How to Succeed During a Cross-Examination

In an evidentiary hearing or trial, each party has the opportunity to present witnesses.  Each witness will receive direct examination by the attorney who called him or her, cross examination by the opposing counsel, and then a redirect examination again by the attorney who called him or her.  Clients are apprehensive about cross examination, as they should be, since it is a storm of questions from a hostile interrogator who is trying to trap you in a lie (legally known as impeachment).  Here are tips on how to succeed during cross-examination:

1) The Golden Rule—When you are in doubt, say “I don’t know.”  If you are concerned that your memory is fuzzy, say “I don’t know” or “I don’t remember.”  This makes it hard for opposing counsel to catch you in a lie.

2) Stay calm and don’t show anger.  The judge is paying attention to your answers as well as your demeanor.  If you feel yourself getting heated, take a deep breath and count to five before answering each question.

3) Although the witness gets interrogated, the witness does not have a right to ask questions back to the hostile attorney.  You can ask clarifying questions, but you cannot ask substantive questions.  Instead, you should rely on your own attorney to be sharp enough to return to such topics on redirect examination.

4) If opposing counsel asks a yes/no questions, you need to give a yes/no answer.  If you say anything more, the opposing counsel will move to strike your answer as non-responsive. 

5) If you feel intimidated by the opposing party, it is okay to not look them in the eye.  Instead, make eye contact with the judge or your counsel.

6) It is okay to ask for a break if you’re feeling stressed or emotional.

7) It is okay to cry on the stand.  This is why family law courtroom clerks always have tissues on hand.

8) Ask your counsel to prep you by role-playing a hostile cross-examination.  This will desensitize you to the uncomfortable situation of getting interrogated by an unfriendly opponent.

9) Do not answer if you don’t understand the question.  Instead, ask for clarification. 

10) When an attorney stands up to object, you need to stop speaking immediately.  You cannot resume your testimony until the judge rules on the objection.  The judge will either deny or sustain it. 

11) You can only speak when asked a question.

12) The judge might interrupt opposing counsel and begin asking you questions herself.  This is common practice and should not worry you.

Divorce in the Facebook Era

Since Facebook has become a constant in Americans’ lives in the past decade, it should be no surprise that Facebook is also a constant in Americans’ divorces.  Every now and then I’ll hear about a case where the client discovered their spouse’s infidelity via Facebook, which triggered the divorce.  Mostly, however, Facebook is useful once the divorce proceeding has begun.

Child Support
Child Support is based on a formula, which requires the accurate identification of each party’s weekly income.   In the best scenarios, parties are forthcoming with their tax returns and pay stubs, and it is not difficult to accurately determine weekly income.  In challenging scenarios, parties are obtuse, do not file taxes, and allege they have no income.

Imagine a situation where Mom has not filed her taxes in the past four years.  She alleges she is unemployed due to a disability and unable to work.  Yet, on Facebook, there are multiple pictures of Mom at her sister’s daycare center, helping supervise the children and care for them.  These pictures can help Dad prove that Mom is employed under the table by her family.  Dad will then obtain a recalculation of child support based on Mom’s unreported earnings and the Court might sanction Mom.

Or consider a case where Dad stops paying for the life insurance policy on which the children are the beneficiaries because he alleges the economy has hit him hard.  Then, Mom finds Facebook pictures or status updates from his recent vacation to Aruba.  The Court is going to want to know how he was able to afford this vacation if he is unable to maintain his life insurance policy.

I’ve seen situations where the parties receive an individually-tailored custody arrangement.  For example, there might be a case where Dad receives weekend visitation as long as his brother, who is an acknowledged drug abuser, is not present.  As you can imagine, Dad will be held in contempt if Mom presents Facebook photos of the children hanging out with Dad and Uncle over the weekend.  Dad will also likely lose his unsupervised weekend visitation. 

Courts determine custodial arrangements based on the best interests of the child, and health and hygiene are factored into that analysis.  Let’s say Mom throws a party at her house, and her friends post numerous photos of the party on Facebook.  In the photos, one can see pictures into the children’s room, in which there is water leaking from a pipe, mold growing on the ceiling, and perishable food strewn about.  If the opposing party presents these Facebook photos, it is likely that the custodial arrangement will be reconsidered.

Finally, almost all judges emphasize the importance of not bashing one’s ex in front of the children.  Nowadays, this extends to Facebook.  It is crucial that you do not badmouth your ex anywhere your child can hear or read. 

Claiming Children on Your Taxes

I’m often puzzled by how much time clients spend fighting over which spouse gets to claim the children on their post-divorce taxes.  While a Separation Agreement should not specify who files as Head of Household, a Separation Agreement may specify who claims the children as dependents.  Many clients seem to believe that claiming a child will reap them significant financial award.  While clients may be correct that claiming a child impacts tax credits, claiming a child may not provide quite the financial windfall the client is anticipating.  Accordingly, I advise my clients to contact their CPA before negotiations to determine how much money claiming a dependent really awards them.  Clients might be surprised to learn that it’s less than a $1,000.00.  In light of that number, it doesn’t make sense to argue for hours over it in an expensive mediation.

I also advise my clients to think creatively about solutions.  If there are two children, perhaps each parent will claim one child.  Or, if there is only one child, perhaps one parent can claim on even years and the other parent can claim on odd years.

As I’ve stated previously on this blog, it’s crucial to enter negotiations informed and prepared.  Prepare yourself on this topic by asking your CPA for the true value of claiming your child(ren).  You might be surprised by his or her answer.   And, if you don’t have a personal accountant, now is the time to secure someone.  Look for someone like Susan Miller at Aurora Financial Advisors or Marc Bello at Edelstein and Company, both of whom are experienced in divorce finances. 

You’ve Been Served: Understanding Service and Its Meaning

Clients report that being served with a divorce summons is one of the most upsetting stages of divorce.  In Massachusetts, the service must be in-hand service, which means that the service processor cannot leave it for you at your residence.  Instead, the sheriff or constable must find you at your house, at your work, or potentially at a relative’s friends and serve it to you personally.  Your neighbors, colleagues, and relatives might witness the service, which might cause humiliation, concern, and anger. 

It is important for clients to realize that service is not necessarily a scary thing.  It is required by law, and thus you should not understand it as one more example of your spouse’s insensitivity.  Your spouse is merely following the legal requirements in order to initiate the divorce proceeding. 

Many clients are alarmed that their spouse initiated the proceeding, rendering the spouse the plaintiff.  Generally, this should not be a point of worry.  Unlike a criminal proceeding, where only the defendant can go to jail, in a divorce it is not necessarily bad to be the defendant.  You should speak to your attorney about whether or not you want to file a counter-complaint, in which you can identify your own grounds for the divorce.  You should also strategize with your attorney about how to use your position as the defendant to help you present evidence at trial, since the plaintiff introduces his or her case before the defendant.