Often in the discovery phase of litigation, witnesses are identified and interviewed by attorneys seeking to find out whether the individual may be helpful in proving factual allegations. While it may seem appropriate to build an army of witnesses, an experienced family law attorney knows how to identify strategic witnesses and when to incorporate them in the process.
When allegations are made in divorce and family law cases, there is a difference between what people believe they know and what they can prove. Proving facts in a legal matter requires admissible evidence. A witness offering testimony about their personal knowledge may become necessary to prove allegations made in divorce and family law petitions and pleadings. Often in the discovery phase of litigation, witnesses are identified and interviewed by attorneys seeking to find out whether the individual may be helpful in proving factual allegations. While it may seem appropriate to build an army of witnesses, an experienced family law attorney knows how to identify strategic witnesses and when to incorporate them in the process.
Different types of witnesses used in divorce and family law
Frequently contested matters involve money and children. The financial issues for which a witness would be ideal may concern the evaluation of assets and interests in a business, or tracing of wasted community assets of the marriage. Financial witnesses are often experts in their field and when qualified by the court as experts, they can help prove allegations of facts involving money and assets.
When issues involving the best interests of children, such as custody and visitation, personal witnesses may offer testimony supporting the claims made by parents. Additionally, expert witnesses may also be involved when they can offer testimony regarding the mental health and well-being of children.
Witnesses can testify in court as well as offer prepared reports
Using the example of a child custody matter where one parent is accused of bad acts, there may be a combination of expert and character witnesses involved in the process. The court may appoint an independent mental health expert to perform a custody study and report the findings to the court for review and consideration. Personal witnesses with actual knowledge of facts may also be offered by parents seeking to prove the allegations of wrong doing in their case.
The expert mental health witnesses may prepare reports as well as appear in court when called to testify to their work and findings. Witnesses who know the parties and have personal knowledge of facts and events may also testify in hearings and trials. The individual witness is not likely to prepare a report, however, where they are not otherwise qualified by the court as an expert on any given subject matter. A more likely event is a witness signing an affidavit, swearing under oath that the statements they make in the affidavit are true.
Disclosing witnesses and the discovery phase in divorce and family litigation
The discovery phase of pre-trial litigation involves the exchange of information to be incorporated in proving the allegations made in family law cases. During the discovery phase of pre-trial litigation, all parties to the matter must disclose the witnesses they intend to use in the case or produce at a hearing or trial. Expert witnesses and individual witnesses with personal knowledge can be the subject of an objection of the other party for a variety of reasons. Being selective in witness selection takes experience and wisdom.
When selecting potential witnesses to disclose for later use in litigation there are a few elements of human nature to consider. While an individual might have very useful personal knowledge of the facts involved, they may not be the best witness. The most valuable witnesses not only have knowledge, they are also credible, available and reliable. If your neighbor or children’s babysitter is considered as a witness, take a moment to imagine them being asked to sign an affidavit, testify in court, and be subject to cross examination where their credibility, memory and motive may be challenged. Be careful when your witness may have personal knowledge that helps you because the next thing they say under oath could hurt you.
Every divorce and family law case is as unique as the people involved. The courts have limited time and resources, as do most people involved in litigation, including the parties. Making smart witness decisions is important and requires specialized experience and skills.
*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)
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