In a recent case in front of the Superior Court for Ocean County (Toms River), E.C. v. R.H., on August 11, 2015, Judge Jones was faced with a typical situation that occurs in domestic violence cases. What happens at a trial when a person wants to prove their case using text messages, e-mails, social media evidence, or other photographs or videos or other things like photographs or videos directly from his or her cell phone?
This case was a typical situation. Plaintiff and Defendant were dating previously, Plaintiff now says that Defendant has been harassing her by sending her many un-wanted text messages and social media messages and voice mails. These are filled with profanities and derogatory and upsetting comments. She wants to be left alone and wants a Final Restraining Order.
Plaintiff brought her phone to trial, and wanted to introduce into evidence the contents of her cell phone. The question is how to appropriately accept evidence from a cell phone into the Court record.
The problem is obvious. The Rules of Evidence and court procedure have not kept up with modern technology. The evidence on the cell phone could be extremely important, could clearly show, one way or the other, what has taken place. Multiple cell phone text messages, e-mails, voice mail messages could show offensive inappropriate and harassing communications by the Defendant. Not just the recently sent materials, but much older communications could help the Judge to decide whether or not the Defendant is harassing the Plaintiff.
The problem is how to get the evidence out of the cell phone and into the court room.
First, there must be some way to preserve the image on the cell phone, so that the Defendant can see it in court, and so that there is a record of what was shown to the Judge, permanently kept in the Court’s case file. Simply having the Judge look at the cell phone, letting the Defendant look at it briefly, and then handing the cell phone back to the Plaintiff will not be enough.
Second, a cell phone has a very small screen and it is only possible to see a small portion of a document or a picture at one time. It is difficult for a Judge to read lengthy information from a cell phone screen, piece by piece. It will be equally difficult for the Court to review and compare various messages side by side. The cell phone screen is simply too small for this. If there is a continuing series of messages back and forth, the Judge will end up looking at one part of one message at a time, and scrolling up and down and up and down. This is time consuming, and likely to cause mistakes.
Third, the procedure of letting the Judge review material on the cell phone prevents the Defendant from seeing and understanding what the Judge is looking at. This is not fair. The Defendant must be able to see what the Judge is looking at, what is being produced as evidence. That is basic fairness in any trial.
Passing the cell phone back and forth between the Plaintiff and Defendant would take a great deal of time, and cause other problems.
Fourth, if one party reads a text or e-mail into the record, and the other party does not have a hard copy to simultaneously read and follow along, there is no way to check the accuracy of what is being said.
Fifth, as far as voice mails, it is difficult sometimes to hear exactly what has been recorded. A compact disc recording or a transcript would make it possible to preserve what has been said on that voice mail.
Sixth, after the parties finish testifying, the Judge might want to review carefully all of the messages and other items put into evidence. If no hard copy is printed out, and there is nothing except the Plaintiff’s cell phone available, the Judge will not be able to review the evidence.
The Judge in this case decided that for future cases, both parties should be told ahead of time that they will have to print out onto paper all e-mails, texts, social media messages and photographs. Audio and video recordings should be duplicated onto a disc.
The Judge then concluded that in many Domestic Violence matters neither party has a lawyer and very often they do not know what is required to prove their claim, or defend a claim. All parties to a domestic violence case have to be informed ahead of time that they should print out all text messages, e-mails and other cell phone materials, onto paper, and bring three copies.
I suspect that in many, many cases, Judges will end up telling the parties that they must print out the cell phone contents, and then adjourn the case for one or two days to allow this to happen.
In some cases, neither party has the money to be able to print out all of the evidence. It does cost some money to print out cell phone contents onto paper, and many people who end up on domestic violence court simply do not have a computer printer available, or the resources and money to get the job done. The Judge concluded that in some cases, the Court could decide to dispense with hard copies of some of the materials or even most of the materials. Instead, the Judge could describe carefully what the items are that appear on the cell phone. However, in the ordinary circumstance, the person who wants to come to court and prove their case from the cell phone, must print out that material onto paper, and show that plus the cell phone to the Judge at trial.
