If settlement efforts fail and your case proceeds to trial, it will be critical to convince the Court that your testimony is “credible,” which means believable, trustworthy, or reliable. In divorce and family law cases, there is often little or no direct evidence to prove or disprove the truth of certain claims. For example, domestic violence tends to occur (intentionally) behind closed doors and outside the view of any witnesses. Unless the victim suffered physical abuse and managed to photograph the injuries, the Court is likely to decide the resulting factual dispute based on credibility alone. The same is true in divorce cases. For example, Spouse A might claim that Spouse B dissipated marital assets by sending money to his family members in another country, while Spouse B might respond that Spouse A was aware of and consented to supporting a financially struggling parent. The importance of credibility cannot be overstated.
So, what makes a person credible in the eyes of the Court? It is well-established in virtually every jurisdiction of the United States that personally observing a witness’s demeanor in the courtroom is critical to evaluating his or her credibility. Common knowledge tells us that a liar might hesitate, stammer, fidget, refuse to meet your gaze, or shift their eyes. On the other hand, someone telling the truth will stand tall, speak in a clear and confident tone of voice, sit still, and answer questions directly. Recent scientific research, however, has sharply questioned our ability to evaluate credibility based on visual cues derived from a witness’s demeanor. A skilled liar is often difficult or impossible to differentiate from a person who is telling the truth. For example, a 2003 meta-analysis of 116 psychology studies concluded that nonverbal cues are for the most part unrelated to deception (Bella M. DePaulo et al., Cues to Deception, 129 Psych. Bulletin 74 (Jan. 2003)). A subsequent 2006 meta-analysis of studies on individuals’ ability to detect deceit found that paying close attention to visual cues may paradoxically make it more difficult to detect lies (Charles F. Bond & Bella M. DePaulo, Accuracy of Deception Judgments, 10 Personality and Soc. Psych. Rev. 214 (2006)).
The Court’s credibility determinations are even more important because they are entitled to deference on appeal. New Jersey’s Appellate Division and Supreme Court have repeatedly held that deference to the Trial Court’s factual findings “is especially appropriate when the evidence is largely testimonial and involves questions of credibility.” Cesare v. Cesare, 154 N.J. 394, 412 (1998). Because the Trial Court had the opportunity to see and observe the witnesses’ behavior and to hear them testify, whereas the Appellate Division and Supreme Court will only review written transcripts, the Trial Court is believed to have a better perspective on the truthfulness of witnesses’ testimony.
Fortunately, there are a number of tips and tricks that can be employed to enhance credibility during live testimony:
- STICK TO THE TRUTH & DO NOT BE EVASIVE
This is the most obvious answer. Despite what you may think, neither you nor your ex-spouse is likely to give an Academy Award winning performance on the witness stand. While you might prefer to hire Robert DeNiro or Meryl Streep to testify on your behalf, that will not fly in the Superior Court. In all likelihood, you have never testified in a legal proceeding before. You have never been subject to cross-examination. (Even the process of a deposition is much different from live testimony.) The best method of convincing the Court that you are telling the truth is quite simple: tell the truth. Do not lie. Do not embellish. Do not exaggerate. Even when the answer to a question may be negative for your case, answer honestly and directly. Rely on your attorney to clarify with follow-up questions or on redirect examination.
Of course, the problem is that telling the truth is not always enough, especially if your ex-spouse is a skilled liar and manipulator. In such situations, the remaining tips might prove extremely valuable.
- WEAR A CLEAN, WELL-FITTING, NAVY BLUE OR DARK GREY SUIT
A well-groomed and well-dressed person is likely to be viewed as more credible than someone who is disheveled and unkempt. Every time you appear in Court, it will impact the Court’s perception of who you are as a person. Never show up in shorts and a t-shirt. Whether you are a man or woman, wear a navy blue or dark grey suit. Black should be reserved for weddings and funerals. Similarly, bright colors or loud patterns should be reserved for festive occasions. Notably, I often see clients who try to skate by in business casual attire like slacks and a button-up shirt, but this is not the time to cut corners. Showing up in a clean, well-fitting, dark suit shows respect, indicates that you understand the seriousness of the proceeding, and will inevitably increase your trustworthiness in the eyes of the Court. If you do not own one, then go buy one. Moreover, avoid ostentatious jewelry. (Trying to avoid an alimony obligation? Leave the Rolex at home.) Keep makeup to a minimum, and your hairstyle should be conservative. If needed and the funds are available, retain a style consultant to perfect your look; your physical appearance in Court is that important.
- MAKE EYE CONTACT WITH THE JUDGE
Virtually all divorce trials are “bench trials” rather than “jury trials,” which means that the judge rather than a jury of your peers will be determining credibility and deciding the ultimate issues. Therefore, when testifying, you should do so for an audience of one: the judge. When answering questions, it may be tempting to look down at some documents, to your attorney for reassurance, or to opposing counsel (if opposing counsel asked the question). Resist those temptations. There is only one person in the courtroom that will be deciding the case, and generally, your testimony should be directed to him or her.
- BE STILL, SIT UPRIGHT, AND TESTIFY WITH CONFIDENCE
Unfortunately, you are going to be nervous in Court. Everyone is. It took your attorney years to overcome the inevitable pretrial butterflies. Your heart may be racing. You may feel like fidgeting with a pencil, tapping your toe, or looking around the courtroom. Again, resist those temptations. We have all heard that 80 percent of communication is nonverbal. Whether or not that is true, humans make decisions about the trustworthiness and truthfulness of a person based on nonverbal cues gleaned from his or her behavior. Sit still. Sit upright. Speak in a clear and confident tone without hesitation or stammering. If you manage to do all three, the Court is likely to place a higher degree of trust in your testimony than it would otherwise.
- WATCH YOUR DEMEANOR EVEN WHEN YOU ARE NOT TESTIFYING
Divorce trials are often filled with shocking claims about emotionally charged issues. They can include accusations of substance abuse and domestic violence (both true and false). The witnesses may include close friends and family, and some clients are deeply hurt by the testimony provided. The trial is likely to leave emotional scars that will take years to heal, and it can be difficult not to react. Even so, you must be vigilant about your demeanor even when it is not your turn to testify. The judge is always watching. In a recent trial, the opposing party smiled and laughed as my client testified about suffering domestic violence during their relationship. As expected, the judge did not take kindly to his antics. His behavior during my client’s testimony was specifically cited in making negative credibility determinations. A modicum of self-control might have avoided that outcome. At all times during the case, do your best to remain calm, confident, and respectful. It may very well be the deciding factor between a win and a loss.