Hold a meeting of witnesses a few days before trial.

Posted July 29th, 2016.

Categories: Custody Tips, Family Law.

witnesses mark guralnick

Child custody trials are usually dominated by the testimony of witnesses. Family members, friends and neighbors, teachers, counselors, church leaders and community members may all be called to the witness stand in a contested case. Unlike civil cases which may rely heavily on documentary evidence or criminal cases which may rely on tangible real evidence (the gun or the drugs), a custody case is usually driven by testimonial evidence from the witnesses.

Unfortunately, too many parents and their lawyers make little effort to prepare their witnesses to trial. It is not sufficient to call a witness on the phone, chat about the case, and then tell them when to report to court. Witnesses may, in fact, have different perceptions of what they should say. They may not know what they’re going to be asked, and they may not realize that if they testify on your behalf, they’ll be subject to cross-examination by the attorney representing the other parent.

The best practice is to coordinate your witness’ testimony. Hold a meeting of witnesses, and schedule a small gathering at your home. Make sure everybody’s “on the same page.” Be careful: While you have every right to communicate with your witnesses prior to a trial, they are not protected by a confidentiality privilege (as in the attorney-client privilege or the doctor-patient privilege), and neither are you. If you make disclosures to your witnesses, they can be cross-examined on what you told them (or on what you told them to say). The very fact that you held a meeting of witnesses can be raised in court. But again, nothing is unlawful about meeting with your witnesses. If asked about the meeting, you or the witnesses can testify that, indeed, “we all met to share our perceptions and insights and to determine what information might assist the court in reaching the proper decision.”

Coordinating witness testimony in a meeting or otherwise can be very fruitful. For one thing, if somebody has a different recollection of the facts surrounding a particular situation, you can choose not to call that person as a witness. You may also observe that a witness is far too chatty and needs to be reminded to answer the question only. Sometimes, the unusual demeanor or appearance of a particular witness becomes more blatant when surrounded by others.

A case can be won or lost on the quality of witness testimony (not merely on the quantity of witnesses). You will want to ensure that the testimony given by the witnesses is useful and relevant, not redundant or immaterial. You don’t need to call five cousins to each testify that you’re a good parent. Each witness should have a different relationship with you and the children and should be able to draw on his or her specific knowledge concerning that relationship and prior experience.

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