What you are asking about is called “impeaching” the witness.
There are many ways to impeach a witness. One way is to ask him or her questions to which the answer is already known (and you have independently verifiable proof of it) to see if the witness will answer falsely in response to them. If the witness lies, then you can “impeach” the witness by showing the court the proof of what is true and thus expose the witness as a liar.
But bear this in mind: just because you showed that a witness lied does not necessarily mean the court will not consider the witness’s testimony. I literally had a judge tell me that, despite the fact I impeached the witness in regard to one subject, the judge could tell the difference between when the witness was lying and when the witness was telling the truth. I’m not sure how the judge could perform such a feat, but that’s what he claimed. But even if a judge were not to claim to be a living lie detector, showing that a witness lied does not mean that the court must reject all of the witness’s testimony or refuse to hear anything else the witness may have to say.
What should I do when a family court judge refuses to look at my evidence of abuse because my ex’s lawyer lied about me bringing it to him when I had a witness with me?
What you can or should do depends upon why the judge would not consider your evidence.
You say that the judge refused to review your evidence because the judge believed a lie that your ex’s lawyer told him (I presume) something along the lines of “Objection, Your Honor, I was never given a copy of these documents/photographs/recordings. I’m not prepared to address them.”
You claim that you can prove that your ex’s lawyer is lying because you had a witness with me when you delivered the evidence to your ex’s lawyer (I presume) well in advance of the hearing.
It appears that either the judge did not believe you, or, if you did not bring the witness with you to court, that the judge ruled that without the witness’s testimony the judge would not believe that you served your ex’s lawyer with the evidence, and thus would not allow you to present that evidence to the judge.
The lesson learned here?: when you deliver or serve documents/photographs/recordings to someone and need proof that you did so, use a method of delivery or service that provides an objective means of proving it. Have the lawyer or someone at his/her office sign for the documents/photographs/recordings when you or someone from the post office deliver(s) them. Or you could email the documents/photographs/recordings to the lawyer, which would another way of proving that you delivered/served them. Another thing you could do is file a copy with the court which, though it does not objectively prove you delivered/served the documents on the lawyer, the point is that if you went to the trouble of filing them with the court, then it’s more than likely you also delivered/served them on the lawyer too. Another thing you or your lawyer should do is file a certificate of service with the court that you or your lawyer served/delivered them.
is a sworn affidavit or in a form accepted by the court as equivalent to a sworn affidavit; and
the content of the affidavit/statement is relevant to the issues before the court in your particular proceeding (“relevant” means the evidence “tends to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence”),
then you likely can submit the statement to the court and have the court admit it as evidence, with the content of the affidavit/statement treated like any other admissible testimony.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What should you do if you represented a client in a divorce who should not have gotten the kids, but got them due to your ability?
We have a word for those who do such things, who compromise their principles, who devote their talent and effort to an unworthy purpose for personal gain.
Prostitute.
Many lawyers (more than you likely comfortably believe) come up with all kinds of ways to rationalize and justify it (“everyone deserves a zealous advocate/defense,” “it’s not my place to judge,” “I was just doing what I was trained and paid to do,” etc.), but it’s all prostitution, pure and simple.
I went through a phase when I sincerely confused being clever with being a “skilled” attorney. There’s a great line from the movie adaptation of John Grisham’s “The Rainmaker”:
Every lawyer, at least once in every case, feels himself crossing a line that he doesn’t really mean to cross… it just happens… And if you cross it enough times it disappears forever. And then you’re nothin’ but another lawyer joke. Just another shark in the dirty water.
Fortunately, I quickly realized the error of my ways and just as quickly corrected them as well. I’m not perfect, but I aspire as best I can to do what is right and let the consequence follow. What Hugh Nibley had to say about God’s law applies equally to earthly law:
The legal aspects of are not what counts — the business of lawyers is to get around the law, but you must have it written in your hearts (Jeremiah 31:33), to keep it “with all thine heart, and with all thy soul,” because you really love the Lord and his law, which begins and ends with the love of God and each other (Deuteronomy 6:5). It must be a natural thing with you, taken for granted, your way of life as you think and talk about it all the time, so that your children grow up breathing it as naturally as air (Deuteronomy 6:7-9).
I have believed/believed in a client and won cases for clients who I have later learned was in the wrong, who was lying, who shouldn’t have won. I was just as duped as the court in cases like those. I don’t feel guilty or ashamed (I can’t), but I do feel used and demoralized.
“I’m not upset that you lied to me, I’m upset that from now on I can’t believe you.” – Friedrich Nietzsche
“One lie is enough to question all truth.” – Unknown
Ethical rules prohibit a lawyer from prostituting himself/herself. To cite the two most relevant:
Rule 3.1: Meritorious Claims & Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.3: Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Utah Family Law, LC | divorceutah.com | 801-466-9277
My lawyer asked me to get letters of my character from my friends for family court to introduce as evidence, but do they really matter and is 12 enough?