I have handled many domestic violence trials. What this judge is describing in this case is absolutely typical. The Judge’s solution, and his analysis are absolutely spot on and correct.
If you face a situation like this, it would be very smart to print out your evidence ahead of time, and have three copies available, plus your cell phone. You give one copy to the Judge, one copy to the Defendant, and one copy for yourself to look at while testifying. What takes place in Domestic Violence Court is extremely important, and may save the Plaintiff from serious injury or harm from the abuser. The results are also extremely important to the Defendant, who is being accused of domestic Violence. It is very important to be well prepared when going into court on one of these matters. Of course, a good lawyer can help a great deal.
Here is a question I received on one of the "Ask The Lawyer" websites that I contribute to, and my response. I have seen at least 20 variations of this question. Maybe you can picture the steam coming out of my ears. I hope this young mother is listening, because she can do a hell of a lot better for her kid. She should NOT let her dead-beat husband off the hook. It may get him out of her life, but it will leave her and her child struggling to survive.
LEGAL AREA: CHILD CUSTODY
STATE: NEW JERSEY
Question: Do I have to sit in front of a judge to get custody of my child and how long does this take to do?
Question Detail: I have a 5 year-old. I have full custody and placement. The father doesn't see her or call her and would like to sign off all of his rights. Does someone else have to sign on, or can it be just given to me? And do I have to sit in front of a judge to do this? How long does this take to do? He said he'll only do it if he doesn't have to pay child support which he will only pay for 1 year, when she will be 6 years old. We should be divorced in 4 months; he and I split when she was just 1 month old.
You are doing this all wrong. You duty, your obligation is to do what helps your child, not what is easy for you.
A few basics:
1. You raise that child, and give her the best life you can. That is what parents must do.
2. He is the father, the parent of that child. He also MUST follow rule #1. This means:
3. He pays child support, period. No discussion.
4. No pay? Go to jail. And stay there. Then get out and work to support that child.
5. He has no job? Get a job. If not, see rule #4.
6. YOU do NOT let go of his duty to pay child support, because doing that would make your child's life worse. See rule #1.
That child deserves a lot better father than this idiot. But at least he can pay for money to help you buy the things that his child (your child) needs for a good life.
Got all that? Good. now take him to court, get a court order and make him pay to support the child that he brought into the world.
Maybe he will even become real man, and become a father to that child.
It is true that almost none of you will be accused by DYFS (the New Jersey Division of Youth and Family Services) of not properly caring for your child. What I am about to talk about is still important to you, because it shows how a person can, by their own foolish actions, make it harder for the Judge to understand what is going on and make the correct decision.
If you are involved in a divorce or other court matter, you have to keep this in mind. You have to be careful to not be your own worst enemy in Court.
A couple of years ago, the Court decided the case N.J. Div. Of Youth and Family Services v. N.D. and E.W. The Judge (who is an experienced, intelligent and careful Judge) who took a child away from his mother and gave him to his father to raise. The Appellate Division of the Superior Court decided that the Judge made a mistake, that the Judge had not given the mother and her lawyer fair warning (“proper notice”), and “due process of law”.
Put that way, it seems simple.
It is not, and you should understand how the mother’s actions helped to strongly push the Judge in the wrong direction.
A child, “T.W.” (the Court only uses initials to protect privacy in these cases) was born in 1996 to the father “E.W” and the mother “N.D.” who never married. The mother raised the boy. DYFS was first called in 1999. From then to now, DYFS received three complaints from the father, two from the father’s mother, one from the mother, one from a neighbor and five more from others. Most were thrown out, two were pursued by DYFS but the boy was returned to his mother. The Court had told these parents to settle their custody fights without calling DYFS.
This was a troubled family right from the start.
