There are BIG changes coming to family law courtrooms that every litigant needs to be aware of. And we all have Mr. Elkins to thank (tongue in cheek)…
Taken directly from the published case of Elkins v. Superior Court (2007) 41 Cal.4th 1337, in which “Petitioner Jeffrey Elkins represented himself during a trial conducted in marital dissolution proceedings instituted by his wife, Marilyn Elkins in the Contra Costa Superior Court. A local superior court rule and a trial scheduling order in the family law court provided that in dissolution trials, parties must present their cases by means of written declarations. The testimony of witnesses under direct examination was not allowed except in “unusual circumstances,” although upon request parties were permitted to cross-examine declarants. In addition, parties were required to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial.
Petitioner’s pretrial declaration apparently failed to establish the evidentiary foundation for all but two of his exhibits. Accordingly, the court excluded the 34 remaining exhibits. Without the exhibits, and without the ability through oral testimony to present his case or establish a foundation for his exhibits, petitioner rested his case. As the court observed, the trial proceeded “quasi by default,” and the court’s disposition of the parties’ property claims demonstrated that the court divided the marital property substantially in the manner requested by petitioner’s former spouse.
Petitioner challenges the local court rule and trial scheduling order on the grounds that they are inconsistent with the guarantee of due process of law, and that they conflict with various provisions of the Evidence Code and the Code of Civil Procedure. Respondent court counters that the promulgation of the rule and order comes within its power to govern the proceedings before it, and that its rule and order are consistent with constitutional and statutory provisions.
We need not reach petitioner’s constitutional claim because, as applied to contested marital dissolution trials, the rule and order are inconsistent with various statutory provisions. 1 As we explain below, we reach this conclusion because, pursuant to state law, marital dissolution trials proceed under the same general rules of procedure that govern other civil trials. Written testimony in the form of a declaration constitutes hearsay and is subject to statutory provisions governing the introduction of such evidence. Our interpretation of the hearsay rule is consistent with various statutes affording litigants a “day in court,” including the opportunity to present all relevant, competent evidence on material issues, ordinarily through the oral testimony of witnesses testifying in the presence of the trier of fact.”
The Elkins holding resulted in a task force being appointed, whose purpose was to study and propose measures to assist courts in improving efficiency and fairness in family law proceedings and ensuring access to justice for all family law litigants. Our local and well-esteemed family law and appellate specialist, Leslie Ellen Shear, was part of the Elkins panel. After several years of task-force studies that solicited commentary and recommendations from family law attorneys and litigants state-wide, the results have been memorialized into our new legislation known as AB 939. AB 939 seeks to dispel or correct the public perception that litigants are not being given an opportunity to “be heard” and thusly, these litigants tend to walk away from their courtroom experience feeling like they were treated unfairly.
The first changes set forth in AB 939 are in effect as of 1/1/2011. These changes include 1) allowing live testimony at hearings absent a stipulation or finding by the court of “good cause” to rule by declarations; 2) Witness lists must be filed and served along with the filing of an OSC or motion; 3) Declarations must include foundation and hearsay exclusions; 4) Declarations are limited to 10 pages for moving and responding declarations and 5 pages for reply declarations. Basically, almost every OSC or motion will be treated as a mini-trial on that issue, and though it remains to be seen, the difference between a temporary order and a permanent order may begin to blur under this new AB 939 legislation. There are additional changes effective July, 2011, and again January, 2012 as well that are not being addressed in this blog.
What this means for litigants is that a self-represented litigant must know and abide by the California Evidence Code during hearings. They will no longer be cut any slack by our judicial panel that is now handcuffed by Elkins/AB 939. Even a great many family law attorneys will be required to dust off their Evidence Code’s and refresh their recollection on hearsay exceptions.
Now, more than ever, a litigant should strongly consider hiring a competent family law attorney, rather than try to navigate this storm without a properly trained captain. Its an old saying, but still relevant, “A man who represents himself has a fool for a client.”