Archives: trial

The process of equitable distribution is multi-stage, often involving one or more conferences with a “master” specifically assigned to the case and who is an expert in equitable distribution. The master develops a recommendation which can be accepted by the parties; negotiated further, or; rejected outright by one or both parties who take exception to it and move the matter to an equitable distribution trial before a judge. The recommendation is just that – a recommended outcome – and while the master’s recommendations often closely mirror the outcome determined by the judge, they are not dispositive and they are not binding once the parties go before a judge.

Due to the propensity for the trial court to seemingly adopt the master’s determination, litigants can get confused as to the weight afforded the recommendation by the trial court or fail to understand that the trial court has no obligation to incorporate in part or in whole the recommendation. It is against this reality that the Superior Court recently issued a non-precedential (i.e., it cannot be cited as law) opinion highlighting the trial court’s ability to fashion an outcome dissimilar from the master’s recommendation.

The case, Waterstone v. Waterstone, Memorandum Decision, No. 444 MDA 2014 (Pa.Super. November 13, 2014), involves the trial court’s decision to deviate from the master’s recommendation on the allocation of marital debt. Wife received 60% of the marital estate and while the master allocated only 20% of the marital debt to Wife, the trial court – recognizing the disproportionate amount of the assets awarded to Wife – decided to allocate 40% of the debt to Wife. Wife’s arguments for a greater portion of the debt going to Husband are persuasive – she alleges that the bulk of the debt was due to gambling and repairs made to automobiles that he was keeping. Nevertheless, the trial court declined to consider the manner in which the debt was accumulated; it cited the well-settled law that since the debt was accumulated during the marriage it is subject to equitable distribution.

Wife’s reliance on the master’s recommendation was misplaced. Though both the master and the judge were considering the same equitable distribution factors, the judge is ultimately making findings of facts and conclusions of law. The trial court judge may make, in his/her discretion, determinations on credibility and evidentiary determinations. What may have persuaded a master at the equitable distribution conference may not have been admitted into evidence at trial.

Though it is unstated, the master’s hearing may well have been a non-record hearing; meaning there was no transcript taken establishing evidence on the record which could be relied upon at the trial level. Absent that record, the trial court would have been the opportunity to place on the record all of the essential facts for the trial court to consider. The trial court, affirmed by the Superior Court, made their own independent decision on the distribution of the assets and liabilities and Wife lost her appeal.

One of the difficult aspects of taking a complex case to trial is not the subject matter, necessarily, but the Court’s ability to schedule several consecutive days of trial.  Due to case volume, the court administrators can rarely carve out two or more consecutive days of trial without significant advance notice and, often, direct instruction and assistance from a judge’s chambers. As a result, a judge’s schedule may require you to have a week-long trial spread out over several weeks or months. Not surprisingly, attorneys, witnesses, and even the judges can lose some of the thread of arguments presented in such a disjointed fashion.

An alternative to trial is to take the case to arbitration.  An arbitrator is a third-party hired by the litigants to basically serve in the role of a judge-like finder of fact. The parties sign an arbitration of agreement and usually stipulate to certain ground rules for how they will handle the arbitration. For instance, some parties make the arbitration “binding;” in other words, the arbitrator’s decision becomes the law of the case. 

Another advantage to arbitration is to help limit costs through the arbitrator’s assistance in narrowing issues and avoiding some of the costs of broad discovery. Because the arbitrator is hired by the parties, he or she works on the litigants’ schedule – the arbitrator can set aside a full week for trial at a time that works for all involved and take the time to really hone in on issues without being at the mercy of the court’s availability. Rather than prolonged discovery schedules and waiting for trial, the arbitrator can help move the case to swift conclusion.

Eliminating the pressure of having to fit a two day trial into an afternoon before a judge helps the parties and the courts. Arbitration is one of many forms of “alternative dispute resolution” and by diverting cases off the Court’s docket and into arbitration, the parties are helping to free up the Court to adjudicate other cases.  There is the added advantage of the parties that unlike a court proceeding, the parties can agree to make the record and information disclosed within the mediation confidential.

Finally, utilizing an arbitrator is often like hiring a mediator. Having already reached an agreement to arbitrate and move the case out of court, it may also be possible for the arbitrator to help facilitate other agreements between the parties, be they discovery rules, stipulations of fact, or interim relief.  Agreements often lead to other agreements and once the parties start to work together, it may be possible to resolve the entire case. 

Even where settlement seems impossible, by moving their case into a venue where they will help set the schedule, parties will know that on a definite date they will have had their “day in court” and can expect a decision from a finder-of-fact. The certainty of those two elements, alone, may be its most attractive benefit.

Normal
0

false
false
false

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;
mso-ansi-language:#0400;
mso-fareast-language:#0400;
mso-bidi-language:#0400;}

(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.

