Tips for Being Questioned in Family Law

If you are engaged in family law litigation, it is very likely that you will be questioned at some point in the process. This blog is intended to assist you in understanding what you have to do to prepare and what your lawyer must do.

The first thing you need to do is understand what form of questioning it will be.

There are two different types of questioning: questioning for discovery and cross-examination. These are two different processes, and the questions asked will differ quite a bit.

Questioning for discovery typically takes place at or near the beginning of the process.

This is a process for lawyers to better understand the opposing parties’ evidence and possibly their argument. We refer to this as a risk assessment process because the lawyers will ask questions about matters that they do not know about yet to assess what the answer is and how it may affect their client’s case overall.

Quite often, questioning for discovery will result in several undertakings. Undertakings are documents that are requested by lawyers to verify claims made by the opposing party. For example, a party may claim their income in 2024 was $100,000, so the lawyer will request an undertaking for that party to provide their 2024 tax return to verify that claim. Undertakings can be accepted, denied, or subject to efforts to obtain those documents (more on that later). Questions in the discovery phase are open-ended and are intended to encourage the parties to give an answer and possibly explain it.

Cross-examination is a very different form of questioning.

The intent of cross-examination is to test the other parties’ already-provided evidence, which is usually in the form of sworn statements. The questions are mostly close-ended, and the lawyer asking the questions should already know the answer to each one. The lawyer is typically attempting to catch the other party in a lie or to admit a piece of evidence that is not beneficial to them. Undertakings often result from this form of questioning as well, but are typically more specific.

Preparation for Discovery

Preparation for this type of questioning may be difficult because there will likely be a number of different issues that the opposing lawyer will want to touch on. For this form of questioning, you should have a conversation with your lawyer to understand the areas the other lawyer is likely to question and prepare in those specific areas.

For example, if parenting time is in dispute, it would likely be beneficial to review your calendar to familiarize yourself with the days that you had parented and the days that the opposing party had parented.  Or, if there is a dispute regarding how much spousal support has been paid to date, prepare by finding proof of all payments made or received.

It would likely be helpful to review any documents which have already been filed in your matter, along with correspondence received from the other side. This will assist you with understanding which areas the opposing side disagrees with you on.

Preparation for Cross-Examination

This is usually a questioning on a previously sworn document.  The first, and most important, thing to do is refamiliarize yourself with that sworn document. Make sure that you understand the content of that document and all of the claims that you are making in it. If you review it and see something is wrong or not fully accurate, make notes on that to bring up in the cross-examination.

For example, if you swear that your income for 2024 was $100,000 based on your T4 statement from work, but then after the document is sworn, you recall that you also made an additional $10,000 rental income from a rental property, make a note of that so that you can correct your evidence during cross-examination. It is typical for lawyers to ask at the outset of questioning whether there are any corrections that you wish to make to the evidence, and that would be a good time to bring up anything you notice.

If you are being questioned on an affidavit that you drafted with the assistance of your lawyer, make sure that you sit down with your lawyer to go over the affidavit in detail. Lawyers often insist that certain evidence is included in the affidavit to satisfy legal tests. Or, a lawyer will assist their client by making calculations for them, such as calculations for how much support may be owing. Your job is not to fully understand the legal test, but to understand what evidence you have put in the affidavit and why it is there. If you cannot explain or understand what is written in your affidavit, it may affect your credibility.

Tips to Consider During Any Questioning

It is your job to answer the questions asked of you and to tell the truth, nothing more and nothing less. It is never a good idea to lie or to give partial truths, and it is also not your job to provide long-winded explanations if they are not requested. The following are key suggestions to think about while being questioned:

• Let the lawyer ask the full question prior to answering. This is important because you need to know exactly what is being asked so that you can provide a sufficient answer, but also so that you do not inadvertently provide information that was not being sought.
• Pause before answering each question. This is important for 2 reasons: it slows you down so that you can formulate a full and coherent answer, and it ensures that the transcript is readable if it must be reviewed later. It is never good to talk over each other during questioning.
• Ask for clarification if you need it. If you do not understand a lawyer’s question, ask them to repeat it or to ask it in a different way.
• Keep your responses as brief as possible. The best answer is the answer that is accurate and uses the fewest words possible.
• Refrain from using absolutes. When people talk conversationally, they will often embellish what they are saying. For example, if I say that my dog chases every squirrel within 20 feet of him, the listener understands that I mean my dog chases squirrels often but not necessarily every single time because my dog may be sleeping or unaware of the squirrel or a host of other reasons. Be careful with your wording to ensure that you are saying exactly what you mean.
• Ask to be directed to the specific evidence you are being questioned on. If the lawyer questioning you refers to something written in a specific paragraph of a specific document, ask to be directed to where it is stated so that you can review the evidence before answering.
• Do not attempt to anticipate where the questioning lawyer is going on each line of questioning. Your job is to answer the questions truthfully and try to do your best to view each question as being in a vacuum separate from the questions asked before or after.

Your Lawyer’s Role

It is your lawyer’s job to prepare and be ready to get the information needed for the specific issues. Beyond that, it is your lawyer’s role to preside over the questioning itself to ensure that the questions being asked of you are appropriate and relevant.

Your lawyer will also guide you when it comes to accepting, refusing, or taking undertakings under advisement. Your lawyer should be sitting down with you near to the date of questioning to prepare you for the event and canvass potential areas of questioning with you for when they are questioning the opposing side.

Questioning takes a great deal of preparation to ensure that you are set up for success, both from your lawyer and from you, but it can be vital to a successful resolution.