Preparing for Testimony in a FRO Hearing

Most of what trial lawyers do is learned from a collection of other sources after law school ends and we are already in practice. Continuing education centered around trial advocacy is extremely helpful. Having the luxury of working for and with experienced advocates is invaluable. Often, simply walking into any courtroom on any given day and watching whatever trial happens to be occurring can lead to some pearls for later use. Of course, there is no substitute for actually trying cases. Any advocate worth his or her salt will tell you that something occurs in every trial that they either were not expecting, or which had never occurred before.

Ultimately, a trial is a trial. From the advocate’s standpoint, all the same trial elements in a complex murder trial exist in a domestic violence case where the attorney is tasked with either prosecuting or defending the claim of domestic violence. Consider for example, witness preparation. Most restraining order hearings come down to “he said/she said”. Quite often, in the intimate relationships that form the basis of domestic violence cases, only the parties are present. In this regard, the testimony of the witnesses is of paramount importance. As a result, restraining order hearings are often won or lost at the testimony preparation phase.

Perhaps the most important thing to consider when preparing a witness to testify is to tell the truth. The truth has a way of sounding, . . . well, for lack of a better word . . . truthful. Equivocation of a small fact can only lead to overall credibility issues, and the factfinder’s belief that the witness is not willing to tell the truth. Nothing can assure a defeat in the courtroom as surely as that could. As a witness, particularly at an FRO hearing, you must not equivocate.

Second, you would be surprised by how often in courtrooms all over this country lay witnesses will attempt to utilize language either not familiar to the factfinder or, worse, not familiar to the witness himself. This will trip up the witness every time. You never want to hear a witness at a domestic violence hearing say that she was “struck in the right orbital bone by the defendant causing a contusion due to the breaking of capillaries in the facial region,” when “my boyfriend punched me in the eye and gave me a black eye” says it so much better.

Another fine example of witness preparation in this scene is not just about the use of simple language but also about using a minimum of words. The more words a witness uses, the more chances for your adversary to latch on to something and you never know what might stick. I recall a mentor who used to explain it to clients with this simple adage when preparing them to testify, “If I ask you ‘what time is it?’ don’t tell me how to build a clock.”

Perhaps the most important lesson is in being prepared even for when you are not testifying.

Surely, a client in a domestic violence hearing, listening to someone they once loved, or in many instances, may still love, making terrible claims about him or her, impugning his or her character in a courtroom to strangers is sure to evoke raw emotions.

As a witness in a domestic violence case, you simply must be prepared to hear the worst possible facts about yourself (most of which will be embellished) and you must take it in stride. Rest assured, the judge is watching you, specifically for your reaction.

As indicated, there is no substitute for experience and this was seen firsthand in a recent restraining order hearing handled by this firm—a clear example of how a witness was not prepared to behave in the courtroom even when he was not testifying. As the plaintiff was being brought through a video depicting all of the defendant’s wrongdoing, while at all times ignoring all of my prior advice about equivocation, use of plain language and verbosity (let’s just say we all learned how to build a clock that day in court) it was the defendant’s reaction to a very simple question and answer by the plaintiff that turned the whole case on its ear. As the defendant in the video yelled, “You know what you did!” while forcing his way into the plaintiff’s home, the question was posed to the plaintiff, “what is he referring to?” The plaintiff’s response was (as I had learned during witness preparation would be) “I have no idea.” At that exact moment, the defendant erupted at counsel table, “[EXPLETIVE] LIAR!” Case Closed.

If the defendant was willing to react that way to a simple answer in the middle of the courtroom, then, without even testifying the defendant confirmed all that the plaintiff had claimed about his propensity for violence and the need for the protection of the court, despite the plaintiff’s verbose and equivocal testimony. The judge went so far as to specifically cite to this outburst as the basis for his opinion to grant the FRO in a case that could have gone either way.

The clear lesson here is as a litigant in a domestic violence hearing you must be not only prepared to testify honestly, clearly, and concisely, you must be prepared for what amounts to non-verbal testimony in how you react to other’s testimony. If you lose sight of this, the chances of that restraining order being granted against you or you not obtaining the necessary protection you require will be lost.

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