 

Pennsylvania formalized the use of Parent Coordinators in custody cases several years ago when the Superior Court’s rendered their 2008 opinion in the case of Yates v. Yates. As part of the Yates decision, the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of discretion and did not constitute the delegation of judicial authority to a quasi-judicial body (i.e. the Parent Coordinator). The Superior Court also established the parties’ due process rights to a de novo review of the Parent Coordinator’s decision by the Trial Court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

 

The issue of a party’s right to a de novo review and what that review ought to look like was recently considered once again by the Superior Court’s December 18, 2012 opinion in the matter of A. H. vs. C.M., 2012 WL 658 6356 (Pa.Super.). In this case, the mother appealed the Trial Court’s decision not to conduct a de novo review of a decision of the Parent Coordinator and, instead, affirmed the decision without taking testimony or otherwise conducting a hearing on the record; basically, the Trial Court rubber-stamped the Parent Coordinator’s decision.

 

The first step in looking at what happened in the A.H. case is to consider how the parties are able to get their issues before the Trial Court. The basic procedure for appealing Parent Coordinator Orders was written in the Order appointing the Parent Coordinator to the case and allowed a party who disputed the Parent Coordinator’s decision twenty (20) days to file a Motion for review with the Trial Court. Upon filing for a review of the decision, the Trial Court would then make an independent determination as to whether the decision represents an abuse of the Parent Coordinator’s discretion or is contrary to fact or the law.

 

In the A.H. case, the mother made the appropriate appeal to the Trial Court, but found a less than receptive audience when she had her day in court; the mother was only given four (4) minutes by the Trial Court to make her argument. The Trial Court relied upon a summation by the attorneys of the Parent Coordinator’s decision in affirming the Coordinator’s Order. Interestingly, the Court recognized that Yates applied to this process, however, they essentially found that the de novo hearing was not needed in this instance. The Superior Court, in reviewing the appeal, determined that the Trial Court’s decision not to conduct a de novo review was wrong and that Yates firmly establishes that Parent Coordination has its own procedure, is subject to due process, and that the Trial Court may not deny mother a hearing de novo. By not giving her the opportunity to present her case in its entirety, the Superior Court found she was denied due process rights.

 

As a result, the Superior Court reversed the Trial Court’s decision with respect to mother’s appeal of the Parent Coordinator’s Order and directed that a de novo review be held by the Trial Court within thirty (30) days and that the Trial Court outline the Parent Coordinator’s decision in a manner consistent with the Superior Court’s holding in Yates. Worth noting is that the Trial Court may reach the exact same decision as they did the first time, but at least the mother will have had the opportunity to offer evidence into the record.

 

An interesting side note to this case is that it gives a glimpse into the level of frustration courts can reach when dealing with "frequent flyer" parties who are always bringing each other back to court. The Superior Court points out the reference to the Trial Court not wanting to see the parties back over "some talent show communication." I suspect these individuals were very familiar to the Trial Court judge and had likely litigated similarly inane issues which unnecessarily took up the Court’s time – which is exactly why a Parent Coordinator was appointed in the first place. Access to the Courts, however, is a fundamental right and the Superior Court cites the Pennsylvania Code of Judicial Conduct when addressing the comments from the Trial Court; such comments from the bench could have a chilling effect on people and discourage them from bringing important issues to the attention the court.

 

Parent Coordination can be a useful tool to address "talent show communications" but it is the procedure for being able to appeal those issues which allows for the overall process to effectively operate in a fair manner towards both parties. The opinion of A.H. v. C. M. affirms the Court’s decision in Yates (which, coincidentally, featured my colleague,

 

Natalie Famous, Esquire as the Parent Coordinator) and definitively establishes the due process procedure for addressing appeals of the Coordinator’s decision.

 

Referenced cases can be found at: Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008); A. H. vs. C.M., 2012 WL 6586356 (Pa. Super.)

 

 

(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.

Having been through a spate of trials and hearings over the past few months, it has come to our attention that many clients have little familiarity with how courtrooms actually work.  Ironically lawyers assume that clients know how trials work.  Litigation is what we do every day.  Clients also tend to assume they know more than they actually do.  Their experience with trial comes from television. Unfortunately, they miss a crucial distinction. Judge Judy and Judge Joe and all the other television judges are there to provide amusement. Real court is much more formal and is directed toward exploring all the relevant facts in a question and answer format.

In Pennsylvania, real court can come in the form of proceedings before a master or before a judge.  The difference is not terribly different if you are a litigant.  Masters are lawyers appointed by elected judges to take evidence and publish recommendations concerning support and property issues.  We are commonly asked whether these folks are “real judges.”  Technically, they are not because they have not been elected to their positions. But, they have their jobs because judges respect their viewpoints. Even though a master’s ruling can be appealed to the judge, many judges rely heavily on what their masters have recommended.

Whether trial is before a judge or a master, the procedure is usually the same. The party who filed first (the plaintiff) puts on his or her evidence first. Evidence usually comes in two forms.  Testimony and documents corroborating testimony. As the plaintiff goes first in starting the trial, the plaintiff has the right to choose what witnesses appear in what order. That can even include situations where the plaintiff starts the case by calling the defendant as a witness. It can be very unsettling to be told by your attorney that your spouse will proceed first only to find out one minute later that your spouse has elected to make you the first witness to testify.

