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May 04, 2022 From the Editor in Chief

From the Editor in Chief Spring 2022

Kathleen A. Hogan

In an area of practice often marked by opinions, emotions, speculation, and convoluted financial calculations, the rules of evidence define the boundaries, obstacles, and rest of the framework for the playing field. The rules of evidence also provide the reason why so many TV courtroom dramas are so wildly different from real life—but that’s a topic for a different day!

Evidence is one of the classes that we all took in law school. However, I’d venture to guess that most of us didn’t really understand what it was all about until we had to apply the principles on the spur of the moment in a real courtroom. As well, it isn’t all about objecting. The very foundation of presenting a client’s case hinges on what is admissible. Even if the goal is a negotiated resolution, the incentive for the other side to consider concessions or compromises is likely to be driven at least in part by any perceived downside risk of litigation. Not many negotiators will throw in the towel if they realize the claims of the opponent are entirely unsupported by any admissible information.

Some domestic relations practitioners take the kitchen sink approach to litigation—throw everything out there and see what happens. Christy Albano in her article “Relevant vs. Unfair Prejudice: Federal Rules 401 and 403” provides a guide for both those who might be tempted to throw in everything and those who have to deal with such tactics. Her article helps answer the question of what constitutes relevant evidence and how courts across the country are weighing the probative vs. prejudicial value of evidence.

Mitchell K. Karpf offers a general overview and guide to privileges that often arise in the context of family proceedings, from attorney-client privilege, Fifth Amendment privilege, marital privilege, and the privileges applicable to various professionals, among others.

In “Direct Examination,” Ike Vanden Eykel breaks down ways you can develop effective direct examination for your next courtroom encounter that keeps the judge engaged, including outlining your objectives, witness training, animated oral delivery, use of the courtroom, and much more.

Brendan Hammer, in “The Tao of Cross-Examination: Reconceptualizing Approaches to Effective Inquiry,” reframes established approaches to effective inquiry. He illustrates, through clever cultural analogies, how cross-examination presents a fertile field for the lawyer willing to reconfigure tactics and approaches away from confrontation, argument, and attack and toward building concession, commitment, and agreement.

In his article “Expert Energy: Effective Use of Experts in a Family Law Case,” Steven N. Peskind encourages family law attorneys to harness the power of experts and to think of novel ways that they can help you either as a consultant or as a testifying expert while you serve as their translator who can persuasively present their expert testimony in a way that moves the court in your favor.

Spoliation is a form of discovery abuse that occurs when a party has a duty to preserve evidence and conceals, alters, or destroys evidence that it could have reasonably preserved. Analyzing a claim of spoliation is a two-step process, as detailed by Drew Williamson in his “Spoliation” article.

It seems like everyone—lawyer and non-lawyer alike—thinks they know what “hearsay” means, and most of them are at least partially incorrect most of the time. “Revisiting and Rethinking Hearsay” by Steven K. Yoda provides a high-level heuristic of the hearsay rule and its many exemptions to help you mentally organize the hearsay rule.

Mudita Chawla gives several helpful pointers for sharpening your opening and closing statements toolkit and avoiding pitfalls in the process in her article “Objections to Opening and Closing Arguments and Whether to Make Them.”

Attorney, licensed private investigator, and computer forensic expert Nicholas G. Himonidis reminds us about the temptation clients may feel to play “gotcha” with an estranged spouse and the ramifications for both clients and attorneys when evidence is obtained illegally in “The Admissibility of Illegally Obtained Evidence in Family Law Cases and Related Ethical Issues.”

A picture can be worth a thousand words. Mudita Chawla describes how demonstrative evidence can either be admitted as evidence or used purely as a visual aid to assist the court and when it can especially useful in your case, such as when complex testimony or entered exhibits may be difficult to understand on their own in “Show and Tell: Summaries and Demonstrative Evidence.”

Contrary to the “trial by ambush” approach favored in popular novels, there is much to be said for heading off potential problems in advance or at least flagging them for the court. In “Actions in Limine” Jennifer S. Tier explains what motions in limine and trial briefs are, strategic considerations when you are filing them, and the pros and cons of filing motions in limine.

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Kathleen A. Hogan is a principal with Hogan Omidi, PC, in Denver, Colorado, and Editor in Chief of Family Advocate.