Posted on October 1, 2009 by Robert A. Epstein

APPELLATE DIVISION FOCUSES ON RULES OF EVIDENCE AT A FINAL RESTRAINING ORDER HEARING

Victims of domestic violence often believe that they will be able to obtain a Final Restraining Order against their abuser simply because they were able to obtain the initial Temporary Restraining Order.  Obtaining an FRO, however, can be more difficult than one might think in light of the necessary proofs that must be made in court.  A victim must essentially prove his or her allegations by a "preponderance of the evidence" (more likely than not).

While New Jersey's Rules of Evidence are supposed to strictly apply, the fact that these situations are oftentimes  "he said/she said" versions of events can necessitate some flexibility in order to get the full story on the record.  However, as the Appellate Division recently held in N.V. v. Hartman, there are limitations as to har far a Trial Court may go in relying upon certain forms of evidence. 

The case involved a same-sex domestic violence dispute where N.V. alleged that Hartman had harassed her within the terms of New Jersey's Prevention of Domestic Violence Act.  In implementing a FRO against Hartman, the Trial Court relied in large part upon phone calls that Hartman made to N.V., finding that parts of the calls were threatening to N.V.'s safety based on the tone and language of the calls themselves. 

In reversing the Trial Court, the Appellate Division found that certain calls upon which the Trial Court relied were not made part of the Court record because a transcript of the calls was not entered as evidence, a verbatim record was not made of the calls played in Court, and the tape containing the calls was not marked into evidence as a Court exhibit and retained by the Court.  The Appellate Division, as a result, could not determine what recordings were acctually relied upon or played for the trial judge.  A new trial was Ordered as a result.

Relying on experienced counsel can help a litigant navigate through rules of evidence that can be tricky and technical.  Otherwise, key pieces of evidence upon which you want to rely at a FRO hearing may be inadmissible or improperly used in making your case. 

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Posted on January 3, 2009 by Sandra C. Fava

EVIDENTIARY STANDARDS WHEN CUSTODY IS AT STAKE

The rights of individuals who have children to parent is one of the most precious and protected while at the same time vulnerable and subject to termination when state agencies, including the courts are involved.

In November, Robert Epstein blogged on the procedural safeguards that must be in place when custody is at issue.  To read more on this blog, click here.  In conjunction with that blog entry, the Appellate Division just last week handed down another  published decision, which scrutinizes the burden of proof required by DYFS and that must be considered by trial courts when determining whether parental rights are to be terminated.

In DYFS v. M.C. III, In the Matter of M.C. IV and N.C., a father who had custody of his two children after a divorce from their mother was accused of physically abusing the children.  The father testified at trial that an argument arose with the children, who were at the time ages 15 and 13, over their use of the Internet.  From that argument the father admitted to pulling at his son's shirt and accidentally falling on his daughter, after his son jumped on his back and pushed him to the ground.  On the day in question, the police came to the home twice, neither time reporting any signs of abuse or injuries.  Subsequent to the second visit, the children went to an aunt's home, where they called their mother and took a train to see her.  Their mother then brought the children to a nearby hospital and DYFS received a report from the hospital.

At trial, rather than providing live, in-person testimony, DYFS presented as evidence written reports created by the doctor at the hospital, but not part of the hospital's file.  Rather, these reports were written on DYFS intake and procedure forms by DYFS workers, relaying what the doctor had allegedly reported to them.  In addition, the DYFS caseworkers who worked on the file did not provide their own live, in-person testimony.  Rather, other caseworkers testified as to the contents of reports prepared by other caseworkers.  These reports contained statements made by the children, police and hospital staff.  Since the caseworkers who prepared the reports themselves nor the doctor were available to testify, the trial judge accepted hearsay and double or even triple hearsay as substantial, credible evidence in finding abuse and neglect on the part of the father and terminating his parental rights.

