Where’s the Proof?

Where’s the Proof?

A Primer on Evidence Collection and Presentation in Family Law Cases

By: Dan Ferency

When a person walks into an attorney’s office for the first time for advice about a potential divorce, custody disagreement, or other family law issue, he or she is an expert about his or her own current situation, past experiences, and personal story. Despite this fact, a family law client is usually not thinking about what and how to gather the evidence necessary to prove their “story” in court or create a solid foundation for a well-informed settlement of their case. While evidence collection and fact finding can be the most difficult aspect of an attorney’s job, the path toward building a strong case in a family court can be broken down into the following categories:

1. You don’t know what you don’t know

Often in a family or household, one spouse or parent is in complete control of the finances, legal documents, or other paperwork necessary to begin building a case. A client may have no idea whether or not they or their spouse has a retirement account, a will or trust, or an employer-sponsored insurance policy, simply because the other party had the primary responsibility for managing those aspects of family life. Gathering any and all available information about finances and assets prior to consulting an attorney is important, but an attorney should be able to provide clients with a list or questionnaire of potential information that a client may not be familiar with in the early stages of the process. The kind of information that is relevant in divorce case is limited, and an attorney’s first job is to help you sort through which information is important and which is not.

2. You know it but you can’t get it

After identifying what information may be out there, the problem of one party’s control over information can arise in another way. What happens if they won’t turn over the information? This is where what the legal process calls “discovery” comes into play, governed by MCR 2.300 et. seq. One of the many (and most interesting) ways in which an attorney is useful is that only an attorney has the variety of legal tools at his or her disposal to obtain evidence from people who aren’t willing to turn it over. As to parties to the case, an attorney can send written questions called “Interrogatories” or requests for documents called “Requests to Produce” which must be answered within 28 days. As to third parties, an attorney can send a subpoena to produce documents or appear to answer questions. A subpoena functions in the same manner as a court order, and contempt proceedings (resulting in possible jail time) can be initiated when a party fails to comply with a subpoena. Finally, an attorney has the authority set up a deposition, a mini-legal proceeding where a party or a third party witness must appear and answer questions under oath.

3. You can get it, but it’s protected

While the legal tools described in the previous category are often necessary in a divorce case, it doesn’t always guarantee that you will get the information requested. State and federal law protects a variety of otherwise discoverable information. You may have heard these protections described as “privileged” information. Some common privileges include physician-patient privilege, psychologist-patient privilege, medical records under HIPPA, attorney-client communications, cleric-congregant privilege, etc. Whether the privilege applies is almost always fact-specific, and the privilege can be waived by the holder of the privilege. Before seeking or turning over documents that might be privileged, it is important to consult with an attorney about whether the privilege applies and who holds the privilege.

4. You have it, but you can’t use it

After you have gathered all potentially relevant information in discovery, the next question is whether or not the information is admissible in court. The two most common forms of evidence are testimony (statements by witnesses under oath) and documents. Under the Michigan Rules of Evidence (MRE), specifically MRE 402, all relevant evidence is admissible unless otherwise provided by the rules. There are many rules that govern admissibility of evidence. Some rules allow certain types of evidence, and others preclude them. One of the most widely known of these rules is MRE 802, which precludes the admission of hearsay. While the hearsay rule has given many a law student fits, the central idea is that the court does not let people (or documents) come into court to testify about what other people say or have said outside of court. The court expects to hear the information from the individuals themselves. Because the central idea of the hearsay rule is based on the premise of reliability (that a statement about what someone else said outside of court is both difficult to corroborate and easy to fabricate), there are a number of exceptions for statements or documents that are deemed “reliable” in another way. This area of the law is rather technical, and is the area where the experience of a good trial lawyer is most helpful.

5. You can use it, but is there enough of it?

When submitting evidence at trial, other than questions surrounding admissibility, the last two issues are typically (1) whether or not you have submitted enough evidence to cover each element of all of the outstanding issues, and (2) whether or not the evidence submitted is persuasive. In the law, these two burdens are known as the burden of production and the burden of persuasion. To put it in another way, a good lawyer always asks the following questions during and after a trial:

(1) Have I covered all the bases? and,

(2) Have I done so convincingly?

Credibility often plays a major role here when the evidence is oral testimony, as much deference is given to trial judges in making determinations about whether a witness is believable. When two stories about the same series of events are being told, the judge’s ultimate job is to sort fact from fiction, and exaggeration from truth. As Mark Twain once said, “If you tell the truth, you don't have to remember anything.”