Last week I finished up a case I had been working on for some time as a Referee, that is, a “private judge”, who the parties and attorneys to a case hire to conduct the divorce proceeding outside of the courthouse. When the Referee decides a case she or he acts just like a sitting judge does, and then the “Referee’s Report” goes to the court, and if finally accepted there, gets entered as the official divorce judgment.
In this particular case, there had been lots and lots of back and forth emails, texts, notes and the like about kids’ visitation exchanges, summer vacations, extracurricular activities, and similar topics.
All of these, literally hundreds of pages of documents, were introduced into evidence at the proceeding. Some of them were polite, and showed the parents at their best. Others, not so much. A small minority were very revealing of how the parties treated each other when they thought they were not in public view. It was not a pretty picture.
So, that led me to think – don’t people realize that when they have a court case going on that they are living under a microscope?
Courts are often limited in what the judge gets to hear; some things are not admissible in evidence because they are not relevant; that is, the statement or purported fact could, however interesting, could not have any impact on how the case gets decided. Still other things may be relevant, but not admissible. For example, in most court cases an out of court statement can’t be repeated in court to prove its contents; that is hearsay.
But statements of parties in family law cases, however and wherever made, are almost always at least potentially relevant, as evidence of the party’s character or intent. They are also usually admissible when offered by the opposing party under the “Admission by a Party Opponent” exception to the hearsay rule.
Fortunately, unless you are running for elected office, or are a movie star, neither you nor I usually live our lives under the gaze of a giant microscope. But, if you have a family case going on, you are right in the target circle. Want to relieve frustration by posting on Facebook how much you hate your former partner’s new love, and feel like killing her? Not a good idea.
How about leaving an expletive filled message on your co-parenting partner’s answering machine, telling them what “A Stupid F***ing A**-****” they are? Umm, that’s likely to make an impression when it’s replayed in court.
All right; no Facebook, no telephone threats. How about just telling them what you really think at the next visitation exchange? “ I hate you, and your weird family, and I always have!” Not a good idea; your child is likely to overhear, plus, you may get treated to a dramatic recreation of it at your next custody hearing. But, all of those things happen every day. As a Referee, or a trial Judge, I often say to myself, “What was she (or he) thinking??”
The best example I ever saw of this was during a trial of a Protection from Abuse hearing. The husband was representing himself; doing what he thought was a bang up job. He was cross-examining his wife, and finished up with his big GOTCHA question:
“When I threw all your stuff, and all of our daughter’s stuff, out on the lawn, what was I thinking?”
After a moment, the wife looked at him and said; “Well, George, I’m sure I don’t know.”
And I thought to myself: “And so, when he asked that question, WHAT was he thinking? And what did he think she was going to say?”
The takeaway here is simple. Just like they say on TV, “Anything you say can and may be used against you at trial.” So be nice. If you can’t say anything nice, don’t say anything at all. And if you can’t live with that rule, at least don’t put it on your Facebook page.
Senior Policy Advisor