Going to trial can be a nerve-wracking experience. As Chicago divorce attorneys, we know first-hand clients are nervous and unsure of what to expect at trial if their divorce or family law case is headed to court. It is helpful to know a bit about what will happen to ease your anxiety. When you actually testify, there are a set of rules that your lawyer needs to abide by, and the more you understand about those rules, the easier it will be. Knowing something about the rules of evidence will be helpful.
What are the Rules of Evidence
Your attorney needs to introduce evidence at your trial. The rules dictate how the evidence is permitted to come and in what manner. Going over some common rules will make your Chicago divorce trial process easier to understand. When an attorney does not follow the rules of evidence, the other attorney will object. Here are some common objections you might hear make at trial.
Questioning Witnesses at Trial and Objections
During the divorce trial process, your attorney will call you as a witness. When you are called as a witness by your own attorney, you will be asked questions, however, the manner in which a question is asked will determine if the court will allow it.
Objection: Leading the Witness
When your attorney asks you questions, those questions must be asked in a non-leading manner. A leading question is a question that suggests the answer or contains the information the attorney is hoping to confirm.
Examples of leading questions are:
- “Your name is Sue Smith, correct?” Instead of: What is your name?
- “You live at 252 Livingston Court, right?” Instead of: Where do you live?
If you hear an objection for “leading” from the other lawyer, they are complaining about how the question is asked. Your lawyer is not allowed to “lead” you but must ask a non-leading question.
All evidence or conversations need a “foundation” in order to come into evidence. Think of it like building a wall. You need essential foundational questions answered before you can testify about conversations you had or present exhibits to the court. When you hear an objection for “foundation”, the other lawyer is complaining that you have not testified about when the event happened, where it happened, or who was there before you say what happened. If your lawyer asks you to explain what happened, without asking the foundational questions of who, when, and where, an objection from opposing counsel is likely. If the judge agrees with the objection (“sustains the objection”), then your lawyer will ask you more questions to build that foundation.
When answering a question, think about when the event happened that you are testifying about, who was there, and where it happened before telling the court what happened.
Unlike the discovery part of your case, (where everything can be called relevant if it can lead to something relevant) at trial, the court will only consider evidence that is relevant. If a lawyer tries to ask questions that are not relevant to the case, an objection for relevance is made. It is hard to understand just what will be considered relevant by the court, but you are likely to hear this objection sometime during your trial. If an objection is raised, the other attorney has to convince the court that the information elicited is relevant to the proceedings. Otherwise, the judge will not allow the evidence.
There is something about domestic relations court where someone is always trying to demonstrate that one party is not a good person, or that they are a good person. Evidence that someone is an adulterer is not relevant in Illinois divorce court now that our statute (law) has taken away “grounds” to get a divorce. There is also no need for you to introduce evidence that you are a good person. Your good character is not relevant either. The law prohibits the judge from awarding you more of the property in your case because you are the better person, and likewise, a person does not get less because they are a horrible person.
There are circumstances where a person’s character is relevant, but for the most part in family court, bringing evidence about how good or how bad someone is not important.
OBJECTION: Beyond the Scope
The person who goes first in the trial is putting on their “case in chief.” The first lawyer conducts a direct examination of the witnesses that are called. Once a witness is done testifying for one side, the other side is allowed to cross-examine the witness. The general rule for cross-examination though, is that the questions asked can only relate to questions asked during the direct examination. Sound confusing?
If the first lawyer only asks the witness questions about parenting styles and the children, then the other lawyer can only ask questions about parenting styles and the children. The second lawyer cannot veer off and start asking questions about money for instance during cross-examination. To do so would be “beyond the scope” or “outside the scope” of the direct examination. The judge should sustain an objection that is raised.
There are lawyers that cannot grasp this concept, and the exceptions to the hearsay rule are voluminous. As a general rule, keep in mind that you cannot testify that “Joe told you that Sue said that Amy hit him.” You are only allowed to testify about what you personally have seen, what you personally could smell, taste, or hear. Hearsay is when you try and testify about things that have happened when you were not there. If someone told you about it, it is hearsay and not allowed. The rules do allow for an exception to the hearsay rule though for the two parties in the case. If your spouse said something, then that statement can come into evidence.
Keep in mind that when you testify, it can only be about things within your personal knowledge. You cannot testify about things that happened or things that were said if you were not there.
OBJECTION: Best Evidence
One does not hear this objection for “best evidence” at trial too much anymore since many forms of evidence are now in electronic format. If a person tries to introduce a copy of a document, however, this objection can be raised. The court will want to see an original of the document to make sure that it was not tampered with or altered in any way. The best evidence objection also applies to pictures or recordings.
Every piece of evidence that comes in at trial has to be authenticated. What exactly does that mean?
If you are trying to introduce bank statements, for instance, someone needs to testify that these are in fact the bank statements belonging to a party in the case. A banker could be called as a witness to authenticate this type of document. An accountant could be the witness to authenticate a profit and loss statement for a business. I rarely see this objection anymore since there is a strong leaning from the judge to stipulate to these types of documents. If there is an issue about the truth of a document though, and what it purports to be, a lawyer could be subject to this type of objection.
OBJECTION: Settlement Negotiations
I am always amazed when attorneys try to interject mediation discussions or settlement position to the court. It is not allowed. The court wants you to attempt a settlement. No one would try to settle if they knew the position they took in those settlement discussions would be used against them.
No one would offer to take less money to get the case over with if they knew that the lawyer would ask them, “isn’t it true that in the conference room you agreed to take $100 less in child support?” These are discussions designed to settle the case and cannot be used against you. An objection will be raised if the opposing attorney tries to use it against you. One should always be allowed to attempt settlement without worrying that it will hurt you later.
Understand Objections and You’ll Be Prepared at Trial
Understanding the process of giving testimony is an important part of being prepared for trial. There are many other objections that could occur at trial, but these are some of the more common ones. No one will expect you to memorize them, that is what you have any attorney for! But it does ease the anxiety a bit if you hear about the objections ahead of time and you are not learning them for the first time during a trial. Before you go to trial in your divorce or family law case, be sure to read through these common objections used at trial and try to understand them. Better yet, try a practice session with your lawyer before you take the stand and you will be ready!
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/what-to-expect-at-trial-chicago-divorce/