Ashley Donald – March 2019
We know that most family law matters settle outside the court process, or during a settlement conference. The small percentage of matters that do not settle are heard before a Judge at a hearing (also called a trial).
In most hearings at the Family Division Court in Halifax, evidence is provided to the Judge by way of affidavit, which is a sworn statement you prepare outlining the facts on which you want the Judge to rely. Affidavits are usually provided to the court and the other party well in advance of the hearing date.
The other party’s lawyer, or the other party if they are self-represented, is entitled to cross-examine you on your affidavit and other sworn documents you provide to the court.
After the hearing, the Judge is tasked with making a decision based on the facts in evidence and the Judge’s findings on credibility.
Credibility refers to how reliable and trustworthy the party giving evidence appears to be. The Judge makes a finding of credibility based on the accuracy of the documents you enter into evidence, and the trustworthiness of the facts you present. The Judge also listens closely to your evidence and assesses your demeanor and the way you answer questions on cross-examination.
Being cross-examined is nerve-wrecking business. It is normal to be nervous, anxious or apprehensive. To ensure you are putting your best foot forward, I provide all my clients with these tips when preparing for cross-examination (in no particular order):
- Be truthful (obviously). You swear (or affirm) to be honest and you must do so. It is okay to admit an error or mistake. Do not try to predict where the cross-examination is going as this may cause you to overthink your responses.
- Answer only the question you are being asked. Usually, a yes or no response will be enough. Listen carefully to the question and respond as clearly and succinctly as possible. Do not provide details or information you are not asked. Do not ramble. Once you have answered the question, stop talking.
- Be polite, be helpful. It may be easy to feel irritated with the other party or their lawyer. Try to remember you are answering questions to help the Judge understand your position and evidence.
- Do not fill silence. During cross-examination, lawyers will sometimes pause to bait you into talking more. Be comfortable with silence. Wait politely until the lawyer asks his or her next question.
- Do not argue. As a witness, it is not your job to argue your position or convince the Judge. Leave that to your lawyer. If you disagree with a statement the other lawyer has put to you, you can say you disagree. Do not try to argue a point. This only looks poorly on you, as you will appear confrontational and argumentative. Do not lose your temper.
- Answer once the question is finished. Try not to jump the gun. Wait until the cross-examiner is fully finished his or her question before you answer. Do not interrupt them. If you do not hear the question clearly, or you do not understand the question, you can ask that the question be repeated or clarified.
- If your lawyer stands, stop talking. If you are asked a question your lawyer does not think you should answer, he or she will stand and wait for the Judge to acknowledge their objection. If your lawyer stands, stop talking and do not answer the question until and unless the judge directs you to do so.
It is also helpful to review your evidence in advance of the hearing. Your lawyer will work with you to discuss likely questions you will be asked. While it is always good to be prepared, do not memorize your evidence or answers.
If you have questions about how to prepare for giving evidence at a hearing, or if you would like more information about the court process, reach out to offices and a lawyer or staff member would be happy to meet with you.