Almost anything can be an exhibit if it will advance the cause and lead to proof of the case.
By Lynne Z. Gold-Bikin and Stephen Kolodny, Family Lawyers
The Importance of Documentary Evidence
Often, dissolution cases become a “he said, she said” fight, with two diametrically different versions of the same incidents and lifestyles. The introduction of documentary evidence to support your client’s side of the story is very effective and may swing the case to your client’s side. Such evidence can range from already existing documents to evidence created for trial. Wherever it arises, it can make or break a case.
From the beginning of the case, counsel should always be thinking of evidence to support or destroy a case. Are there bank statements that prove premarital assets? Are there pictures or letters that prove an affair? What do the report cards say about how a child is doing while in the custody of only one parent? Do the tax returns of the corporation prove retained earnings in excess of what is needed to maintain the company? Are there canceled checks that prove dissipation of marital assets by buying jewelry for the girlfriend? Are there cards or letters from the children to the parents that may be helpful? These are just a few examples of documentation already in existence that may help or harm a case.
Evidence that may be created for the trial is also important. Creating a “Day in the Life” of the children video is effective in custody cases. Putting together photo albums showing the history of parenting or the interior of a house may be helpful. Videotaping the artwork on the walls of the family home or the valuable collection gives a judge a valuable image of what the fight is all about. The expert reports or appraisals are documents created for trial. Posters and enlarged photos may be effective. Your creativity in coming up with effective exhibits may be the very thing that wins the day for your client.
Introduction of Exhibits
One of the most difficult tasks for the novice litigator is to properly and efficiently introduce exhibits. There are basic steps that must be followed to introduce these exhibits and to move their admission. Marking an exhibit does not make it part of the record; it must be introduced and accepted by the court to complete the procedure. Like moving around the bases in a ball game, all bases must be touched in the correct sequence in order to score. The process is a simple one and goes like this:
The first step is to have the exhibit marked. Some judges prefer that all exhibits to be used be pre-marked to save time at trial. The downside of premarking is that, in the progress of the case, some exhibits may come in out of order, making it confusing. If control is kept over the order of the questions, however, that should not be a problem.
After the exhibit has been marked, it must be shown to opposing counsel. It is appropriate to have a copy for counsel, one for the court reporter, a bench copy for the court, one for the client, and a file copy. ln other words, plan to have five copies of each exhibit that you intend to introduce.
After the exhibit is shown to opposing counsel, it should be shown to the witness for identification purposes. The process should proceed as follows:
Counsel: May I have this marked as Exhibit W-5, Your Honor?
Judge: Please show it to counsel.
Counsel: Counsel has a copy, Your Honor. With my colleague’s permission, may I provide a bench copy to the court?
Judge: Hearing no objection, I will accept a bench copy.
Judge: Since counsel objects, I will not accept a bench copy until it is admitted in this case.
Counsel: May I approach the witness.
Judge: You may.
Counsel: Mr. Witness, I show you what has now been marked as Exhibit W-5. Can you identify this document for the Court, please, or can you tell us what this document predicts?
This is the tricky part as this is where the witness must be able to authenticate the exhibit. This is a multi-step inquiry. Is this the correct witness to authenticate this document? Is this document relevant for this particular case? Is this document or exhibit appropriate as the best evidence? Until counsel moves its admission, asking the witness to identify the document should not draw an objection, providing the witness can, indeed, identify it or authenticate it. The exhibit may draw objections for many reasons, but objections may be raised only when counsel attempts to move it into evidence. For example, if the exhibit is a photograph of the child and his grandmother, and has been taken by the witness, the witness can identify the picture. If the photo has been taken by another person, the witness can still authenticate the photograph by questions such as these:
Counsel: Did you take this photo?
Counsel: Can you identify the persons in this photo?
Counsel: Who are they?
Witness: This is my son, and this is my mother holding him in her arms.
Counsel: Do you know who took the photo?
Witness: Yes. My ex-wife took the photo and I was standing next to her.
Counsel: ls this an accurate picture of what it purports to show?
Witness: Yes, ma’am, it is.
This identifies the photo not by the person having taken it, but by a person being able to authenticate what is in the photo.
So, too, with documents. If the document is the witness’s tax return, he or she can say, “Yes, that is my tax return.” lf it is his bank statement, he can identify it. If it is a letter written by her or to her that she has received, she can identify it.
