Credibility is a major issue in most family court trials. See e.g., Lewis v. Lewis, 392 S.C. 381 709 S.E.2d 650, 654 (2011) (“The highly fact-intensive nature of family court matters lends itself to a respect for the factual findings of our able and experienced family court judges who are in a superior position to assess the demeanor and credibility of witnesses.”). Further family courts have tremendous equitable powers, including the power to determine custody of children, divide up spouses’ property, and shift income from one spouse or parent to the other. Combining these equitable powers with an uncredible client creates significant potential for a very unfavorable outcome at trial.
Yet sometimes one will have a family court client whose credibility is already so damaged that a litigation strategy based upon that client’s credibility is untenable. Perhaps the client has filed sworn affidavits or financial declarations rife with deliberate inaccuracies. Perhaps the client has been caught submitting falsified or altered documents. Perhaps the client has repeatedly testified untruthfully in his or her deposition or even in previous court hearings. How does one successfully represent this client at trial?
The key is to minimize the need for the court to accept the client’s testimony as a condition of accepting the client’s legal position. This approach employs various strategies and is not inexpensive to implement. However, it can greatly mitigate the damage that the client’s prior incredibility created.
The first step is to stop presenting demonstrably uncredible evidence. The saying, “when you find yourself in a hole, first stop digging” is apropos. Do not have the client reintroduce incredible evidence at trial. If the opposing party uses this incredible evidence for impeachment at trial, counsel the client to acknowledge its inaccuracy. Denying the incredibility of incredible evidence renders the client more incredible. Acknowledging such evidence’s incredibility is a pathway to rehabilitating the client’s credibility.
The next step is the analyze the case with the assumption that nothing the client says will be believed. From that basis determine what might be proven at trial. For example, if one of the factual disputes involves an incident of domestic violence between the parties in which there were no other witnesses it is safest to assume that the court will accept the other party’s version of the event. One must then determine which goals can be realistically achieved with the assumption that this factual finding will be adverse to the client. This is the point in which one might need to pare the client’s goals to those that are strongest and least reliant upon credibility.
However if there is a factual dispute over where one’s client was living at a particular time there might be records corroborating the client’s version of events. Obtaining these records and making sure one has established the foundation to admit those records (if there is a factual dispute regarding the records’ authenticity assuming an incredible client can verify their authenticity is risky) reduces the need to rely upon the client’s testimony to prove this disputed fact. The goal is to develop a case strategy in which the goals can be achieved, and disputed facts proven, which has no reliance upon the client’s own testimony.
This method of proof is expensive. One will be spending time and funds obtaining records and verifying their authenticity. Often it is useful to depose most of the opposing party’s witnesses to see if one can obtain concessions from these witnesses that corroborate the client’s version of factual disputes. Such corroboration can bolster the client’s credibility on factual disputes. One might call numerous supporting witnesses to corroborate the client’s version of events under the assumption that the court might not believe the client otherwise. Finally one might engage experts to corroborate the client’s position on financial or medical issues, perhaps even having these experts present the testimony that would normally come from the client.
The more that evidence can be corroborated by witnesses or documents whose credibility is not damaged the less one needs to rely upon the client’s credibility. The goal is to minimize the reliance upon the client’s testimony and to maximize the use of other evidence to prove one’s case.
There is a natural tendency to despair when a client’s credibility is irredeemably damaged. However employing the techniques above can greatly reduce the potential for a disastrous result and can sometimes even be employed to achieve success.