Trial is like a baseball game.  Let’s assume that you are the plaintiff.  Your team is up to bat first.  Your testimony is conducted by your lawyer, It’s the lawyer’s job to cover with you every salient fact that needs to be put into evidence. Once your examination is completed, you cannot bank on getting another chance to tell your side of the story to the court. With rare exception, the excuse that you left the documents at home or at the bank or at Aunt Sadie’s does not work.  The court wants the documents when the witness it testifying.

Once you finish telling your story under the direction of your lawyer, your spouse’s lawyer gets to ask you questions in what is called “cross examination.” During what lawyers simply term “cross”, that lawyer can ask you questions that are leading. “Isn’t is true that…..” “You never told your spouse that you borrowed from your retirement account, did you?” The point of cross examination is to allow the opposing side to test your credibility or to show you documents or other evidence that may appear to contradict what you are trying to say.  It is often pointed and unpleasant which is how it is intended to be.  Every witness must be prepared to tell his or her story and to have that story challenged.

Once the other attorney has had his way with you, your attorney gets a second shot at asking you questions. That comes with a major limitation.  He or she must limit questions to subjects on which you were cross examined.  This “re-direct” examination is not an invitation to repeat the testimony you already gave.  It is to give your attorney a chance to clear up things where cross examination has created misunderstanding or ambiguity.  Take for example the question: “Did you ever discuss taking money from the retirement account with your spouse?”  You answered that you had not.  The fact is that you had not discussed the subject avoided the fact you had left the retirement withdrawal form on the table for your spouse to sign and that she had signed it. This testimony clears up the subject so the court has all the facts.  So your lawyer gets to ask you questions about this subject because it is ground not previously covered.

The other side can then “re-cross” you.  Again the limit is what you spoke about in re-direct.  With each stage the scope of the questioning is limited to the prior set of questions. Once the sponge called the witness has been thoroughly wrung out, it’s time for a new witness. The same rules apply for all witnesses.  It can be very annoying to be a party. Direct examination of a key witness (usually one of the two spouses) can go on for hours or even days.  That means you have to wait and wait for your lawyer to get a chance to cross examine your lying spouse.  It will be even longer until you get the chance to set the record straight with your own testimony.  Sorry. The rules are that the plaintiff gets to present his or her entire case before the defendant gets a chance to go forward. Some see that as a big disadvantage. All of that testimony goes unrebutted except for cross examination until it comes time for the defendant to present. But, remember, much as one party see advantage in being the first to present, the other party may see it as an advantage to be the last to present.

The defendant presents his or her case in the same way as the plaintiff. Direct examination of the witnesses followed by cross examination and then re-direct and re-cross.  Until the defense sponge is wrung dry just as the plaintiff’s was.

Is it then over?  Not quite. Suppose subjects come up in the defendant’s case that the plaintiff never discussed when he presented his case. The plaintiff is given a chance to rebut what the defendant presents.  Again, this is not a chance to rehash testimony already given. Rebuttal is limited to subjects that have not been fully explored.

Equitable distribution proceedings can be unwieldy because people own lots of assets and many of them (stock options, timeshares, nonqualified retirement plans etc) are complicated. All too often clients don’t really understand these assets as well as they should and that can make proceedings both long and frustrating. We have had witnesses with advanced education degrees confounded when asked what is reflected on their paystubs.  The key is to understand the process but, perhaps just as important, to understand the assets and the income that are unique to your case.

In these proceedings both sides are supposed to share their exhibits with the other side in advance of the trial.  It is usually productive to sit down with your attorneys in the days before complex hearings to review what you will have to tell the court and to try to anticipate how the other side will respond.

The new client walks in the door, obviously nervous about his or her case being the subject of a public trial in the county courthouse.

The first thing I tell them is that most third parties are not interested in their divorce case.

The second thing I say is that most of the cases I handle resolve without the need for substantial litigation, although there may be a hearing or two along the way.

However, most recently I have found that I am trying a few more cases than usual, and I’m winning.  I’m not saying that so that readers will think: I’ve got to have Charlie Meyer as my lawyer.  My real point is that, while I have written in the past on the importance of professionalism and civility in the practice of law, especially in domestic relations practice, I now am finding that lawyers are taking positions they cannot possibly defend and upon which they cannot prevail.

I am reminded of the time when, as a young lawyer, I met with an "experienced" (read "older") lawyer in his storefront office to discuss a support matter.  It obviously was a case which would be decided under the Guidelines.  But to my surprise, his position was that "he didn’t use ‘those’ guidelines".  Needless to say, we went to court, and the guidelines were applied.

This story is illustrative of what I am finding more and more in my practice.

Continue Reading Not Just Civility, But Reasonableness in Practice