Do letters vouching for one’s character really matter?
If so, are 12 character reference letters enough?
I will answer these questions:
in the context of a divorce and child custody case (because my guess is that is the kind of case for which your lawyer told you to get character reference letters); and
based upon the laws of the State of Utah, where I practice divorce and family law.
Do letters vouching for one’s character really matter? Another way one might ask this question is: “Do character reference letters have a major helpful impact on my case?” It’s impossible to say whether this is true in all cases. Some judges may give greater credence and weight to character references than do other judges. I think the key question is instead: “Is there any good reason not to submit positive character reference letters to the court in support of my case?” My answers to that question are:
I don’t see such letters posing a serious risk of harm to your case. If so,
Are 12 character reference letters enough? Probably more than enough, depending upon their respective length and content. 12 five-page, single-spaced, rambling letters without any paragraphing and bad punctuation and spelling are either not going to be read or remembered or, if they are remembered, will not be remembered favorably. Form letters that are all the same but for the signature at the bottom are a bad idea. Letters that attempt to build you up by tearing your spouse down aren’t terribly persuasive.
4 or 5 letters of one page or less, from credible (i.e., not just from from Mom and Dad, your minister and your best friend, but from neighbors and teachers, and others who don’t have a stake in the outcome of the case, for example) plain-spoken people who know you well and who make a cogent argument for your good character are probably about right in number and length. The only exception I can think of is if your spouse submits 10,000 character letters, then you may need to respond in kind, if the court determines character by volume.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are some examples of how to not appear judgmental as a lay witness in court?
Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
Listen to the questions posed to you, so that you know what information is being elicited from you.
Simply answer questions, and answer questions simply.
Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
Do not, do not, do not try to answer yes/no questions with rambling stories.
Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are some examples of how to not appear judgmental (or worse) as a lay witness in court?
Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
Listen to the questions posed to you, so that you know what information is being elicited from you.
Simply answer questions, and answer questions simply.
Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
Do not, do not, do not try to answer yes/no questions with rambling stories.
Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.
If you are asking whether there are “legitimate” ways to make truthful witness look inaccurate or dishonest (meaning there are ways to do it that won’t get you in trouble), there are tricks that may and often do work to bring about such a result. Damn you to hell if you employ any such tricks, but here are some that I am aware of (which I share with those of you who are about to be questioned by unscrupulous attorneys and/or judges who are trying to discredit you—forewarned is forearmed):
When cross-examining the witness:
Overstate, understate, and otherwise outright misstate the witness’s testimony in your questioning (put words in the witness’s mouth), yet make it seem to the witness that you are simply trying to summarize or rephrase the testimony accurately. This way you mischaracterize the witness’s testimony yet you may dupe the witness into “agreeing” that your summary/rephrasing is accurate.
Ask questions that embarrass, humiliate, and upset the witness, so that the witness responds rudely and by arguing with and insulting you. Imply that the witness is bigoted and a hypocrite. Either way or both ways, you hope that the judge and jury will reject the witness’s testimony on that basis, not on the basis of whether the witness is honest.
Ask the witness bogus questions that sound as though they are plausibly based upon truth but that you know the witness will deny as false. Done “well”, this technique of eliciting repeated denials creates the false impression that the witness must be lying about something because the lawyer cross examining the witness couldn’t possibly be asking so many questions without the witness acknowledging at least some of them to be true.
Utah Family Law, LC | divorceutah.com | 801-466-9277
It is not merely a question of how quickly the witness corrects his or her answer.
Sometimes a lawyer will ask a witness for precise details simply not because those details crucial to resolving a particular issue but simply because the more details a witness recalls the more the judge or jury may believe the witness has a particularly good memory and can thus be trusted that much more.
If the case depends upon whether an event did or did not take place on a Monday (or a Thursday), and the witness knows that, then a witness can damage his/her credibility by giving contradictory responses to the question. Unfortunately, even if it’s an honest oversight or slip of the tongue, the higher the stakes, the less tolerance there is for errors.
Still, it is better to correct what you stated in error than to stick to a false story to—ironically—avoid looking like a liar. to borrow from Mark Twain, better to tell the truth and risk being branded a liar than to bear false witness knowingly and thus remove all doubt.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In court cases, how does taking an oath make any difference?
From what I can tell, yes, it appears that taking an oath or affirming to tell the truth before being questioned as a witness in a legal proceeding (whether in court or whether the testimony is being given in relation to the court proceedings) does make a difference because lying under oath or affirmation is an element of the crime of perjury. No oath or affirmation, no perjury.
Lying without being under oath or affirmation can still be a crime or otherwise punished by law in other settings other than a court proceeding (for example, lying a law enforcement officer), so bear that in mind.