In February 2008, DYFS took the boy (then 11 years old) away from his mother. DYFS did plan to return him to his mother when the problems were solved. The problems were bad, but not horrible. The mother’s apartment was heated only by the oven for over a year, and had electricity only from an extension cord illegally plugged into a socket in the basement of the building. The mother left the boy alone for three or four hours on days when she went to night school.
Now, none of that is good, but it can be fixed. The mother needed to pay her heating and electric bills, and arrange to not leave the boy alone. It makes sense for DYFS to take action to protect the boy. It also made sense to give him back to his mother when that was all done.
Things got off track, and DYFS had good reasons to become irritated with the mother. When questioned by the DYFS worker, the mother would not talk and told her to leave. The mother failed to appear for meetings, and would not cooperate with DYFS.
In July, five months later, the mother appeared for a trial (‘fact finding hearing’), but no trial was held. Instead, the mother and her attorney (she had a free attorney appointed by the Court) agreed in front of the Judge that DYFS should continue to supervise the child because there were still ‘child welfare concerns’, but also that there were ‘no findings of abuse or neglect’.
DYFS psychologists had talked to the child, who said he did not feel safe living with his mother. The Judge ordered family counseling before the child could be returned to his mother. The Judge ordered both the mother and the father to attend individual counseling before family counseling. The mother would not comply with individual counseling, and wanted family counseling to start right away DYFS became more irritated with her actions.
There was more conflict between the mother and the father, and the boy told the psychologist that this hurt him. The mother was fighting with the father in front of the boy; the father was fighting too.
In January 2009, DYFS filed a report recommending that the boy be given to the ‘non-offending parent’, the father. This was a direct result of the mother’s own actions.
In February 2009, the Judge had DYFS’ recommendation, and ordered that the boy be ‘reunited’ with his father. The Judge did grant the request by the mother to challenge this decision and hold a hearing and let witnesses testify.
A trial was held, and the DYFS psychologists testified that the boy was happy living with his father, and doing well. The Judge decided it was best for the boy to continue to live with his father.
It is true that the Judge just lost sight of what the Judge was supposed to do in a case like this. The Judge decided in January 2009 to do what was best for the child, forgetting that the child was happily living with his mother until DYFS took him away in February 2008.
But what makes this case worth talking about is the harm that the mother did to herself by refusing at every step along the way to cooperate with DYFS and with the Court’s orders.
When you ask the Judge to decide an issue in your case, you can be very sure the Judge will try to listen carefully to all the evidence, apply the law accurately, and make the correct decision.
But remember that the Judge is handling dozens of cases at the same time, all the time. Like all the rest of us, Judges can become confused, or lose sight of important points. And the Judge will give a lot of weight in custody cases to the recommendation of psychiatrists, social workers, or psychologists. In financial disputes, the opinions of accountants, employability experts and other professionals counts for a lot. And if DYFS, or Adult Protective Services is involved, their opinions will be very important. You want to cooperate with these people, not fight them.
Trials are always complicated. You and your lawyer want to keep it simple, so the Judge can understand it. Keep it accurate, so the Judge does not believe you are a liar and disbelieve what you say. Above all, keep it as short as possible. You will increase the chances that the Judge will be able to understand it all, and get it right in your case.
In some divorce cases, it might be better for you to go broke before your spouse does. It might actually put tens of thousands of dollars in your pocket!
A recent case shows that it is sometimes better to go broke, before your spouse does, when you are getting a divorce. IN RE: Kane, No. 09-4254, in the United States Third Circuit, shows what I mean.
Shannon Kane filed for divorce from Thomas Kane in New Jersey, then moved to New York. After that, she filed for bankruptcy. She listed Thomas as one of her creditors, for “possible obligations arising out of matrimonial proceeding” with a dollar value “unknown”. She listed her divorce proceeding in her papers. In the divorce, she was trying to get alimony, equitable distribution of assets, and attorney’s fees.
