A Union Leader editorial today, entitled, “Keep it simple: Family court rules work,” asserts that HB 259, “AN ACT requiring the supreme court to adopt rules of evidence for the judicial branch family division“, is a bad idea. The Editorial suggests that implementation of evidentiary rules would overburden a system where the majority of the litigants are not represented by attorneys, give an inequitable disadvantage to a party who is represented by counsel over one who is not, and would drum up business for lawyers, making the system unwieldy and inefficient. I couldn’t disagree more with my friends at the Union Leader.
The editorial informs us that About 70 percent of people who use the family courts do so without lawyers, mostly because they can’t afford them. While we might agree that it is desirable to have a court system that is accessible to laymen, not being able to afford a lawyer should not absolve people from the responsibility to be reasonable in what they present to the family court in furtherance of their legal positions. The UL asserts, “Alleged facts can be rebutted by the other side,” and while that is fundamentally true, the UL overlooks the notion that unsubstantiated allegations from a bitter and angry spouse inevitably triggers costly ancillary resources and services.
The UL writes, “The loose rules allow people to, say, introduce a phone bill as evidence instead of have a phone company employee testify, or have a witness present to back up an allegation if it’s challenged instead of having to put all witnesses on the stand.” That notion exists already and is more commonly referred to as a “prima facie” offering; that is, the evidence is presumed true on its face unless otherwise rebutted.
The UL tells us, (the present system allows) cases to proceed swiftly, but most importantly it allows people to get divorced or settle custody disputes without hiring lawyers they otherwise cannot afford. Few would disagree hiring legal counsel to navigate through the twists and turns of a divorce case can be costly. There are a significant number of people who simply do not possess the financial means to retain legal services. But what the UL also fails to point out from a fiscal standpoint, is that in a significant number of cases where children are concerned, a guardian ad litem is frequently appointed and the court invariably generates an order requiring one or both parties to pay for the services of a court-appointed GAL…who is most often, A lawyer. And, whether or not they can afford it is inconsequential when they get that first bill from the office of cost containment.
Streamlined Judicial economy is hardly a credible reason for fast food-style divorces that forego evidentiary standards in favor of expediency. The New Hampshire Supreme Court is chucked full of slip opinions deciding, “what is evidence” and “what is not evidence,” all argued by lawyers, I might add, where the personal philosophies of judges and masters prevailed, triggering those appeals.
I guess it would be true in a sense that few appeals are taken by those who cannot afford counsel because the filing requirements of the notice under Supreme Court rule 7(1)(B) presents a most daunting task for common folks not initiated in the practice of law and the chances of such an appeal being accepted are slim and none. That is one good clear-cut example of “judicial economy.
The UL further suggests that HB 259 would give people with lawyers an advantage and would be a business generator for attorneys. Are we to assume that under the status quo people not represented by counsel now are on an equitable parity with those who are represented?Finally, the UL errantly assumes evidentiary rules would increase the time and cost of every family court proceeding, further clogging the courts. Filing a petition for Divorce in Family Court already costs over $200. And contested actions languish in the courts sometimes in excess of two years.
When Child Support Enforcement, DCYF, Child and Family Counselors, and Guardian-ad-Litems enter into a case, those are cost impacts that occur, regardless of whether a party has a lawyer or not. Judicial economy is always a rock solid argument in the arena of efficiencies…that is until it is your name or someone you know on that petition and you feel like you or someone you know is getting royally screwed. To suggest the implementation of some basic evidentiary rules will suddenly mire down the whole family court process is specious at best.
Finally, just ask Jeff Ruggiero how well the family court systems’ lack of evidentiary rules worked for him. The past year we all bore witness to the Rockingham County Superior Court trials of his ex-wife Kristin Ruggiero who was convicted and sent to Prison for altering documents, lying under oath and tampering with evidence after having Jeff Ruggiero locked up in jail for her false and malicious assertions, only because she got caught. Family court rulings presently stand in that case today because those rulings were based on the untruths by Kristin against the interests of Jeff and were accepted by the Court. So I lastly ask this: “Is not having some basic evidentiary rules more favorable than unjust outcomes such as this?
CROSS POSTED