2. Trials: Trials Are about Credibility
We’ve all been told that trials are all about finding out the truth. This is probably a satisfactory description for school children or citizens who are casual observers of the process. But if you’re a party to a lawsuit who may end up in court, you’re probably looking for a deeper understanding of “what is really going on here.” You may be asking yourself, “What do I need to know to make sense of this proceeding I’m about to go through?” That is not only an excellent question; it’s the correct question.
Trials are about credibility. The essence of what the parties are struggling over is who is credible and who is not. If the fact-finder, be it judge or jury, does not believe what you are saying, it is very unlikely that you will receive much help when it is time for a decision to be made. The question of credibility does not just pertain to the party. Because the lawyer is arguing on the client’s behalf, the lawyer must guard against losing credibility. Likewise, should a party call a witness or present a document that is questionable, these too can destroy a court’s willingness to believe what is being said by or on behalf of a party.
Yes, cases are lost because a party tells a weak story that is just not credible to the court or jury. But, just as often, cases are lost because someone tells a story that is just a little too good or just a little overstated, giving the opponent the opportunity on cross-examination to raise questions about the party’s credibility. Lawyers worry, not only about a witness making exaggerated claims in testimony, but also about their own statements to the court or jury. Most lawyers have experienced or observed the negative effects of making a statement or promise to a judge or jury that cannot be delivered in the form of evidence. Trials turn on just such seemingly unimportant events because they raise questions in the mind of the court or jury about the lawyer’s credibility. “If he or she is exaggerating or misrepresenting this point, what else could be wrong with the client’s case?”
We human beings judge credibility from many things besides the substance of what is being said. Tone of voice, gestures, hesitation at the wrong moment, insensitivity, over-dramatization, inappropriate anger, lack of sympathy, rudeness, ingratitude, irresponsibility, impoliteness, and dozens of other quirks in behavior can destroy one’s credibility. It’s all about nuance. This is why trial lawyers say, “A picture is worth a thousand words, and one gesture can be worth a thousand pictures.”
If all of this does not cause you to be humble at the prospect of having someone sit in judgment on you and your life, you might want to check your grip on reality. As it turns out, however, humility and trust are a big part of what it takes to present your case to a judge or jury. You must make the best presentation you can with the attitude that, at some point, you will “offer it all up and turn it over to the judge or jury to decide.” It’s this genuine humility and trust that allow a judge or jury to see you as human. Humanity is a part of authenticity. Authenticity probably has a lot to do with credibility. In other words, credibility comes from working hard to control, as much as you can, the presentation of your case, but also at some point willingly handing control over to the fact-finder, be it judge or jury. Yes, with the help of a good lawyer who understands the process, you can credibly present yourself and your case in court! Isn’t that, essentially, what you have to do in the rest of your life?
Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 159-160.