Types of Witnesses in a Family Law Case

Types of Witnesses in a Family Law Case

Lay Witness

The first type of witness is called a lay witness. Simply put, a lay witness is a witness who does not have any expertise in any area they wish to testify. This type of witness may have some personal knowledge or experience with you, on the other hand. Frequently, people have their neighbors, friends, family members, and even their employers testify regarding their knowledge concerning a party's parenting, handwriting, specific acts, you name it.

Expert Witness

The other type of witness is called an expert witness. Texas has requirements for a witness to be declared an expert. According to the Texas Rules of Evidence Rule 702, "a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." As I am sure you can imagine, a jury will give more weight to an expert testimony over a lay witness’s testimony concerning issues described above.

How Does a Lawyer Prepare a Lay Witness for a Jury Trial?

Suppose you have a friend, neighbor, or another family member that will testify on your behalf. In that case, your attorney should want to conduct at least a couple of interviews with your witnesses before your family jury trial. Your lawyer must know what your witness will testify during the trial. Your lawyer's job won't be to create a testimony that the witness can rehearse. Instead, the lawyer should work with the witness to ensure that they are relaying straightforward and easy-to-understand information. The lawyer will work with your witnesses regarding appropriate courtroom behavior (including non-verbal cues that people give). Your lawyer may even advise a witness to dress a particular manner to be a bit more relatable and even more believable to an impartial jury.

At our firm, some witnesses are interviewed more than once so that the lawyer can have more time to get to know the witness and their testimony. Here is a time that some lawyers use to practice a bit, running through questions with your witnesses that the lawyer will likely ask on the court. Your witnesses should come off as honest and trustworthy to the jurors.

Additionally, your lawyer will also want to be prepared for the opposing side's lay witnesses, especially if any witnesses will testify against you. Your lawyer should have the ability to think on his or her feet so that only the most appropriate and fitting questions are posed to each witness on your lawyer's cross-examination of them. Since the opposing party has already given you and your lawyer a list of the witnesses that they plan to call at trial, most of the time, both you and your lawyer can anticipate what testimony the witness will give.

How Does a Lawyer Prepare an Expert Witness for a Jury Trial?

In complex family law cases such as divorces with property division or complicated custody issues, it may be necessary to employ an expert. The most common experts used in family law cases are therapists, physicians, and CPA’s. Since many jurors will lack the necessary experience or education regarding the division of assets, medical diagnosis, or suggested treatment for a child, having a knowledgeable expert witness could make or break a case. 

Let's imagine that you have separate property that has been commingled. You'll likely need an expert CPA to trace the origin of assets. Since separate property won't be divided in a Texas divorce, it is important to have an expert that can not only assess the extent of the separate property claim(s) of either or both parties, but that can also relay the information in a straight-forward way to the jury. If your lawyer has a good working relationship with the experts hired, your lawyer can work with them to ensure that the testimony is up to par. If it is not, you can risk having a jury return an unfavorable verdict.

On the same note, perhaps you have hired a child psychologist, or maybe the court has appointed one to your case. This psychologist's testimony regarding his or her professional opinion will be given great weight in a custody case decided by a jury.

Finally, as the last step to prepare, your lawyer will likely want to gather all of the supporting documentation needed for trial. Typically, experts will supply the party or parties with written reports of their findings. Your lawyer's job is to mark all necessary supporting evidence as exhibits, after providing the opposing side with copies of each report during the discovery phase.

Next Steps

Now that you understand what the two types of witnesses are and how they’re prepared for trial, you will be able to find an attorney best to represent your case.

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