Odd skirmishes in the battle over credibility

Posted Sunday, February 1st, 2015 by Gregory Forman
Filed under Geography:, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I recently completed a lengthy custody and divorce trial in which the judge asked both attorneys to draft proposed orders. This required us to consider the factual findings we wanted this judge to make. Given that issues of the parties’ credibility would impact all the contested issues, it required a consideration what is meant by a party’s credibility.

Now, obviously, truthfulness is an important element of credibility. A party who routinely hid or provided false information or provided false testimony is not credible in the most obvious meaning of the term. However there are other ways one can be not credible short of outright deceit. Considering these ways can help an attorney shape trial preparation and testimony.

One rarely considered way in which credibility can be accessed is to contrast how a witness answers questions on direct examination versus cross examination. A credible witness exhibits little difference in tone or demeanor. Answer tough questions during cross examination openly and honestly lends credibility to one’s answers to the easy questions during direct examination. When a witness has little trouble answering questions on direct but is evasive and argumentative on cross, the court should reasonably infer that this witness is not forthcoming–hence not credible.

Another rarely considered way in which credibility can be assessed is whether a party can acknowledge his or her own weaknesses and the other party’s strengths. The family court sees a lot of flawed human beings but it never sees angels and rarely sees devils. A litigant who can acknowledge his or her own failings and the other party’s strengths on direct examination will appear much more credible when highlighting his or her strengths and the other party’s weaknesses.

This doesn’t require a litigant to don a hair shirt and crown of thorns. However, in a custody case, it is useful to have one’s client acknowledge a few of his or her own parenting problems and to acknowledge all of the other parent’s strengths. In a divorce case it is useful to have one’s client discuss his or her own contribution(s) to the marital breakdown. The client’s weaknesses and the opposing party’s strengths are likely to be elicited during cross examination and during the direct examination of the opposing party and that party’s witnesses. Having one’s own client acknowledge these issues during the client’s direct examination doesn’t weaken that client’s case but, instead, bolsters that client’s credibility.

Thinking about these issues before trial insures testimony that will bolster credibility at trial. An attorney should train the client to answer questions on cross examination directly and accurately. The attorney should explain to the client that cross examination will result in testimony harmful to the case but that not all testimony needs to be helpful for the client to prevail. The client also needs to understand that it is better to be thought imperfect but honest than as imperfect and dishonest. A client who can answer the other side’s questions as openly as one’s own questions is helping the case by establishing credibility.

Further one should develop client testimony that acknowledges that client’s faults and the opposing party’s strengths. Again, the client needs to be reminded that not all testimony needs to be helpful for the client to prevail. Having some testimony from the client on his or her weaknesses and the opposing party’s strengths bolsters that client’s credibility.

Family court judges do not expect to encounter perfect people. Yet too many litigants attempt to portray themselves as flawless and the other party as horribly flawed. This does not convince a factfinder of the party’s perfection but merely of his or her lack or credibility and insight. In the case at issue, my client testified unevasively on cross examination and acknowledged her spouse’s strengths on direct. In contrast, her spouse testified evasively on cross examination and failed to acknowledge my client’s strengths on direct. In drafting credibility determinations, I asked the court to use this testimony to find my client credible and the opposing party uncredible. The court adopted most of these findings, and strong credibility findings helped lead to a favorable ruling.

Credibility means more than not providing false information and testimony. It means testifying in a manner that makes one believable. Training a client to be unevasive on cross examination and developing testimony that acknowledges the client’s weaknesses and the opposing party’s strengths may seem counterintuitive–as it leads to testimony that does not factually help one’s case. But this evidence is going to be established through other testimony and it bolsters a client’s credibility when it comes from the client.