In the witness box: how to be the best client and witness with tips from expert barrister

DEMYSTIFYING WHAT IT MEANS TO BE AT FINAL HEARING AND WHAT TO DO AS A WITNESS ON THE STAND

Few people involved in family law proceedings actually end up in the witness box but when they do, the experiences can be incredibly daunting and unfamiliar. Shedding light on the process and what you can do to prepare helps you to feel more comfortable within the hearing and the possibility of being called to give evidence.

Experienced barrister, Mr Giles Stapleton, of 9 Selborne Chambers, shares his tips and recommendations on being a witness, an ideal client and surviving a day (or several) in a Court hearing with www.DivorceAnswered.com.au.

Briefing the barrister. Your barrister is only as good as the briefing s/he is given before preparing for the hearing by your lawyer. It is crucial that preparation isn’t skimped on and that the process is meticulous and thorough.

Your lawyer should provide all relevant information to your barrister so s/he can prepare, formulate arguments and present the facts of your case in a way that works in your favour.

Mr Stapleton outlines the briefing and preparation process as follows:

1. Your lawyer will present the problem to the barrister with all Court documents outlining the claims being made and the evidence in support of them
2. Your barrister will review the merits of each claim based on the evidence and identify gaps in the evidence that need to be filled for you and will assess the strengths and weaknesses of the other parties’ case
3. Your barrister will discuss your objectives and the likelihood of each of them being achieved and formulate a plan for how to obtain the best possible outcome, while also identifying what obstacles might be faced along the way

Preparing yourself for court. Minimising distractions while at court are a must. If you are there, you need to be able to focus on the task at hand, pay attention and bring any issues, questions or inconsistencies to your legal team’s attention. Mr Stapleton suggests:

1. If you have children, make arrangements for the care or after-school collection so that you aren’t pressured for time
2. Ensure that you have been to the bathroom, eaten well and have fluids (water) with you
3. Be as well rested as possible before court
4. Be familiar with your affidavits submitted for the hearing
5. Turn your phone off or on silent
6. Avoid smiling, laughing, shaking your head, rolling your eyes or sighing loudly (huffing) inside the court room
7. Look at the Judge (make sure you blink and not stare)

The witness stand can be a daunting and confronting place to sit. It is wise to think about these guides:

1. Answer questions honestly
2. Face the Judge when answering questions
3. Keep your answers short – yes or no where possible will suffice
4. If you have to answer an open-ended question or explain something, keep your response as short and as relevant as possible to the question asked
5. Ask for the question to be repeated if you don’t understand
6. Don’t argue or get upset with the barrister while on the stand (this suggests to the Judge that you are vulnerable or perhaps hiding something and the barrister may use it to their advantage)
7. Try not to answer the question you would like to be asked (but haven’t been) or just telling your story – both will annoy the Judge.

Qualities that make up a great witness include:

• A person who is intent on telling the truth in direct response to the questions rather than telling their story in answer to a question that did not ask for that;

• Making concessions that do not reflect favourably on you if that is truthful because then the Judge is more likely to believe you when you tell the truth about something positive for your case

As a client, you can make your barrister’s job easier by:

• Being upfront and honest about unpleasant allegations of the other side so a strategy can be developed to present the truth in the least damaging light

• Being truthful, open and honest including by saying you can’t recall something if that is true, rather than being tempted to make something up to make the story sound better or not as bad

“A successful outcome for you, as the client, may be creating sufficient doubt in the Judge’s mind about the other parties’ unpleasant claims, reducing the impact of the more difficult parts of your own case, exposing lies and deceit of the other party or simply proving your position to be true ,” explains Mr Stapleton.

Ultimately, the end result lies with the Judge and their interpretation of the law and evidence presented. All that you can do is focus on is the evidence and presenting yourself in a clear and honest manner.

Mr Giles Stapleton is a barrister at 9 Selborne Chambers, Sydney. His family law practice is mainly property cases with increasing focus of parties to a marriage against third party creditors and trustees. He acts in both the NSW Supreme Court and Family law Courts throughout Australia. He also accepts difficult parenting briefs and matters. Contact Mr Stapleton on gstapleton@selbornechambers.com.au or 02 9233 5188.

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