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Credibility, preparation important in family law cases: Joseph

Maintaining credibility and preparing your client for questioning — whether as part of the pre-trial process or at trial — is essential to the success of a case, Toronto family lawyer Gary Joseph writes in the Ontario Family Law Reporter.

“In family law proceedings, credibility may be the single most precious resource a litigant can have or squander. Credibility often determines family law disputes,” says Joseph, managing partner with MacDonald & Partners LLP. “Once a party loses their credibility in a family law proceeding, it is very hard for that party to rehabilitate it in the eyes of the court.”

He says that interim motions in family law are normally determined on affidavit evidence, and credibility can be challenged if a litigant’s assertions are not supported by fact, or by showing the story lacks supporting details and evidence.

However, Joseph writes that the exchange of affidavits “often leaves a court struggling to find the reliable story in a sea of claims and counterclaims” which is why questioning on a motion, in discovery or at trial “is the ultimate test of credibility.” At trial, of course, questioning of witnesses is essential to assisting the trier of fact in unpacking the reality of the case.

“The family law litigant will either withstand questioning with one’s overall or specific credibility, more or less, intact or have it decimated by opposing counsel,” he writes. “Thus, preparing for questioning may be the single most important task in a family law case. It is incumbent upon the prudent family law lawyer to seriously and studiously prepare to have his or her client questioned.”

When preparing your client, it is fundamental to “explain what questioning is,” Joseph writes.

“Most clients will not understand that every written word in any affidavit and family law financial statement they have prepared in the proceeding may be put to them at their questioning,” he says. “Instruct the client to read their pleadings, affidavits, and financial statements carefully before attending questioning.”

Joseph says to remind your client that the statements filed by them is evidence under oath and the opposing lawyer has the right “to test the details provided by them in those documents, through questioning.”

“Explain that the other lawyer can question them on anything contained in the affidavit and/or financial statement and that they should be prepared to provide supporting documentation for anything which requires it,” he says.

Joseph writes that the client has to know why they are being questioned and how it works.

“A lawyer should explain to the client the process on the day of questioning in the simplest but most comprehensible way possible,” he says. “Tell the client he will be asked questions by the other lawyer, and all questions and answers will be recorded by an official reporter. Do not assume they know any of this in advance.”

Meeting with a client before a questioning session is essential, Joseph notes.

“Your client only likely sees his or her side of the story, and likely has no idea that another side exists,” he says. “This is human nature, and the lawyer has a unique opportunity to disabuse the client of any complacency by subjecting their client to a withering mock cross-examination in advance.”

Joseph says the meeting doesn’t have to be long but “should focus on the most vulnerable issues in their case.”

“Since we do this for a living, this is a fantastic opportunity to give your client a taste of what they will be asked by opposing counsel, and the tenor of the questions,” he says. “Your client should not be discovering at questioning that he or she will be asked unpleasant questions. Clients should be ready to face hard questions in advance.”

Telling the truth is vital, Joseph emphasizes.

“The truth during a questioning should never really hurt your client’s case,” he writes. “Lawyers may explain away the truth, but lawyers cannot explain their clients’ lies or concealment of the truth, which will, in turn, destroy their credibility. Repeat to them that they should answer truthfully.”

Tell your client to listen and answer only the question that is asked, being careful to take their time “rather than blurting out answers quickly without thought,” Joseph says.

He adds that clients should be reminded to remain calm and in control during questioning.

“It is sometimes the intention of an examining lawyer to get a party excited during the testimony hoping he or she will say things which will be harmful to their case and used later,” Joseph says. “Communicate to your client that, under no circumstances should they argue with the other lawyer.”

Clients should be advised to respond to the questions in the same tone and manner that they would use in answering their own lawyer’s questions, and to ask for a break if they are losing focus, Joseph says.

He says there is a large amount of information that may be too much for a client to process at a meeting, so providing written instructions can be helpful.

“Finally, stress the need, as always, to tell the truth,” Joseph says.

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