How to feel empowered at Final Hearing

When you have had to run your divorce all the way to a full hearing or trial, it would have been a long and arduous course. It’s a small percentage of divorcing couples that end up at trial and the prospect of being cross-examined by the other side’s barrister can be daunting. Rachael Scharrer, divorce expert and separation strategist, shares some tips to help you feel empowered you when you are sitting in the witness box and throughout the final hearing process.

By the time you are having to engage in a lawyer, your divorce isn’t in a great state. However, you don’t have to hand over the reins, you can have a small sense of control by knowing what you are entitled to do. When you know what you can and can’t do, the

Selecting your barrister. When it came to selecting a barrister to represent me, my lawyer said “I’ll pick someone that you like and that you can comfortably talk to.” I was a little surprised and I said “don’t worry about picking someone to suit me, you’ll liaise with them. Please pick someone that the Judge likes and that will get what we want out of my ex.” My ex-spouse was anti-women, especially educated women, so I was incredibly fortunate to have the most wonderful, tenacious barrister who is like ‘a dog with a bone.’ I believe that you need to have a barrister that will get you the results that you need pronto!

Barristers will have good days and bad days. It’s just like you and I. There will be instances where you get what you want (or more than what you wanted) and other instances where you are dumbfounded that things didn’t go in your favour.

The success of your barrister has many contributing elements:

  1. How well they were briefed
  2. How much preparation that they put into your case
  3. The strength of your case and what you wanted as a result

And all of this costs money – lots of it! Barristers work weekends leading up to hearings and they work late at night (It’s something that I couldn’t do). They are trained for it and that is what makes them brilliant at their chosen profession.

Every barrister has a different style and each individual barrister has their own agenda. Many will want to trip you up or get you to say something that will be favourable to the client that they are representing (namely, your ex-spouse).

THE LIKEABLE BARRISTER. This type of barrister is easy and calm. They will ask questions and you will be agreeable. Over time, they will offer a half-truth and ask you to agree. It will get to the point that you are thinking “this person is nice” and you wont’ want to disappoint by disagreeing.

Tip: Remind yourself of the bigger picture and stick to the truth. It’s alright to disagree, or say no.

THE FAST-PACED QUESTIONING BARRISTER. This type of barrister will ask a lot of questions in quick succession and try to get you to make quick responses without offering you time to think. Some Judges also ask these barristers to slow down, but they don’t. This technique is great to catch the individual off-guard and to get them to tell the truth (especially if you believe that their affidavits and testimonies have been base on untruths).

Tip: Take your time to respond. You don’t have to answer quickly.

THE WAFFLING BARRISTER. This barrister will talk a lot, almost incessantly and the question can often become unclear or it may be posed in such a way that you think that you know the question when in fact, you may not. You may think that the question is rather dilute and yet based on the waffling, it is really loaded.

Tip: Feel welcomed to say “I’ve got confused, what are you asking me?” or ask the barrister to re-phrase the question

Your lawyer will have an idea or opinion about the opposing barrister and their technique. Ask your lawyer what they know about the opposing barrister and the style that they have. Your barrister will no doubt know or in the least know someone who has worked with them before.

You can ask or rely upon your affidavits. In the more complicated cases and especially when detailed affidavits have been offered, you can ask to refer to your affidavit. In my case, I had very specific dates and times throughout the affidavits and if I was asked about a specific date, I would have to re-read the affidavit to know what the barrister is referring to. In essence, you can ask for more information and you can ask for your affidavit. Having said this, you should read and re-read your affidavits supplied in the case and be familiar with everything that you have put forward. These are sworn testimonies of your truth.

You aren’t powerless in the process. Even though you may be sitting in the witness box, you are still in control of the process.

  1. You can take your time to answer and offer a considered response
  2. You can say no (especially when a half-truth has been asked)
  3. You can ask for the question to be stated again
  4. You must tell the truth. If you tell the truth and have always been telling the truth, then you have nothing to lose and no worries about being tripped up easily

The day that you are expected to go on the stand and testify your lawyer may not speak to you very much and they may appear distant or cold until after you testify. They don’t want to sway or influence you.

When you are on the stand, there are some court manners and tips to observe:

  1. Refer to the Judge as “Your Honour”
  2. Listen to the whole question and do not interrupt
  3. Answer when a question has been given to you
  4. Respond with no more information than the questions asks
  5. Only answer the question asked
  6. If missed the question, ask for it to be repeated
  7. If you don’t understand the question, state that you don’t understand and ask for it to be re-phrased
  8. Be honest, truthful and answer to the best of your knowledge
  9. If you don’t remember, state that you don’t remember (don’t pretend to remember or have the answer)
  10. Don’t argue or question the barrister/cross-examiner
  11. If the question is close-ended (a question requiring a yes or no answer), limit it to a simple ‘yes’ or ‘no’ and elaborate if it isn’t a straight yes or no
  12. Take a copy of your affidavit to the witness box. Keep it with you and only refer to it when directed by the barrister
  13. If you are feeling stressed, overwhelmed, sick or anxious, ask the Judge for a break
  14. Only words are recorded, not facial expressions, hand gestures or body-movements. Ensure that you use words to answer questions or to explain yourself
  15. Have a pen and notepad with you (say sticky-notes) so that you can quietly pass questions, comments or thoughts to your lawyer throughout the hearing. Your lawyer will filter these notes and refer the relevant ones to your barrister

It’s also worthy of remembering that many cases will settle by consent before the end of the final hearing and the Judge’s final orders are handed down. Always remain focused on the task at hand and be open to negotiation or settling.

Being in court for a final hearing or for trial is only a day to several days, even a week, of your life. Give it your full attention, ensure that your children are in the care of trusted guardians for the duration of the hearing so that you can concentrate and focus on a court event that can determine your future and how it unfolds.

My mantra as I approached final hearing for parenting was to “trust in the process.” I trusted that my lawyer and barrister would do their jobs well. I trusted that the Judge would see and hear the truth. I trusted that the outcome would be in the best interest of the children. I was fortunate that this was the case.

A Strategy Session can help you to feel more prepared, empowered and confident throughout your divorce journey. Book your Strategy Session today via this link. or if you have any questions please ask via the Contact Page

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This is general advice only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer and/or accountant before making a decision about what to do or applying to the Court. cannot provide legal advice. If you have an emergency situation, please contact Emergency '000'. © Divorce Pty Ltd