On appeal, the Appellate Division held that given the serious impact a finding of abuse and neglect has on an individual and family's life, credible evidence must form the basis for a finding of abuse and neglect.  It is incumbent upon DYFS to provide such credible evidence, in conformity with New Jersey statutes, case law, Rules of Court and Rules of Evidence when presenting a case requesting the termination of parental rights.  Citing the law set forth in In re Guardianship of Cope, 106 N.J. Super 336 (App. Div. 1969), "it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and..the answering parent be given the fullest possible opportunity to test the reliability of [DYFS]'s essential evidence by cross-examination."  Id. at 343. 

As such, the Appellate Division held that the admission of DYFS created documents was "clearly capable of producing an unjust result" because the trial judge relied directly upon that evidence in finding that the children had been abused and neglected.  Those documents did not provide a reasonably high degree of reliability as to the facts contained therein.  Further, DYFS workers should only be permitted to testify to facts within their own first-hand knowledge of a case.

This case provides further guidance as to the standard of proof and credible evidence that must be presented in a case addressing a request to terminate a parent's rights.

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Posted on November 13, 2008 by Eric S. Solotoff

WHAT HAPPENS AT TRIALS

Recently, my partner, Mark Ashton, in our Exton (Chester County, Pennsylvania) office wrote an excellent post on our Pennsylvania Family Law Blog entitled "How Do Trials Work."  Too see his post, click here.

While much of the trial experience is the same, there are differences in New Jersey practice and procedure.  For instance, in Pennsylvania, it appears that many trials are conducted before a Master, who is a lawyer appointed by the Court to hear matters and make recommendations.  In New Jersey, we try cases in front of Superior Court Judges.  The only exception is when parties agree to try their matter in arbitration - though that cannot be compelled by a Court in a divorce matter.

Trials are rare.  They tell us that about 99% of the cases settle.  That said, after the discovery, appraisals, evaluations, depositions, Early Settlement Panel, mandatory economic mediation and in some counties Intensive Settlement Conferences at the courthouse, if the case is not resolved, trial is the last mechanism to get resolution.

Though each judge is different, many have a pre-trial Order requiring the parties to submit several things to the Court in advance to save precious court time at trial for the actual trial.  These submissions often include a trial brief wherein you set forth a parties position and the law and facts to support it, witness lists, exhibit lists (both for each party and a joint list), and stipulations.  Some judges actually want the actual exhibits in advance too. When we prepare, we typically put our exhibits in binders (4 sets - one for us, one for the judge, one for the other side and one for the witness). 

Stipulations are essentially a list of agreed upon facts that you don't have to spend trial time to establish.  While these are helpful, I have had at least one adversary tell me that he wont do them because it interferes with the flow of the presentation.  I think that ta ht is a valid point, but nevertheless, I try to enter into stipulations when possible. 

When you show up at the courthouse for trial, most judges will want to conference the case to give you one last chance to settle.  In fact, some attorneys show up unprepared to actually try the case because they are counting on this.  That is bad practice because the best way to be prepared to settle a case is to be prepared to try it because you are bargaining from a position of strength. 

Sometimes trial dates are really fake trial dates. What that means is that you are being called to court to try to settle, only you don't know that in advance. This past Spring, I received a call on the day before the trial telling me to be there at 8:30 the next morning ready to start the trial. Two other sets of attorneys got the same call and a third got the same call, but only to appear at 1:30. None of the four trials on the calendar for that day started. Not all settled either.

When you finally start the trial, sometimes a judge will want you to do an opening statement, or at least ask you if you want to. If there is a trial brief, an opening is not always allowed or required.

Then it is time to call the first witness. The plaintiff, i.e. the person who filed the Complaint for Divorce, gets to present testimony and evidence first. Very often, the plaintiff is the first witness. The lawyer will ask open ended questions on direct examination and the witness will get to tell their story. All appropriate areas for the court's consideration should be addressed during direct examination. Reference to documents often occurs to assist telling the story.

Similarly, sometimes charts or other summaries are prepared to both assist the Court and shorten the testimony. In fact, as long as the Rules of Evidence are complied with, they are often admitted into evidence as a summary of the testimony subject to cross examination.

Once a witness is done testifying, the other side gets to cross examine the witness. This is done by asking leading questions, where a yes or no answer only is required. A typical questions often begins "Isn't it true that ..."