After the witness has identified and authenticated the document, counsel may now ask the court to accept the document by saying, “Your Honor, I move Exhibit W-5 into evidence.” That is the time at which the other side may object. Objections may be made on the grounds of a hearsay document, in other words, an out-of-court statement offered to prove the truth of the matter asserted; or relevance; or other grounds — if the document is a copy, for example, an objection may be made on the grounds that it is not the best evidence. Once the document is offered into evidence, it may then be used in later testimony.
The difficult part comes when counsel attempts to get in a letter written by someone not in court to a third party. That might be a note from a teacher to the witness’s spouse or may be a letter to the witness from the teacher of one of the children. While having the witness identify it may not draw an objection, attempting to move it into evidence surely will draw an objection on the grounds of hearsay. Knowledge of the rules of evidence and the exceptions to the hearsay rules is critical to enable counsel to introduce certain exhibits. For example, the children’s report cards may be accepted by the court as business records kept in the ordinary course of business. A psychologist’s report in a custody case, while technically hearsay, may come in by agreement of counsel or because the expert is present in court and the judge may want to see it for her convenience. These are evidentiary issues and counsel should refer to the state rules of evidence as to appropriate objections and their exceptions.
As mentioned above, expert reports are technically hearsay and should draw at least one objection when counsel attempts to introduce them into evidence. While you may certainly request that the report of a hostile expert not be admitted until after cross-examination, most judges want the document in front of them when the expert testifies. This puts you “behind the eight ball” when you score points on your brilliant cross-examination, putting out to the court the errors in both facts and findings of the report. At the very least, attempt to keep the report out of evidence until the expert has completed his testimony. Then raise a hearsay objection if you want the report kept out. A second objection, when the expert has testified and basically followed her report, is that the exhibit is now cumulative and, therefore, should not be admitted. Preserve your objections and make them when appropriate.
As for your own expert’s reports, once the expert has written a report, it is discoverable. The business appraisal, for example, should be in the hands of the other side prior to trial. If you do not want it revealed, it should not be written.
Photograph Albums and Videotapes
Use of photograph albums is a very persuasive way to establish marital lifestyle and activities of children. Occasionally when there are factual issues of contact or involvement in an activity, photographs will provide the extra piece of evidence to persuade the judicial officer of the validity of your position. It is not necessary for the actual photographer to establish the foundation for the photograph. The witness merely testifies that the photograph accurately portrays the scene in the photograph at the time in question.
In custody trials and even in property division cases, making photograph albums for the court is an excellent idea. The old adage “one picture is worth a thousand words” is never more true than at trial. Photos of Dad with the children at Disney World, the zoo, the park, flying kites, and all the warm and fuzzy things parents do with their children are very effective. They give the judge a picture of the players and, while recent pictures can be staged, historical pictures of father and children prior to the breakup of the marriage make the argument that the father’s involvement with the children did not begin when the custody action was filed. Blow-ups of some pictures on easels around the courtroom can mesmerize the judge while testimony continues, and undermine the opponent’s claim of the uninvolved father.
Photograph albums show the history of parenting. Often they also show the closeness of one side of the family when relatives are shown at various family functions. Photo albums play an important part in custody litigation.
Photo albums that show the parties’ surroundings and lifestyle are also effective in the fight over furniture and artwork. Where appropriate, have the client photograph or videotape the valuable furniture, artwork, silver, crystal, china, and anything else worth fighting over, to let the judge get a feel for the items. It is also a good idea to videotape valuables at the outset of a case. If any of the items disappear, the tape will show the court what is missing (although not, of course, who took it).
A “Day in the Life” video of the children may also be effective. Such a video gives the judge a sense of the child and perhaps a sense of how the child interacts with the parent. While opposing counsel may object, claiming it’s a setup, most judges will view the tape and get their own feel for the accuracy of what they are observing.
In a custody case involving school-age children, most judges will want to know how the children are doing in school. While technically hearsay the reports will usually be accepted as records kept in the ordinary course of business. Other school records, such as attendance statistics, teachers’ notes, and standardized tests, are definitely hearsay and counsel will have to get them in through subpoena and testimony from the proper custodian of records who can provide the necessary foundational information required.
It is probable that even the original report card would be inadmissible because it contains the hearsay of the people writing on it (the teachers). The best way to introduce school records is through the proper custodian of records and at least one of the primary teachers who can describe the student, the manner of grading, etc. Most courts will allow the introduction of the report cards and it is rare that opposing counsel will make a hearsay objection to them.
