Clients have asked me this question thousands of times over the last 30 years.
I recently completed two live trials where I observed my clients (more critically) as they were sitting in the courtroom. I also was observing their family who were also sitting in the courtroom. In both cases, I did this because I noticed that the trial judge would occasionally lift his or her head to look at my client or their family during the course of the trial.
I wondered what the judge thought of my client and their family. I pondered whether the judge cared whether my client had the support of their family in the courtroom for every day of trial and whether that impressed the judge. I wondered if they were influenced by the way my client dressed, stood, sat, how they communicated with me, their facial expressions and body language and, most importantly, how they reacted when they heard the evidence against them by their former spouses and their witnesses.
Obviously, the trial judge was watching them. In fact, the judge observed my clients’ behaviour for more hours and days while sitting beside me, than when they testified in the witness box.
Because I was observing the trial judge raise their head to look at my clients and their families, I cautioned my clients and their families to not make overt facial expressions, not physically react to damning evidence and not make any sudden movements. I was all too aware that I did not want there to be any possibility of a negative inference being drawn against my clients. This became even more pronounced during cross-examinations when there was a sudden admission or a stinging impeachment on credibility.
It is logical that the behaviour of the client can validate the allegations that are being made against them, such as them being volatile, aggressive or dysregulated. One would think that such live observations of raw behaviour corroborate the allegations more than the client responding to them while testifying in the witness box, after careful planning, coaching and rehearsal.
But should that influence the trial judge and impact the outcome of a case?
That is why this article is such a good read. These events do occur. When they do, judges are likely moved by them. But judges often do not report in their written decisions on their observations of the witnesses when they are not in the witness box. Otherwise, this would be a triable error and subject to correction on appeal. But judges are human, and humans observe human behaviour, which is important in divorce cases, especially regarding parenting issues.
So the answer to the question in the headline is:
Dress as you would for mosque, synagogue or church. Sit quietly, politely and still. Be calm and non-reactive, but appear concerned. If you have something to say, write it on a note and pass it to me. Be aware that the judge is watching you.
Article Link: https://www.slaw.ca/2023/07/07/stop-assessing-credibility-outside-of-the-box-why-adjudicators-should-only-consider-demeanour-of-a-witness-while-on-the-witness-stand/
Editorial Note: Originally published in 2023, this article explores the importance of courtroom behaviour and appearance during family law trials. While courtrooms and legal norms evolve, the observations and practical guidance offered here remain highly relevant to clients and professionals alike.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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