The plaintiff's lawyer will then get to re-direct the witness, to clarify issues raised on cross examination. In fact, re-direct is limited to issues raised on cross examination. Sometimes there is re-cross, re-redirect, re-re cross, etc.

The same routine happens will all of the plaintiff's witnesses.

Sometimes, you call the other party as the first witness in your case. Aside from the element of surprise, if and when I do this, I try to limit it to some real key issues or admissions to get them before the Court right away. Some words of warning, the other side essentially gets to cross-examine their own witness. That can help them if the attorney thinks that they will not testify well on direct. Essentially they can be lead through their entire case, especially since the cross examination of a party witness is not limited to the scope of the direct examination, as it is for non-party witnesses. I recently put my whole client's case on in this way after my adversary made the mistake to call her during his case. Also, sometimes this can delay the trial because the witness may testify about the same issues first on cross by their attorney and then during direct. Also, if the smoking gun does not turn out to be a smoking gun, the impact on calling the other side first falls flat.

Once the plaintiff's rests their case, the defendant then gets to put on their witnesses in the same way.

After the defendant is done, the plaintiff may put on a rebuttal case to address issues raised in the defendant's case.

Note however, because of schedules of experts and other witnesses, it is not uncommon to take a witness out of turn, even during the other side's case. While you don't have to agree to this, unless there is a real good reason no to, this courtesy is usually extended.

After the rebuttal cases is over, it is time for Summations. Very often, they are written. This is your chance again to argue the facts that were proved during trial and why the court should grant the relief that your client is requesting. Some judges, require oral summations at the close of the testimony. In fact, one judge before whom I have tried a few cases allows only 20 minute oral summations.

Note also that trials are not usually done on consecutive days until they are done. Trials rarely occur on Fridays because that is when motions are usually heard. They are also not often not held on days when Early Settlement Panels are occurring. There then can be a variety of reasons why a case does not get tried continuously, even within the above parameters. I finished a case in September 2008 where our first trial date was in October 2007, our second in January 2008, our third in April, our fourth in August and our last day in September. While this is not the norm, it is not unheard of either.

After the summations are submitted, you wait for a weeks, if not months to get a decision. I have had one case the finished in July (and started in April) and we did not get the decision until the following May. Another finished about the same time, was not decided until January. In fact, I have two decisions outstanding for trial completed in August and September, respectively.

I note that these rules apply not only to divorce trials, but also to plenary hearings. A plenary hearing is essentially a trial, but usually involves limited issues. They are particularly common post-judgment, when the issue is modification, but arise in other circumstances too.

The process is long and often grueling, but sometimes necessary when parties cannot settle their differences.
 
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Posted on September 30, 2008 by Eric S. Solotoff

Read Mark Ashton's Interesting Blog Entry Entitiled "The Dangerous Trend in Electronics"

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "The Dangerous Trend in Electronics" on that blog.

To read the complete post, click here.

The post, among other things, discusses how people can be bullied by their spouses and significant others by the use of emails and text messages. 

More and more, we are seeing emails and text messages attached as exhibits to motions and as evidence at domestic violence hearings and divorce and custody trials.  As one of my adversaries likes to say, the "E" in email is for eternal.  Put another way, when a person types and sends and email or text message, they create a piece of evidence that can be used against them.  While most of the emails and texts sent each day are benign, more and more we see people act extremely inappropriately using these methods.  Perhaps people are emboldened to be more brash because the communication, while direct, is not face to face.  As such, it seems that almost every week I an suggesting that an email communication be toned down because they may be too aggressive.  I am also telling people to limit the email discussions to factual and/or logistical discussions and not get into the nonsense, even if their spouse is doing so.

I have a case now where we have used a spouses emails against him and yet he continues with his aggressive, belittling and/or outrageous emails.  While this will ultimately provide a treasure trove of information if there is a trial, it also needlessly drives of the hostility and legal fees.  In another recent matter, a spouse was trying to use emails to drive a wedge between his wife and counsel. 

The bottom line is twofold:  (1) no one deserves to be bullied, even via email and text message, and the recipient of this type of abuse should take all necessary steps at self-protection and (2) litigants going through a divorce should be very careful about how they treat the other party in emails and text messages.

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