Under Oath – Not Under Attack: A practical guide on how to give evidence in the Family Court
min readDespite the popularity of courtroom dramas, nobody wants to find that life starts to imitate art.
For most people facing a family court hearing, it will be the first time they have ever been inside a court room. It can be a daunting place to find oneself. The buildings themselves are often imbued with a sense of gravitas and formality.
So much is unfamiliar. The only familiar face other than your own legal team will be your former partner and, where you may have shared everything together for many years, they will now be seated on the other side of the court, surrounded by their legal team. You are likely to hear your life, emotions, finances, children and future being discussed in abstract by third parties, distilled into statements and assertions, with many of which you strongly disagree.
It is a disorienting experience and it is entirely natural to feel the weight of what is riding on the outcome. This is particularly so at a final hearing, where oral evidence may be required, and where you know the outcome will be determined, perhaps in part, by that very evidence. Whilst you may be more familiar with the court environment by this stage, the stakes could not feel higher.
But it does not need to be overwhelming. Part of a family lawyer’s job is to keep a case out of court entirely but where that isn’t possible, early, calm preparation and guidance can make the experience far less daunting. Your lawyer cannot rehearse your evidence with you, but they can walk you through what to expect. What follows here are some general top tips and dos and don’ts of giving evidence to help make the process feel as manageable and as comfortable as possible.
DO tell the truth
This is the most important thing and is necessary to comply with the oath you will give. If asked a question that you do not know or do not recall, simply say so rather than being tempted to offer something to fill the gap.
DO NOT forget to breathe and stay calm
You are in a situation that is novel, unnatural and intensely personal. Make sure you take the time to pause, breathe and keep as calm as possible. Try not to slip into a defensive or anxious mode; taking a moment to breathe when you need it can help with this. The lawyers, including the Judge, will understand that you are nervous and you will almost certainly settle into a rhythm after a few minutes.
Proceedings in the family court are relatively informal and not as you might expect from similar scenes in TV dramas and films. The Judge will not allow intimidation tactics and most lawyers recognise this is likely to be counter-productive in any event.
DO speak loudly and clearly
It is important that the Judge and others in court can hear you, so speak quite loudly and at a steady pace. Whilst there may be a microphone in front of you if you are giving evidence in person in court (rather than by video-link), that will not usually amplify your voice. The microphone is generally only there to record your voice for transcription.
DO NOT take notes or documents into the witness box
There is no need to do so; you will be provided with and referred to clean copies of all relevant court documents as and when the need may arise.
DO address your responses to the Judge
When a question is being asked, try to look at the person who is asking the question. However, when you answer, it is helpful if you can turn slightly to look at and address your answer to the Judge. This may feel a little unnatural at the outset and is not essential but it is good practice if you can.
Most Judges will not be unduly concerned with how you address them. If you forget, you can take your lead from the barristers in court, but otherwise it should be “Judge”, for a District Judge. A High Court Judge is formally addressed as “My Lord” or “My Lady” and a Circuit Judge is addressed as “Your Honour”.
DO NOT argue the case
There is no need to put forward any argument and it can be counterproductive to do so. The lawyers on your team will argue the case on your behalf.
DO keep your answers short
Try your best to keep your answers short – even as short as ‘yes’ or ‘no’ if appropriate. This is much more likely to result in a clear answer that deals with the question you have been asked.
If a simple ‘yes’ or ‘no’ requires some qualification, you can say so. First, answer the question that has been asked but you could add something like: “The simple answer is ‘yes’, but that must be qualified by the fact that…”
DO NOT try to guess what point the barrister is trying to make
Trying to second guess the point the barrister is trying to make or where you think the questions may be leading and to answer accordingly only risks confusion, overthinking and unnatural responses. Take the question at face value and answer accordingly.
DO correct yourself if you need to
If you reflect on a response and feel you should have expressed it differently or it requires correction, you can make this clear and do so. It is better to get it right the first time, but if you feel an answer was mistaken or incomplete, it is far better to say so than to leave it uncorrected.
DO NOT expect to be able to speak to your lawyers during a break
If you have been sworn in to give evidence, you will not be able to discuss your evidence with your legal team until you have been released from giving evidence. If there is a break for lunch or even overnight, the embargo will apply throughout the period during which you are “under oath” and this will be explained to you in advance.
DO ask for clarification if anything is unclear
If you do not understand a question you should not be embarrassed to say so. If you need an explanation of the point you are being asked about, you should ask. That is far better than presuming and answering a different question.
DO know what to expect
Whilst it can be difficult to predict the way in which a case will proceed and the order in which evidence will be given, the process for each witness is usually fairly predictable.
You will be called to give evidence by your barrister (or the barrister of the party calling you as a witness) and you will be asked to take the oath or affirmation to tell the truth. You will then be asked questions by the barrister who has called you. These will usually be fairly easy, limited questions to confirm your name and address and the contents of the written documents already filed on your behalf in the case. This is called “examination in chief” and can be a useful way to settle into the process.
The other party’s barrister will then ask questions in “cross-examination” and, thereafter, your barrister may have an opportunity for “re-examination” about any point they consider needs to be revisited. The Judge may ask questions at the end, or at any time during the giving of evidence.
If you heed all of these suggestions – perhaps particularly the first two – the process is likely to be a smooth one. You will have put your case as clearly, calmly and honestly as you can and you cannot hope for more than that.