Thomas then filed a Chapter 13 bankruptcy, and Shannon filed a proof of claim for $398,950.39. Thomas claimed that Shannon lost her rights to anything from him when she filed bankruptcy. The Bankruptcy Court decided against him. Shannon was allowed to go into state court to seek her share of the assets.
The reason this was so favorable for Shannon was that her bankruptcy wiped out all possible claims by Thomas against her. He could get nothing from her. She, however, could go after his assets and collect from him.
Her timing was perfect. The Court decided that her right to her share of assets (“equitable distribution”) arises when the judgement of divorce was entered. By filing for bankruptcy before the judgement of divorce, her right to a portion of Thomas’s assets was not wiped out by her own bankruptcy.
There you have it. Wife filed bankruptcy first, listed in her papers that she may have a claim against her ex-husband, wiped out his claim against her and kept her right to collect out of his assets. Perfect lawyering.
Why does this not make sense to anyone except an attorney?
A lot of people who come to me for a divorce are really concerned that they will be charged thousands and thousands of dollars in attorney’s fees. They have heard stories about lawyers who do this….and at a time when they can least afford it.
Here is an extreme example. Recently, Judge Thomas Zampino, sitting in Superior Court in Newark, New Jersey, did a remarkable thing: he told the attorneys for both the husband and the wife that they were charging far too much money, and cut back their fees by three fifths! It was a fairly ordinary case, although it did drag on for three years before a three day trial was held. Each law firm decided to have an extra lawyer helping the lawyer who tried the case, so the Judge had four lawyers representing the two people. Huge overkill, and very expensive.
Wife’s attorney gave a bill for $148,606 in fees for the plaintiff and Husband’s attorney wanted $81,394.
The Judge said this was ”shocking” in a “cut and dry” case.
As the Judge said: “These parties were W-2 wage earners with assets for retirement and a marital home and a summer home. Their debt structure was ordinary, consisting of mortgages, an equity line and credit cards. There was nothing to authorize or explain almost a quarter of a million dollars in attorneys fees alone (see attached). This was a “cut and dry” case that could have been handled alone by a 5th year associate.” The Judge then decided that no more that Fifty Thousand Dollars attorney’s fees was owed by the Husband to his attorneys, and no more than Fifty Thousand Dollars was owed by the wife.
It gets worse: The Appellate Court decided that the Judge did not have the power to limit attorney’s fees in this fashion. Each of them would have to fight with their own attorney in another separate lawsuit, and other judges (not the divorce court judge) would decide how much was owed. The case is McClutchy v. McClutchy, A-5951-08. Technically, the Appellate Division is correct.
If I had to defend either husband or wife against those claims for attorney’s fees, I would call the divorce court judge as my first witness.
This kind of case gives people nightmares. Over $230,000 for attorney’s fees for an ‘ordinary’ divorce – no wonder people do not trust divorce attorneys!
There are some ways to get this under control, so that YOU do not get a huge bill.
1. You can insist that your lawyer send you a bill every month. Then read that bill carefully, not just for the total amount but to see what you are being charged for. Five or eight ‘half hour’ telephone calls a month will really add up. ‘Reviewing the file’ – what did the attorney do for you? Take a careful look.
2. If fees get too high, call your lawyer and talk about it! Get your attorney to explain what was done, and what is left to do and how much time and money that will take. No lawyer can tell you exactly what can happen, but you are entitled to a fair estimate and a clear explanation.
3. The most important point: hire an attorney who does not try to make as much money as possible from each client, who cares about the clients and treats them fairly. Talk to people who have used the attorney. Talk to the attorney before you hire, and have the attorney clearly explain what they think will have to be done for you, and what things you will have to fight about (the fighting is what costs so much money).
And even if it is a cliche: you have to be able to trust the lawyer.
Getting divorced is one of the most difficult things that you will have to do. A good lawyer will help you through it, and for a reasonable cost.
Bob Davies is an experienced courtroom attorney, who handles many divorce, domestic violence, and family law matters. He focuses on solving his client's legal issues, so they can get their lives back on track.