsel may announce fifteen minutes to open and five minutes to close. The procedure following is Petitioner argues for fifteen minutes, Respondent argues for twenty minutes, and Petitioner argues for five minutes. The court customarily keeps strict time for closing arguments.

7. The Court’s Decision

After closing argument, the Court will make its decision on all issues which have not previously been agreed upon by the parties. Sometimes the Court will make a ruling immediately after closing arguments, but more often than not, particularly if there has been considerable evidence or testimony or a lengthy trial, the court will take the case under advisement, which means the court wants time to consider and review the evidence and his notes before making a ruling.

The time a case is under advisement varies, but experienced judges understand the need for prompt rulings and attempt to get the court’s order made within days or a few weeks after the conclusion of the case. Usually a case is not under advisement for more than two weeks without some understandable explanation such as other professional commitments of the court, although upon rare occasion it can be considerably longer.

Once the court is prepared to announce its ruling (rendition), a hearing will be set or your attorney will receive the ruling by mail. If there is a hearing, your attendance may or may not be required depending upon the court’s policies and your attorney will advise you if you need to be there.

After the rendition is received, one of the attorneys will prepare an order, containing the provisions of the rendition. Quite often the rendition has also included the name of the attorney the court expects to prepare the order and the date by which it was be prepared and presented to the court (entry date). Between the receipt of rendition and the entry date, attorneys for both parties attempt to resolve the form of the order. If resolution is had, the form of the order is approved and submitted to the court for signature. If resolution cannot be had, any conflicts will be resolved by the court at entry date. Thereafter, the final judgment is revised in accordance with the court’s instructions and signed by the court. This final judgment becomes your Final Decree of Divorce.

F. Conclusion

After you have reviewed these rules and the summary of them attached as Appendix A, if you have any questions, concerns or fears, you should discuss those with your attorney or one of the staff members. Alternatively, you can observe the courtroom and the judge before whom your case is going to be tried during a trial similar to yours. You may find that experience helpful in getting a clear insight as to what to expect during your trial.

Rules Regarding Your Trial And Trial Testimony

APPENDIX A

BE AWARE OF YOUR BEHAVIOR AT ALL TIMES.

SIT IN THE SPECTATOR AREA UNLESS OTHERWISE DIRECTED. DO NOT SIT WITH YOUR SPOUSE IN COURT.

DRESS APPROPRIATELY.

BE PUNCTUAL.

BE ATTENTIVE TO THE PROCEEDINGS.

BE CAREFUL OF YOUR BODY LANGUAGE.

ADVISE YOUR ATTORNEY OF ANY MEDICATION YOU NEED TO TAKE.

DO NOT READ IN THE COURTROOM WHILE COURT IS IN SESSION.

BE SURE YOUR BEEPER OR MOBILE PHONE IS TURNED OFF IN THE COURTROOM.

DO NOT VIOLATE ANY COURT RULES ABOUT SMOKING, GUM CHEWING, OR EATING.

DO NOT TAKE ANY WEAPONS TO THE COURTHOUSE AREA.

RISE WHEN RESPONDING TO THE COURT OR WHEN THE JUDGE ENTERS THE COURTROOM. DO NOT ADDRESS THE JUDGE DIRECTLY, ONLY RESPOND.

KEEP THE VOLUME OF YOUR VOICE LOUD ENOUGH SO EVERYONE CAN HEAR.

OTHER THAN SOCIAL AMENITIES, DO NOT TALK WITH OPPOSING COUNSEL OR YOUR SPOUSE.

ALWAYS USE A PLEASANT TONE OF VOICE. UNDER NO CIRCUMSTANCES USE PROFANITY OR VULGAR LANGUAGE. BE WARY OF MAKING STATEMENTS OR COMMENTS IN REST ROOMS OR IN ANY OTHER PLACES WHERE THEY MAY BE OVERHEARD.

ALWAYS BE RESPECTFUL.

WHEN TALKING WITH YOUR ATTORNEY, ATTEMPT TO ASSURE PRIVACY OF THE CONVERSATION.

DURING THE TRIAL DO NOT PUNCH, WHISPER TO OR DISTRACT YOUR ATTORNEY.COMMUNICATE WITH YOUR ATTORNEY BY WRITING.

REMOVE ALL NOTES FROM THE COURTROOM EACH DAY.

DO NOT CREATE A SCENE OVER THE WORDING OF THE WITNESS OATH.

IF THE RULE HAS BEEN INVOKED, DO NOT VIOLATE IT.

DO NOT ARRANGE FOR YOUR LOVER OR MINOR CHILDRENTO ATTEND TRIAL AS SPECTATORS.

DURING THE TRIAL DO NOT LEAVE THE COURTROOM WITHOUT PERMISSION.

DO NOT BE SUSPICIOUS OF IN CHAMBERS CONFERENCES.

DURING YOUR TESTIMONY, ALWAYS BE TRUTHFUL.

LISTEN TO THE QUESTION AND ANSWER ONLY THE QUESTION. UNDERSTAND THE QUESTION BEFORE ANSWERING. BE SURE YOU UNDERSTAND THE WORDS USED IN THE QUESTION. DO NOT SPECULATE OR GUESS AT AN ANSWER.

DO NOT VOLUNTEER INFORMATION.

TRY TO AVOID LONG LENGTHY PAUSES DURING YOUR TESTIMONY.

KEEP YOUR CONCENTRATION WHILE TESTIFYING.

DO NOT LOSE YOUR TEMPER.

REMAIN POLITE AND CALM DURING YOUR TESTIMONY.

DO NOT BE ARGUMENTATIVE WITH OPPOSING COUNSEL.

ADDRESS COUNSEL FORMALLY AND NOT BY FIRST NAMES.

DO NOT TRY TO RUSH YOUR ANSWER IN OVER AN OBJECTION. WAIT PATIENTLY FOR OBJECTIONS TO BE RULED UPON.

AVOID THE USE OF WORDS SUCH AS “NEVER” AND “ALWAYS.”

DO NOT TAKE NOTES TO THE WITNESS STAND WITHOUT PERMISSION OF YOUR ATTORNEY.