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Brian Burke: About Your Divorce (Letter 12)

It's important to understand the differences between — and implications of — a trial and a hearing

Dear Nora and Nick:

I concluded the last letter by telling you that if you want a decent and dignified divorce — one that will end with both of you feeling like a “better person” — you are not doing well. You’re in the bottom 15 percent of divorcing couples in South Santa Barbara County. This minority has asked the Superior Court to get involved in their very personal business by ordering the other party to do something (such as pay support, relinquish the family dog, turn over the children, etc.).

The request for an order is made in writing and a “hearing” in front of a judge is scheduled in order to hear both sides. (Recall that the 15 percent includes cases in which a hearing was requested but the problem was resolved by the parties before the hearing; in other words, the court considered no evidence and made no decisions.)

It can get worse. Less than 4 percent of the divorcing population requires an actual “trial.” This small minority uses most of the court’s resources, which are often of no benefit. Researchers qualified to make the observation have said that within this group there is a high incidence of families dealing with various addictions. There is also a high incidence of individuals with “personality disorders,” which is a diagnostic category psychologists and psychiatrists use for a number of pathological conditions.

The difference between your 15 Percent Group and the 4 Percent Group is that the first involves one or more hearings and the second involves a trial, so you should know the difference between the two.

. . .

A trial is a big deal. It’s the Rolls-Royce of dispute resolution. In almost all cases a trial can include a jury. Fortunately, there have been no juries for divorce trials since the enactment of the “no fault” legislation in 1970.

At the heart of an Anglo-American trial is the notion of admissible evidence. During the past 500 years, experience has led to a distinction between the type of information that tends to be reliable and the type of information that’s inherently unreliable. The Rules of Evidence have evolved to eliminate unreliable information and to include reliable information in the judicial decision-making process. The reliable information is called admissible evidence, and the unreliable information is called inadmissible evidence.

The judge protects the jury from seeing or hearing inadmissible evidence. When a judge decides a case without a jury, there is no one to protect the judge from inadmissible evidence. In that instance, the judge will usually hear testimony and read documents even if one side objects and claims inadmissibility. The judge’s rulings on objections tell the lawyers what information will be considered in making the decision. In other words, a judge, unlike a jury, will see and hear inadmissible information. However, the judge’s final decision will be made only on admissible evidence; the judge is required to treat the information found to be inadmissible as though he or she had never been exposed to it.

The admissibility of testimony and documents “offered in evidence” is tested by the use of “objections.” Here are four common examples of how it works:

» “Objection, irrelevant.” The question seeks information that’s not logically related to any contested fact; the testimony would be a waste of time.

» “Objection, incompetent.” The witness does not have personal, firsthand knowledge of the information he’s being asked to provide. This is not an insult; it’s simply a way of saying the witness wasn’t in the right place at the right time to provide reliable information.

» “Objection, hearsay.” Hearsay is secondhand information. Admissible testimony must come from a live witness who claims to have firsthand knowledge. The witness must give testimony in the courtroom so the other side can conduct a cross-examination in front of the judge or jury to expose weaknesses in the testimony. While there are several exceptions, hearsay testimony is generally inadmissible.

» “Objection, calls for an opinion.” If a witness responded to a question with, “It was a horrible accident,” the testimony is an opinion. Regular witnesses can give opinions about sobriety, the authenticity of a signature and the value of their own property. Otherwise, testimony is limited to information obtained by the witness via the five senses.

A hearing is an abbreviated, or summary, trial. Hearings are held on matters incidental to what’s really in dispute. In divorce, hearings can concern temporary support, temporary arrangement for children, temporary use of property, requests for attorneys’ fees and rulings concerning what must be provided as part of the discovery process.

Live witness testimony is a chief characteristic of a trial, but in a hearing witnesses are rarely called. Instead, testimony comes from declarations, which are written, factual statements made under penalty of perjury. Each of the statements made in a declaration is supposed to meet the criteria for admissible evidence.

In your case, both lawyers claim the other has loaded declarations with statements both inadmissible and inflammatory. By inflammatory, they mean the judge is being given information that reflects badly on the other person even though the law prohibits the judge from using the information in making a decision. The inclusion of negative information the court is not allowed to consider is a frequently used and particularly unprofessional tactic. Both lawyers have filed requests asking the judge to strike, or eliminate, the inadmissible language in the declarations filed by the other.

I’ve looked at the file. Your lawyers are right; each has filed declarations loaded with information containing statements clearly inadmissible as evidence. This is done on the theory that, once the judge has read the statement and ruled it inadmissible, the “bell has been rung” and it will influence the judge’s thinking even though it is not supposed to. Each lawyer is damned by showing how the other lawyer cheats, so neither passes this litmus test for professionalism.

Your friend,

Bucky

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Roadmap™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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