One’s credibility is a valuable asset. Don’t squander it.

Posted Saturday, January 29th, 2022 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In the early stages of a family court case, there’s a temptation for litigants to take positions inconsistent with their prior action or words. The pleadings and affidavits filed at or shortly prior to the first temporary hearing are not subject to “confrontation”–the ability of the opposing party to present counter evidence. The goal in pressing misleading or inaccurate claims is to convince a family court judge to grant them the relief they request or deny the other party the relief that party requests. In custody cases these litigants will often make similar claims to the guardian in an attempt to portray themselves as the superior parent.

Such actions can initially be successful. So long as the claim is plausible, a family court judge may have little reason to discount it. Often times such claims themselves can be a roadblock to the other side obtaining relief, such as when a jurisdictional fact (a fact that needs to be established before a court can grant substantive relief) that should not be in dispute is disputed merely to cause delay.

But if such claims are not initially subject to confrontation, ultimately they are. Every family court case that does not result in a settlement ultimately resolves by a family court judge hearing testimony, reviewing evidence, and reaching a decision. Prior statements by the other party–especially statements submitted under oath in order to sway the court at prior hearings–are often the best evidence of duplicity. To the extent one party has submitted affidavits or made claims that are countered by their own words or actions, that party will be seen as dishonest and manipulative.

…And when the trial judge believes a party has been manipulative and dishonest, poor results follow. Credibility impacts every aspect of a judge’s decision making. Parties who are not credible, and specifically are not credible in an attempt to evade the consequences of their actions or manipulate the court into previously granting relief that was not justified or denying relief that was otherwise justified, have forfeited any right to have disputed facts resolved in their favor. Why should the family court believe such parties when their prior allegations are false, misleading, and manipulative?

Further, “[b]ecause [the appellate court] lacks the opportunity for direct observation of witnesses, it should give great deference to the family court’s findings where matters of credibility are involved.” Reiss v. Reiss, 391 S.C. 286, 290, 705 S.E.2d 84, 86 (Ct. App. 2011). On appeal one can overcome adverse factual findings if one can demonstrate the family court made a factual error or simply misweighed the evidence. But findings that a litigant was manipulative or dishonest are almost impossible to overcome.

It is true that few family court cases resolve with a trial and a family court judge making the decision. However this doesn’t mean a strategy of initial dishonesty typically succeeds. Attorneys, knowing that the opposing party has damaged his or her credibility and therefore faces a risk of disaster going to trial, can take more aggressive settlement postures.

In my own practice, knowing that I can show the other party repeatedly lied to the court early in the case allows me much more confidence in pursuing my client’s reasonable goals through negotiation. If the other party refuses to meet my client’s demands, I know I can cross-examine that party about behaviors inconsistent with their allegations and submit evidence and testimony showing the other party submitted false or misleading evidence and manipulated the court.

Further, an attorney’s own credibility with the court–confidence that this attorney will not heedlessly submit inaccurate or misleading evidence that will later cause the court to regret its decision–is an asset carefully developed and easily lost. Some attorneys have this credibility with the court and every one of their clients benefits. Other attorneys lack this credibility and all their clients suffer. I will not squander my hard-earned credibility for a client who wishes for me to push her or her specious claims. Not only is it an affront to my integrity, it is a disservice to my other clients (and future clients).

For these reasons I counsel my own clients against making claims that will not withstand confrontation–even if they are willing to swear to it under oath. My clients (and, more often, prospective clients) frequently perceive this advice as a failure of empathy or a lack of loyalty to their cause. However, for the client, the reward of short term gains rarely outweighs the risk of long term losses. And for me any loss of credibility with the court would be a personal and career disaster. It is better for me to test my clients’ allegations for credibility before they are made in public, under oath, and in an attempt to sway a family court judge.

A litigant’s or attorney’s credibility is a valuable asset. It takes years for an attorney to develop a reputation for credibility. Once squandered it can be impossible to regain. Clients or prospective clients who ask me to press specious claims may perceive their behavior as benign. I find it offensive.