You’ve been going through litigation. Hopefully, you’ve hired an attorney. You may have been through discovery. Your attorney has prepped you for your hearing. You and your attorney know what your goals are and your attorney has let you know what is reasonable. Suddenly, you’re on the stand and you’re being asked pointed questions. Remember, you are not the bad guy. (And if you are the bad guy or are an unreasonable person- this post isn’t for you).
This is where I see a lot of my nice clients falter, particularly people with highly agreeable personalities in divorces or custody battles dealing with an obstructive or aggressive adverse party. If a case is teed up properly, an attorney assessed the client’s position as reasonable, and nothing has happened so far in the case that has unexpectedly torn that position to shreds, it is imperative that party POLITELY, but firmly stands their ground. If the position is that the child’s other parent is addicted to drugs, there’s evidence to back it up, the party wants supervised visitation, and the attorney believes that is reasonable under the circumstances, now is the not the time to go soft and tell the judge he or she doesn’t know what they are asking the court to do.
One tactic on cross-examination is for the other party’s attorney to get concessions from a party. “Don’t you think that Dad should be able to see his children? (even though you know he has a substance abuse problem)” “Don’t you think that you should help contribute to the mortgage (even though you have an infant at home and your husband just left you and you can’t possibly afford the mortgage he left you with)”? These can be traps for the reasonable client who wants to seem like a nice guy or gal.
The bottom line is that 99% of the time, the judge will not give anyone more than they ask for. You can prepare your case and have it all going well, but if you get caught up in the moment on the stand trying to seem reasonable by asking for less than what you want (and your attorney has said is reasonable0, you will likely not get what you want. If a party cannot afford the mortgage payment during a pending divorce, the moment they get on the stand under cross examination is not the moment for them to start speculating about how they might be able to pay it. If the position is that a spouse is a drug-abuser and shouldn’t be around the children until he sobers up, that’s not the moment to start talking about how you think an exception should be made for his camping trip next week.
Your attorney should discuss with you what is a reasonable expectation. If you have gotten the green light that you are being reasonable, do not send your entire case down the drain by trying to seem nice when you are on the stand on under cross-examination. You must be polite, you must seem non-evasive, you must maintain your composure, you must not lash out, but you also must not compromise your position. The judge will not rescue you from concessions you make in this moment.