Telling the truth

A judge has ways of knowing when a witness is being honest

All in the Family

Celia Gamrath

Celia Gamrath is a Cook County Circuit Court judge in the Domestic Relations Division. The views expressed in this column are her own and not those of the circuit court.

Credibility: The quality of being trusted, respected and believed.

Good parents teach their children to tell the truth and be honest, reliable and sincere with everyone and in everything they do.

Lawyers should share this same lesson with clients and explain to them the importance of being a credible witness.

A witness who has no credibility at all has no chance of success.

This conclusion was borne out in In re Marriage of Troske, 2015 IL App (5th) 120448 (Feb. 10, 2015), in which the state appellate court affirmed the trial court’s unequal distribution of marital assets to the wife based on the record and the trial court’s express findings that the husband’s testimony was not credible as to certain funds and assets, including dissipation and his testimony that his girlfriend financed their lavish lifestyle.

The trial court in Troske entered a 40-page order emphasizing that the husband’s testimony was “simply not credible” and unsupported by the evidence in the record.

In deferring to its factual findings, the appellate court stated, “The trial court is in a better position than this court to assess the credibility of witnesses. Here, there was ample evidence in the record to support the court’s finding that Robert’s testimony was not credible.”

Many things affect a person’s credibility, such as whether he or she has experience, reliability, firsthand knowledge of events and sincere demeanor that make his or her statements worthy of belief.

Judges and juries are given great deference for their credibility determinations because they get to see and hear the witness testify live and get a chance to observe facial expressions, body language, gestures and tone.

None of this comes from reading a cold record as the appellate court is called upon to do, which elevates the credence given to the findings of the trier of fact.

Consider how many times you received an e-mail or text message that offended you, only to discover the author was kidding or had no intention of being crass or harsh.

Things appear differently on a computer screen than they do when said face-to-face.

The same is true for the cold record. The words on paper might read the right way but may have been said in a sarcastic or insincere tone. Or the witness may have been shifting uncomfortably in the witness chair or taking cues from someone else in the courtroom.

Only the trier of fact has the firsthand chance to observe the demeanor and credibility of witnesses and assess the facts and circumstances surrounding the testimony.

This is why, in most domestic relations cases, the appellate court will not reverse a trial judge’s factual findings that hinge on credibility unless the findings are so off base that no sane or reasonable person would have ruled that way.

To decide whether a witness or your client is believable, and is likely to be believed by the trier of fact, consider these questions:

  • Does the witness have a personal bias or interest in the outcome of the case?
  • Does the witness have a good memory?
  • Does the witness seem honest and sincere so that when the witness speaks, it is apparent he or she is telling the truth and being candid?
  • Does absolutely everything the witness says grossly favor, or always hurt, one side of the case?
  • Does the witness have firsthand knowledge of events?
  • Is the witness experienced and educated in the field?
  • Is the witness’ testimony corroborated, or is it contradicted, by other evidence or testimony?
  • What does the witness’ body language say?
  • Does the witness’ story pass the “smell test”?

To fully judge the strength of a case, the lawyers should objectively assess the credibility and demeanor of the parties and their witnesses prior to trial.

In domestic relations, a lot can be gleamed from deposition testimony as well as from general dealings in discovery and at preliminary court hearings on temporary issues.

If your client utterly lacks credibility, it will affect the opinions and recommendations of court-appointed custody experts, guardians ad litem and child representatives.

It will also be harder to convince the judge to rule in his or her favor on factual issues at trial. While you have the right to appeal, don’t count too heavily on the appellate court to reverse.

The appellate court understands the role of the trial judge to assess credibility and weigh the evidence and usually will not second-guess the judge’s factual findings.

Credibility in law and in life should not be underestimated.

The credibility determinations of judges and juries, peers and partners are the kingpin of success in the courtroom, the boardroom and beyond.