One of the most difficult concepts for lay persons to understand in the law is the rule stating that only relevant evidence is admissible in judicial proceedings.  The concept would seem self-evident as no one would disagree with the principle that courts should not waste time considering irrelevant evidence.  But when faced with a case that directly affects them, lawyers and clients alike tend to want to blur the line because we want to prove to the world that our opponents are somehow unscrupulous or at least unworthy to win a legal point.

My own episode came last week in a custody proceeding where my client was fixated upon the fact that his spouse had been having one if not two different affairs in the 24 months leading up to their separation.  Needless to say, there is no denying the sting of learning that a spouse was involved in such relationships at a time when his or her partner thought that all was either well or, at least satisfactory. But in the custody conference we had with the court, I was having a difficult time persuading my client that the focus of our presentation needed to be on what contributions he had made to the rearing of his kids in contrast with the pain he was experiencing as the victim of infidelity that his two youngsters knew nothing about.

Then I read K.G. v. E.D. a decision by Judge Coonahan published in the Montgomery Law Reporter.  151 Montg. Co. Law Reporter 151 (2014).  The facts as reported in the case are fascinating.

A single woman decides in Fall, 2009 that she will explore what dating possibilities she can find on Match.com.  There she encounters a profile for a man describing himself as divorced.  You can fast forward the next chapter but suffice to say that by Spring, 2010 she is pregnant.  In late December a daughter is born. Father comes to the hospital the day after delivery and all seems to go well until it is time to provide information about him on the birth certificate.  If the opinion gets it right Father is willing to identify himself only with first and last initials and refuses to provide a social security number. Thus he ends up not identified on the birth certificate.

While marriage was discussed Father confines himself to visits to see Mother and daughter several times per week.  When the child is one month old he arrives with a legal form which he says is intended to confirm his rights as father.  She thought the form odd but signed it anyway and life went on.  When Mother’s maternity leave ended, Father said he would keep the child during the day at his home in Northern Delaware and arrange for a nanny.  The plan was supposed to be temporary until the couple actually established a common household but that wasn’t coming about.  At one point Father suggested he keep the child for several days in a row so that the baby could get used to the nanny.  When Mother tried to get the child back, her request was not immediately complied with.  On a day in early March, 2011, our couple meets at a restaurant in Maryland where Father tells her he is actually married but that the relationship is an open one.  He also revealed that the document Mother signed in late January, 2011 was a consent to allow Father and his current wife to adopt the baby.

By March 7 Mother files and emergency custody complaint.  Father responds with a petition to stay the custody action because there is a prior pending adoption underway.  The case then swings over to Orphans’ Court where the adoption is pending with Mother seeking to revoke her consent to adoption premised upon an allegation that the consent was fraudulently obtained.  A stay was briefly in place but that was quickly lifted and the parties entered into a consent agreement by which Father had primary custody and Mother had alternate weekends.

In October, 2011 the Orphans’ Court revoked the consent and dismissed the adoption proceedings. Father appealed that to the Superior Court without success and then failed in his request for the Supreme Court to review the order terminating the adoption.  The fact that the adoption proceedings were in the Superior Court appears to have prevented the family division from hearing the custody case. The custody case began in March, 2013 and continued for fifteen days concluding in August, 2013 with an award of shared legal and physical custody which both parties appealed.

Needless to say, in the custody proceedings, Mother came on strong with what must have been a fascinating record and set of judicial findings from the Orphans’ Court about the means and method Father employed to engineer an adoption of a child he wasn’t too pleased to be having in the first place. Father probably did not endear himself to the Court by appealing the orders terminating the adoption to the Supreme Court and testifying that he did not agree that the adoption was sought fraudulently.

Mother was not without her own baggage.  While she had held several conventional jobs, at some time either before or during the time she met Father she worked in the sex trade as a masseuse.  One also has to question what Mother was thinking when she signed a consent to adoption; a document that is not really that ambiguous in its content.  Mother testified that she had worked in retail and accounting management, areas where one is presumably required to examine documents with care.

Judge Coonahan wasn’t having any of this form a basis for her decision.  As she properly noted, in a custody proceeding the evidence needs to relate to the best interests of the child and not the character of the parties or conduct that is unrelated to raising a child.  As the judge put it at the outset of the trial: “It was a different inquiry {in Orphans’ Court}. {That Court proceeding}… had a different focus, a different responsibility. ….  I make my own credibility findings.”