Clearly, the purpose of questioning a witness in a court proceeding is to gather factual and/or honest (truthful) information to help the court decide the case. Some information is factual, meaning it is not in dispute, it can be independently verified as true. Other information is “honest,” meaning that it may not be true but the witness believes what he or she is saying is true and is doing his/her best to testify as to what he/she remembers.
If one can be convicted of lying in court or in relation to court proceedings without having sworn an oath or affirmed to tell the truth I do not know of such a law (but that’s not to say such a law does not exist). Why one cannot be convicted of lying in court without having sworn an oath or affirmed to tell the truth I do not know.
I see no good reason why a law could simply be passed that any witness is guilty of perjury if the witness, when, after first being notified that the witness is questioned in the course of or in relation to the court proceedings, the witness makes a false statement of a material fact; and knowledge of the falsity made in a proceeding, or in relation to a matter, within the jurisdiction of the tribunal or officer before whom the proceeding was held or by whom the matter was considered.
Why aren’t lawyers required to be sworn under oath in a court of law?
Because the lawyers aren’t testifying. The only people who are sworn to tell the truth are witnesses who give testimony in court, not the lawyers presenting and arguing the case.
A lawyer is himself/herself still obligated to be truthful in his/her capacity of presenting and arguing the case in court, but lawyers are not sworn as witnesses in court unless they are themselves testifying.
There are times when a lawyer can and will testify in a case in which he/she represents a client or clients, such as when he/she is testifying as to the amount of and basis for his/her fees that the client may be seeking to be awarded to the client in the case or to establish that he/she performed some act pertaining to the case, but lawyers are not sworn as witnesses simply in their capacities as lawyers.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What would happen if a witness in court was asked if they will swear to tell the truth and they said no?
If the witness were unwilling to swear or affirm to tell the truth, the witness would either not be permitted to testify or sanctioned for contempt of court until the witness swears or affirms to tell the truth when called to testify.
Some people may object to “swearing” to tell the truth because their religion or personal morals prohibit swearing oaths, and so every state has a statute that allows such a witness to “affirm” to tell the truth instead of swearing an oath to tell the truth. Here is Utah’s statute:
What happens if you say no to the oath on the witness stand in court?
If you object to being sworn, to taking an oath (as some religions do), then you can “affirm” to tell the truth, the whole truth, and nothing but the truth instead of being sworn to do so.
If you refuse to testify under oath and/or under affirmation, then that can constitute both civil contempt of court and criminal contempt of court. This means you may:
be held in contempt of court for such a refusal, which usually means you will be fined and jailed until you’re willing to tell the truth (and if you refuse to tell the truth to the point that the trial has ended then you will likely be released; and/or
charged with criminal contempt and if convicted (there are defenses to the crime of refusing to testify, and if they apply to you, then you may be off the hook, but you need to assert those defenses at the time you refuse to testify) could be sentenced to another, specific jail term) and/or
not be permitted to testify.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If a witness won’t come to trial and testify for you voluntarily, then yes, you need to pay your witnesses.
Expert witnesses set their own expert witness testimony fees. Some experts may charge under $100 per hour, but some experts charge hundreds, even thousands of dollars per hour.
Plain old fact witnesses who won’t show up at court as a favor to you must also be paid, but they are only required by law to be paid $18.50 on the first day of trial, and if they are needed to testify more than one day, the law requires that they be paid $49 per day. If the witness has to travel more than 50 miles to get to court, you have to pay the witness a mileage fee too. The details of witness fees are provided below in Utah Code § 78B-1-119
Utah Family Law, LC | divorceutah.com | 801-466-9277
(1) Every juror and witness legally required or in good faith requested to attend a trial court of record or not of record or a grand jury is entitled to:
(a) $18.50 for the first day of attendance and $49 per day for each subsequent day of attendance; and
(b) if traveling more than 50 miles, $1 for each four miles in excess of 50 miles actually and necessarily traveled in going only, regardless of county lines.
(2) Persons in the custody of a penal institution upon conviction of a criminal offense are not entitled to a witness fee.
(3) A witness attending from outside the state in a civil case is allowed mileage at the rate of 25 cents per mile and is taxed for the distance actually and necessarily traveled inside the state in going only.
(4) If the witness is attending from outside the state in a criminal case, the state shall reimburse the witness under Section 77-21-3.
(5) A prosecution witness or a witness subpoenaed by an indigent defendant attending from outside the county but within the state may receive reimbursement for necessary lodging and meal expenses under rule of the Judicial Council.
(6) A witness subpoenaed to testify in court proceedings in a civil action shall receive reimbursement for necessary and reasonable parking expenses from the attorney issuing the subpoena under rule of the Judicial Council or Supreme Court.