Often teachers will be called as witnesses to discuss the involvement of parents or lack of it in the classroom. They may have school papers or letters from the opposition in their files that may be relevant. They are the only ones, however, who can present the evidence. In attempting to admit school records, counsel should be aware of the witness necessary to authenticate the records.
Charts are those exhibits that either already exist or are created for trial. Unless describing a scene, charts are summaries of voluminous materials and they are subject to special hearsay exception rules. In addition to laying the foundation for the source documents, the person preparing the charts generally must provide opposing counsel with access to that material. In some jurisdictions, however, such access need not be provided until the chart or other summary is offered into evidence.
If you are surprised by the chart or summary being offered, ask the court to require opposing counsel to provide you with the underlying source data for the preparation of the document and ask the court to reserve ruling on admission of the document until you have had a reasonable opportunity to review the document. It may be better practice to ask the court to allow you to review before the examination proceeds any further, as that will give you an opportunity to voir dire the witness and perhaps keep all reference to the chart or summary out of evidence. If you think you have a chance of doing so, ask the court to defer any testimony on the chart or summary until you have had a chance to review the source material.
If the chart or summary was a previously exchanged proposed exhibit and you did not ask for the source data before the start of trial, your request will probably not be granted. If there was no advance notice of the summary or chart, you have a reasonably good chance to have such a request granted.
Charts can be very effective in a financial case to prove a point, but must get past the rules of evidence to be considered part of the case. A chart created for trial is essentially hearsay since it is an out of court “statement” created to prove the truth of the matter asserted. Even with the maker of the chart prepared to testify it is still a hearsay document. A large chart, on an easel in the courtroom, may be utilized during testimony for example to compare annual income and expenditures for a subject company during the testimony of an appraisal. For the convenience of the court, copies of the chart may be offered to the judge. A chart may show retained earnings over the years, to demonstrate how they increased after the divorce action was filed. It may contain photos of the children with a parent. These are examples of charts prepared for trial.
Other charts may be blow-ups of existing charts, taken from previously created financial statements, reports, writings, report cards, or other pieces of demonstrative evidence that you want to highlight. Deciding what is important enough to highlight through charts is a strategy question. Charts can demonstrate comparisons of income, values, expenses, or appraisals more vividly than testimony alone can. They can be effective in the right case.
An example of a chart that may be developed in the financial case is one demonstrating that the family spent more than they claimed on their tax returns or that their assets would have allowed. The chart might look like this:
Gross income as reported on the 1040 $43,500
Federal taxes $6,454
State taxes $850
Medicare taxes $690
Total taxes $10,344
Net income $33,156
Change in savings account -$2,450
Total income available for family use $30,706
Total expenditures through the checkbook $38,489
Total expenditures paid outside of the checkbook $7,300
Total expenditures of the family $45,789
Unreported income $15,033
This chart, which can be created in the courtroom during testimony, immediately lays out for the court the income and expenditures, showing that there had to be cash that was unreported. The chart, of course, must refer to evidence and testimony.
Almost anything can be an exhibit, if it will advance the cause and lead to proof of the case. Beyond the standard tax returns, financial statements, expert reports, photos, and report cards, items can appear in a case that may prove just one small piece of the case. Each piece, or little brick, that can be proven definitively leads to the credibility of the ultimate wall of proof that you will argue at the end of the case. Having a “mountain of evidence”requires that each piece of the mountain be credible, and demonstrative evidence always appears credible. Examples include letters to the girlfriend, phone bills showing calls to the lover, credit card statements showing excess purchases, handwritten notes of assignations, anniversary cards in a common-law marriage case, prescription medication in a custody case, or even the diary of a child relating incidents with a parent, if these help to support testimony. A good interview by counsel may generate information leading to demonstrative evidence that may be used.
There are very few times when practicing law feels like artistry; closing argument is one of them.
Direct examination is the most important part of your presentation.
Lynne Z. Gold-Bikin concentrates her practice in the areas of divorce, custody, support, prenuptial agreements, and protection from abuse. She has authored or co-authored numerous articles on family law matters. www.wglaw.com
Stephen Kolodny is a family law expert and serves as a traditional trial lawyer in challenging cases involving high assets, high support, and disputed custody. The Managing Partner of KolodnyLawGroup in Beverly Hills, California, he has garnered a number of accolades.
Reprinted with permission from The Divorce Trial Manual, From Initial Interview to Closing Argument, available for purchase from: http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214317&term=divorce%20trial%20manual
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