Good lawyers learn that everything inside the courtroom becomes part of the case. We also learn that we face the front of the room.  We can see the judge, the witness, and if the opposing lawyer is on that side of the room, them too.  If it’s a jury trial, we can watch the jury.  But we can’t see everything at once.  Most of the time, we can only watch either the judge, or the witness, or opposing counsel, or the jurors (if there is one).

We can’t see anything behind us.

Judges face out at the room.  They sit on a raised platform.  It’s the best seat in the arena.  They see everything. 

I recall having a judge once angrily draw my attention to my young client, who had a Big Gulp, a bag of chips, and her feet – all propped up on the railing between the gallery and the court proper.  How embarrassing.

Good lawyers learn to get their witnesses – including their client – on and off the stand as quickly as possible.  We learn that they should never be in the room unless they are testifying.  If the client is in the room while someone else is testifying, it’s distracting.  The judge will watch the client.  Maybe the judge will decide: “She doesn’t look injured.”  Or: “What a pig, he just picked his nose!”  The witness will keep looking at the client.  The client may react: head shakes, nods, shrugs, etc.  It may look like they are signaling each other.

The recent family case of S.B.F. v. D.G.F. https://canlii.ca/t/jv6dg is an example of lawyers not controlling their client.  It should have been a simple case: there was a prenuptial agreement signed a week before the wedding.  Upon divorce six years later, the Wife claimed the agreement was unfair and she didn’t really understand it when she signed it.  The Husband pointed out she’d had her own lawyer, who advised her about the agreement before she signed it.  The Wife was an educated professional.

The law in these cases is simple.  It comes down to the facts.  Facts depend on what the judge believes. What the judge believes often depends on how the case is presented. You know: lawyering.

In this case, the Wife had two lawyers.  Notwithstanding that, she appears to have decided to run the case her way.  Madam Justice Murray was not impressed.  Here’s a sample of what Justice Murray said in her decision:

“… I have difficulty with the evidence of Ms. F. Her hostility toward Mr. F. pervaded her evidence. On several occasions, Ms. F. addressed Mr. F. directly in an angry tone when answering questions. I had to remind her to direct her answers to me. When she was not testifying, Ms. F. sat in the back of the courtroom and glared at Mr. F.

To her counsel in direct examination, she was responsive and pleasant. In cross‑examination, she was curt and she was often evasive.

I find that Ms. F. exaggerated aspects of her evidence that she thought would help her.

I find that Ms. F.’s animosity and bitterness toward Mr. F. clouds all of her evidence.”

Not surprisingly, Justice Murray dismissed the Wife’s case.  The trial lasted eight days.  I estimate she will have to pay the Husband something like $24,000 towards his legal expenses.  Her own legal expenses (2 lawyers for an 8 day trial), I guestimate at around $100,000.  All because her lawyers could not control her spitefulness. That’s an expensive lesson. Think she learned from it?

At Clear Legal, we don’t have eyes in the backs of our heads.  But, we have been paying attention to everything that happens in our cases, and in our courtrooms since 1990.  And we have been in control of our cases just as long.