As the Court observed, it was not there to redress Father’s purported wrongs in trying to secure an adoption.  The determination in custody court was directed to the relative abilities of the parents to perform in the role of parents.

It is clear from this opinion that Mother assumed that the findings of the Orphans’ Court and the Superior Court with respect to Father’s “adoption” proceedings so besmirched his character as to make him an unworthy parent as a matter of law.  Certainly, one would have to reach far to find anything about Father’s conduct or that of his real wife in pursuing adoption that speaks well of their character.  But that is not the standard.  The standard is how well do these people perform as parents to a child now just over three years of age.

One may argue that a person who is found to have sought an adoption wrongfully is, by definition, an unfit parent.  If you review older case law, you can find plenty to suggest that a parent who worked in the sex industry should also be labeled unfit.  We live in a different day and it is one where the word unfit must be reflective of conduct that affects the child both negatively and directly.

(Image Credit: technodiaries.org)

The Pennsylvania Supreme Court recently accepted the case of Commonwealth vs. Spence, on appeal from the Superior Court.  This criminal case involves the issue of whether eavesdropping on a speaker-phone telephone call constitutes a violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.  The outcome of this case will have a significant impact on the introduction of electronic communication evidence in all types of cases, including family law cases.

In this situation, the confidential informant was a high school student arrested for illegal possession of prescription drugs.  The student was enlisted as an informant to try to arrest the dealer.  In doing so, a Pennsylvania State Trooper with the Philadelphia Vice Narcotics Unit had the C.I. call the dealer; put the phone on speakerphone in the trooper’s presence and order Percocet, OxyCotin, and Xanax.  The dealer was to deliver them in person to a local Wawa.  Upon the dealer’s arrival, the police were waiting and he was arrested for possession of a controlled substance with intent to manufacture or deliver, as well as a count of possession of drug paraphernalia.

 

At the criminal trial, the Delaware County Prosecutor had asked for a mistrial because they realized they needed to utilize the direct testimony of the confidential informant.  During that break between trials, the defendant filed a Motion to Suppress the evidence on the basis that the State Trooper had violated the Wiretap Act and that any evidence derived from that violation was barred from introduction into evidence.  The trail court judge agreed; the District Attorney’s office appealed and the Superior Court judges agreed with the trial court, leading to another appeal to the Pennsylvania Supreme Court.

 

The impact of this decision will reach beyond criminal cases.  A decision upholding the suppression of this evidence would mean that any time a person overhears a conversation on speakerphone that the potential would exist that that information could be suppressed presumably due to the speaker’s lack of knowledge or consent to expose the info beyond the intended recipient.  Family law litigation often employs the testimony and evidence from individuals who have overheard conversations or recorded conversations (in person) with an unknowing speaker.  The difference between a legal recording and an illegal recording can be a very fine line; the outcome of this case will further shape how electronic recordings are used and whether they will remain a legally reliable method for collecting evidence.

 

Additional information about this case can be found in "The Legal Intelligencer," May 3, 2013, Volume 247, No. 86.

 

 

 We live in an age when both people and transactions cross state borders more and more often. Evidence concerning what occurred in Pennsylvania is often located outside of the four corners of the Commonwealth and thus, beyond the subpoena power of Pennsylvania Courts.  This is true for all forms of litigation, not just family law.

 

In the past, if you needed to secure documents or depose a witness outside our borders, you had to secure something called a foreign commission.  Essentially, one filed a motion in the Pennsylvania case to be permitted to conduct discovery outside of the Commonwealth.  Your opposing parties could contest the motion here, typically on the basis that the evidence was not relevant or a mere fishing expedition.  If your relief was granted, you next hired counsel in the jurisdiction where the evidence or witness was located.  That attorney would file a miscellaneous action in the foreign court (“foreign” meaning outside Pennsylvania) specifying the needed discovery, indicating that Pennsylvania had approved pursuit of it and asking for leave to proceed in the other state.  This action would be served on the witness or records custodian outside Pennsylvania.  That person or entity had its own right to ask that the relief be denied. Again, most often that would be because they denied relevance.

