Picture this – two spouses in a matrimonial dispute.  The husband (or former husband) files a motion to reduce his alimony.  In support of that motion, the husband files a certification, under oath, telling his side of the story about how he lost his job, has a disability, or whatever reason it is that has caused his down income.  On the flip side, the wife files her response to the husband’s motion, with a certification of her own, telling her side of the story about the husband is still living lavishly, is lying to the court, and is simply doing what he has to do to reduce his payment obligation to her.  Not surprisingly, the two versions of events could not be more diametrically opposed.


In that scene, what is the trial judge supposed to do?  Is he just supposed to take the husband’s word for it that he can no longer earn what he did before and that his entire financial picture merits a reduction of his support?  Is he supposed to believe the wife’s response, about how her former husband is simply just a bad guy who refuses to pay that to which he agreed or was ordered.


Generally – but, of course – not always, a trial judge is not supposed to resolve the question of credibility, or who is telling the truth, simply by reading the papers submitted by each party.  When there is a dispute of fact, the judge is supposed to then order a hearing, during which time he will take testimony from the parties and then determine who is credible/truthful.  Ordering a hearing, though, does not happen in every case, as almost every case will inevitably involve some dispute of fact, to some degree.  If the judge ordered a hearing in each instance, the family part would be even more flooded than they already are. 


It seems that moving parties are more often trying to overcome the defects of their motions by arguing that a plenary hearing should be held due to unresolved questions of fact or issues of credibility.  In other words, the litigant asks the court to hold a trial at some point in the future because the party asserts that the court cannot properly resolve the party’s motion simply by reviewing the disputing positions of the respective parties set forth on paper. 

While the case law indicates that a court cannot resolve issues of credibility or disputed facts without a trial, involving testimony, properly submitted evidence and the like, litigants often try to use such case law as a crutch to get past the fact that their motion should be denied on its face.  What often happens, as a result, is that a court will err on the side of caution in the realm of judicial discretion and grant the hearing.  The collateral damage is the incurrence of additional counsel fees, and substantial time before the motion is actually decided, thereby leaving the parties in limbo.  While hearings are often necessary to resolve legitimate issues, the question is whether the issue is always legitimate.

For the financially superior moving party, this may be exactly what he or she wants, as convincing a court to grant a future hearing can be an effective tactic to pressure the financially inferior party to settle.  While that party can seek counsel fees from the court to help take them through the litigation against the other party on an even playing field, there is no certainty that such fees will be granted.


I have recently had a case where the other attorney would tell us one thing on the phone and another to the Court or in Court papers.  When called on this about face in court, the attorney made a weak denial before saying that it does not matter what he said and that it only matters what his client believes.  In this situation, the assertion was curious, if not comical, because at issue was the interpretation of a court order.

That said, was opposing counsel right?  I think that, in most cases, the answer is no.  More importantly, there is a sufficient body of law that what a lawyer says could possibly bind a client.  Of equal significance, if counsel relies on the representation of opposing counsel, only for opposing counsel to backtrack or lie about making the representation, the case will no doubt get more contentious, if not more expensive.  In addition, thereafter, perhaps all communications will have to be in writing so that there can be no backtracking, etc. Moreover, this type of conduct raises ethical concerns regarding duties of candor to the court and duties of fairness to the opposing party, to name a few.

Some situations where an attorney can bind a client are as follows.  If an attorney has authority to settle and makes a proposal or accepts an offer on behalf of a client, it may be possible to enforce that agreement.  If an attorney takes a position in court, the client may very well be stuck with that position. 

I have had situations where attorneys have made factual misrepresentations to a judge on the record at a motion or conference with the client sitting right next to them.  In these situations, I have ordered the transcript for use at trial.  During cross examination, I have asked the other party, if they were present, if they heard what was said, and if they concede it was incorrect.  I then ask them to confirm that they were sitting there yet they never corrected the misrepresentation that they knew was wrong.  In several trials, I have seen judges cite this to justify the finding that the party lacked credibility.

Family law cases are hard enough and emotionally charged enough that what we don’t need is sharp and dishonest practices by the lawyers.  While bad for the system in general, this conduct also risks hurting their client’s case.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501 or esolotoff@foxrothschild.com.

Trials are often won or lost based upon credibility determinations.  More often than not, cases are replete with he said/she said situations, or real differences of opinion as to almost every issue.  In an interesting unreported Appellate Decision released on July 15, 2009, credibility was critical.  As the author of this post was the successful trial and appellate attorney in this matter, I am fully familiar with the facts. 

Aside from being important at trial, credibility determinations cannot be overturned on appeal.  On top of that, as long as the Appellate Division finds that there was sufficient credible evidence in the record, the trial court opinion will be upheld.

In this case, the issues were more than he said she said. In the six months between when the wife said that she wanted to get divorced and the filing of the divorce complaint, the husband’s law practice which had been growing and flourishing each year, suddenly became less profitable, if he was to be believed.  He was not believed.  Both the wife’s testimony as well as her forensic accounting expert’s testimony were deemed more credible. 

It was not just the wife’s word that was so compelling.  Rather, at trial we produced thousands of pages of exhibits that supported the issues we presented.  It was not surprising, on appeal, that defendant argued that there was no evidence in the record – but to do so, he had to fail to comply with the rules and submit the trial evidence.  The wife was forced to remedy this. 

On almost every issue at trial, the husband was deemed not credible. This included findings of discrepancies in his Case Information Statement, violation of Court Orders, lack of credibility regarding the marital standard of living and his income, etc.  The Appellate Division’s assessment of the husband was perhaps even more severe:

Finally, in an amended notice of appeal, defendant seeks review of an order entered on September 24, 2007 denying his motion for recusal of the trial judge. Defendant claims that "the trial [judge] made several inappropriate credibility determinations about defendant and his experts to justify rejecting the testimony and objective evidence presented at trial." After reviewing the record, we find no evidence of bias
against defendant. The court made credibility determinations based upon the evidence presented and defendant’s demeanor and testimony. We give great deference to the trial court’s credibility findings and will not upset them unless they are patently contrary to the credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Moreover, if this had been a jury trial, the court could have given the "False in One, False in All" charge, instructing the jury that if it found that defendant had testified untruthfully in one instance, it could find his entire testimony to be untruthful. Since numerous discrepancies in defendant’s financial information were brought to light during trial, the "False in One, False in All" principle applies.

The ramifications of not being truthful are rarely so clear.  We are obviously proud of the result obtained for our client in this case.