One of the more challenging tasks family law practitioners are faced with is balancing their client’s often compelling and moving story against evidentiary rules and practices in court and in pleadings. While the client’s story can be compelling due to how serious and emotional the matter is, often much of their story is not admissible in court due to the rules of evidence.
Though family law cases are often much more emotionally driven than other civil cases, and can deeply affect each family member, family law is still grounded upon the same rules of procedure that govern other civil trials. Thus, if a client believes that their spouse is abusing the children, hiding money, suffering from an addiction or breaching a fiduciary duty, that belief must be supported by evidence. The evidence can include documents, personal observations or personal knowledge, any of which can support a strong assertion, and thus create a fact, in front of the family law court.
While there are some exceptions to evidentiary rules, it is much wiser, and safer, for both the client and the family law attorney, to be fully aware of the possible pitfalls. It is literally true that each sentence in a client’s declaration of evidence should be scrutinized to ensure that it is legally admissible, to provide the best opportunity for the declaration to be admitted into evidence and hopefully given strong consideration by the family law court.
For example, if a client believes that a spouse may be suffering from an addiction, the family law attorney has the great task of providing all evidence to support the addiction claim. This can include observations by the client or other third party witnesses, documentary proof or admissions made by the addicted spouse (an admission which is an exception to the hearsay rule).
Testimony by a party about statements he or she heard made by a neighbor will likely not be admissible unless a specific evidentiary exception exists, no matter how riveting the statements may be. Thus, while the statement from a neighbor that the husband of a divorcing spouse looked drunk when he arrived home one night at 1:00 a.m. is compelling and riveting, the spouse’s testimony about what the neighbor observed and said is likely inadmissible. The better approach is for the neighbor to provide his or her own declaration (written statement) signed under penalty of perjury, as to what the neighbor personally observed that night at 1:00 a.m.
These examples show that, while a particular statement may indeed be compelling, a skilled family law practitioner will also consider whether that statement is admissible. A client’s declaration or live testimony does not have to be dramatic. It must contain admissible, competent and relevant facts and statements of circumstances to which the client must attest.