 

Effective December 24, 2012 Pennsylvania adopted the Uniform Interstate Depositions and Discovery Act (Act No. 183 of 212: SB 79 of the 2011 Session).  This act has been adopted by 28 states (including (DE, MD, NY, VA).  The purpose is to streamline the old cumbersome procedure by making it a one-step process.  If you the litigant in Pennsylvania need evidence in New York, you will need to follow the New York statute and engage counsel in New York to actually take the discovery.  But the “permission” part of the old foreign commission rules has been abandoned as far as the Commonwealth is concerned.  Similarly, if a New York litigant wants to take discovery here the New York litigant issues a New York subpoena to the Prothonotary in the county where the witness or evidence is located.  The Prothonotary is to “promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.” 42 Pa. C.S. 5335(b). The Pennsylvania subpoena is to conform to the foreign subpoena in content and have the identity of all parties and/or counsel, if represented. The statute expressly adopts Pa. R.C.P. 4009.21-.27.

 

Pennsylvania parties served with such a subpoena must file for a Protective Order under Rule 4012 if they wish to oppose the request discovery.  Otherwise, the re-issued foreign subpoena (now in its Pennsylvania form) is subject to the same powers as any other Pennsylvania subpoena including the right to enforce through contempt. 42 Pa. C.S. 5337.

 

The statute makes clear that parties in Pennsylvania may informally comply.  The remedy is limited to subpeonae issued by any of the United States, Puerto Rico, the US Virgin Islands and the District of Columbia.

 

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(Photo by Indi Samarajiva)

 

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

 

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

 

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

 

 

(Image: http://www.opencms.org/en/)

 

The practice of family law has seen a shift in discovery in recent years with the increased use of social networking sites by clients. There are increasingly easy ways to access and download the histories of websites like Facebook; the implications to clients is what they thought were private comments to “friends” do not evaporate into the ether of the internet, but are, instead, discoverable and producible information which may be used at trial. I discussed this issue before on our blog and how family law lawyers are reporting a major increase in the use of online evidence at trial.

 

Facebook’s ability to download the entire history of the account undoubtedly offers the largest trove of discoverable information, but Twitter recently announced that they are providing a method for downloading account histories, as well. Since people often discuss every aspect of their personal life with their private – and not so private – “friends” online, these account histories are proving to be important sources of information, particularly with many Pennsylvania courts emphasizing the importance of parties fostering positive relationships between the child and other parent. Consequently, long strings of negative comments about their ex-spouse (for example) could have an adverse impact on a parent later on in a custody trial when those comments are introduced into evidence.

 

The advice most attorneys give to their clients using social networking sites during a case is simple: STOP. Their next advice should be not to delete anything since the Court could take an adverse view on a party destroying discoverable information. Social networking is a double-edged sword of providing a community of support to people, but also becoming a forum to defame, insult, or criticize the other side. Knowing Twitter is joining Facebook and other sites in making accounts so easily produced should give people further pause about what they say online about the other party.

A recent Superior Court decision in a criminal law setting may have broad implications for civil cases as well, including those decided in family law settings.  In Commonwealth v, Koch, a man was charged with possession of marijuana with the intent to deliver.  At the time of his arrest he resided in the same household with his sister and another adult. The arrest resulted from a warranted search of the household where the police seized quantities of marijuana and two cellular phones.  Text messages were taken from the phone and transcribed.  The messages on the phone are what formed the basis of the charges relating to distribution of the illicit drugs.

When the cell phone was confiscated the defendant acknowledge the phone to be her device.  The officer then downloaded the text messages, some of which he interpreted to be related to delivery of illegal drugs.

 

At trial the defendant sought to exclude the text messages because they had not been authenticated as her messages even though downloaded from her cellular phone.  The theory behind this is that it is possible for other individuals to log on to a telephone or computer of another and make use of it for their own purposes.  What gave this theory more strength was the fact in some of the messages recorded on defendant’s phone the defendant was referred to in their third person; something most people don’t do themselves.

 

The trial court admitted the text messages as properly authenticated and the defendant was convicted.  This appeal followed.  The Superior Court began by noting that text messages are electronic documents and subject to authentication before they may be admitted for the truth of what they contain.  Where no witness can be found to authenticate the document by saying he or she saw it created or published circumstantial evidence may suffice.  Some times documents (electronic or otherwise) can be authenticated by their own content or because the facts related are known only by the sender.

