Some Things are Better Left Said

March 9, 2020 § 1 Comment

There’s no accounting for what a client might say on the witness stand. If you’ve done any courtroom work at all you can attest to that.

In their divorce case, Thomas and Debra Oates were locked in a dispute over the marital estate, consisting of a 39-acre parcel of land subject to a mortgage, along with the usual baggage, physical and metaphysical, that one accumulates over the span of a 13-year marriage. Debra claimed that the 39 acres were a non-marital inheritance. Thomas contended that the property, which had indeed been an inheritance, had lost its separate character. And yet …

When he took the witness stand and testified about it, after being asked what, specifically, he wanted the chancellor to award him in the case, here is what he had to say:

Q. If you could state which of those items you would like to have, what would they be?

A. My motorcycle and the apparel and my pictures, personal properties, my daddy’s stuff.

Q. Slow down. Your motorcycle?

A. My apparel, motorcycle apparel, my daddy’s stuff, and my guitars and amp.

Q. And that is all you want the judge to award you in the marital estate?

A. Yeah. I mean I’d like to have the four-wheeler, but I don’t know if it’s there or not. [My emphasis]

Does that seem rather incomplete to you? (Hint: there is no mention of the 39 acres).

The chancellor took Thomas at his word, found the 39 acres to be non-marital, awarded it to Debra, and let Thomas go forth with his stuff.

Thomas appealed, and you have probably already guessed the outcome. Affirmed by the COA on February 18, 2020, in Oates v. Oates.

Every client is more or less unpredictable when it comes to the pressure cooker of the witness stand. Some like it hot. Some wither. All struggle to a greater or lesser degree to find the right words to say what needs to be said. You can make your client’s testimony more predictable and successful by going over some of, the most important parts in particular, in advance of trial. Remember, it’s perfectly ethical to help a client with how to tell the truth — phrases to avoid, better choices of words –, and it is unethical to help the client make up a story that will win the day. Trial preparation is in most cases critical. I wish more lawyers did it.

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§ One Response to Some Things are Better Left Said

  • Zeke Downey says:

    Well, Judge, you’re right as usual, but some witnesses are simply too stubborn or too dumb to be guided. Some are so attached to their own plan that they can’t be led away from it even by explanation of the theory of the case. I will refrain from telling my favorite story along this line.

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