Friday, 12 July 2013 12:40

"The Judge Didn't Look at my Evidence!"

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I often consult with people who did not hire an attorney to represent them during their family law case. Now that their case did not go so well, they are looking to hire an attorney to fix it. Usually, it is too late to do much. One of the most common complaints of people in such a situation it that the Judge did not look at their evidence during the trial. However, there is usually a clear reason why the Judge did not look at their evidence.

The first and most simple reason that the Judge did not look at a self-represented party's evidence is that he or she did not move it into evidence. I have consulted with several people who did not understand that simply lodging the exhibits (leaving the exhibits with the court's staff prior to trial so that the court staff can mark them as exhibits) is insufficient. During the trial, the proffering party must establish a foundation for the exhibit and move it into evidence. Talking about it and referring to it is not sufficient. Too often, self-represented litigants think that the Judge will look at their exhibits just because it has been marked and do not understand why that did not happen.

Another common reason why the Judge did not look at a party's evidence is because of the right to cross-examine witnesses. Self-represented litigants often bring written statements to court. The written statements always contain testimony from friends, family, neighbors, teachers, and the like regarding the virtues of one party and/or the many flaws of the other party. Such statements are testimony and the authors of the statements are witnesses. However, the other party has the right to cross-examine witnesses and they cannot cross-examine a piece of paper. This is the primary reason why judges almost never admit such statements into evidence. Other reasons include that such statements are almost never made under oath, that the judge cannot evaluate the person's credibility and demeanor by reading a statement, and the Best Evidence Rule, which requires the best form of any particular evidence be presented (such as live testimony instead of a written statement).

The third common reason why a judge did not look at a self-represented party's evidence is the party's failure to follow procedure and meet deadlines. People often think that if they just bring their evidence to court, the judge will look at it and understand their position. However, the rules of procedure require that parties disclose their evidence long before trial. Also, the court sets deadlines for not only disclosure, but also to lodge exhibits with court staff for marking. Generally, if a party fails to properly and timely disclose evidence, or fails to timely lodge exhibits with the court for marking, the court will not admit them into evidence. People often do not understand the reason for this, but the rules and deadlines are meant to prevent parties from unfairly ambushing each other at trial with surprise evidence.

These are three of the most common reasons why the Judge did not look at a self-represented party's evidence. An experienced family law attorney can help people avoid these pitfalls. Thomas A. Morton is an experienced family law attorney in Phoenix, Arizona.

 

 

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Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870
info@thomasamortonlaw.com

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