 

In this case the Court noted that it was not uncommon for people to have access to the electronic transmission devices of others.  The majority of state appellate courts that have examined this issue have decided that the fact a message is identified with a unique email address, does not, without more allow its admission as a statement by the holder of the email account.  Here the court noted that text messages, unlike email, are unique to the cell phone from which they are transmitted.  An email can be published from almost every computer.

 

The prosecution conceded that not all of the text messages came from the defendant even though it was clear that they did come from the defendant’s phone.  This appears related to the texts referring to defendant in the third person.  In this case while the prosecutor could show that the defendant had physical proximity to the phone at the time the arrest was made, this alone was not sufficient to render the content of the message as authentic.

 

In most cases parties admit to sending texts or email early on in the proceedings.  But without that admission, the burden appears to fall squarely on the party seeking to put them into evidence to come forth with a solid foundation linking the transmission to the person alleged to have made it. In this case, because that link was not made, the conviction was vacated on the charge of intent to deliver and a new trial ordered.

 

Although this ruling came about in a criminal case, the rules of evidence and Pa Rule 901 in particular affect all civil cases as well.  If the party confronted with the message acknowledges it as his or hers, authentication is established by the party.  But if the witness is not obliging, it will fall to the attorney to make the electronic transmission of whatever form “stick” to the person who owns the cellular device or electronic address.

A recent article by Harvard physician Atul Gawande in the New Yorker discussed how poorly our society does in addressing end of life decisions where a person is afflicted with a diagnosis of terminal disease.  These are questions we don’t like to deal with.  And as the article poignantly illustrates, neither the patient nor the family wants to be candid about what is really going on. The result is often the employment of heroic measures that might possibly produce a favorable outcome but which are certain to make the patient’s life miserable. The author proposes that in these cases, patients are afraid to tell family members that further experimental treatment is not what they want out of fear that the family members will judge them a “quitter.”  Family members fear discussion that suggests abandoning further treatment will be construed by the patient as a signal that the family is tired of dealing with the illness.

Dr. Gawande has noted that as recently as thirty years ago, many physicians would not tell their patient how grave an illness was. This prompted us to consider whether attorneys and their clients are guilty of the same lack of candor when managing litigation.

Litigation of any kind is an evolutionary process where facts are collected and ultimately presented to a judge or jury for evaluation and decision.  In a family law context, clients tell us their vision of the world.  From that start, we try to collect evidence that supports the theory of the case.  Many times, the collection of evidence may change the strength of the client’s theory.  In some situations what sounded like a strong case on interview fails because there is little to no evidence to support it.  In other instances, as attorneys we see the evidence as supportive of our theory of the case but the trier of fact (usually the judge or hearing officer) telegraphs that he or she does not see the case as having the same merit we do as advocates.

In either case, either unsupported facts or an unpersuaded judge, there needs to be a frank reassessment of the litigation between attorney and client.  This is a difficult process because clients often don’t see weaknesses in their cases and when confronted with them, there is a tendency on the part of clients to suggest that the lawyers is losing faith or misled the client to begin with.  There are times when it makes sense to “tough out” the litigation process and go to trial and or appeal from an adverse ruling.  This requires frank discussion throughout the decision making progress.  Without it, the risk is high that a bad decision will be made and that the next dollars invested in the litigation will be poor investments.

As we have written before, every litigated matter involves an investment.  As with any other investment, it comes with cost and it comes with risk.  No case is a certain winner.  As you proceed with any such investment clients need to ask the questions that need to be asked.  Is the case growing stronger or weaker premised upon the evolution of the facts and the rulings in the case before trial?  Do not fall prey to the kind of blindness to which Dr Gawande alludes where you the client are not being realistic about the range of outcomes and their relative likelihood. Litigation is not life threatening in ways that disease can be. But it is no fun to buy lots of it when the outcome will only drain your pocket and leave you unhappy.  That’s a question clients need to ask if the case takes a bad turn.  Our reaction is often to just throw more at it and threaten to do more and not less. This is the American way. It’s what made Stephen Decatur and Davy Crockett folk heroes.  But, it is worth noting that when all was said and done the outcome for Crockett is not what he intended.