Tag: Divorce evidence

Daubert Webinar Available for Download

For anyone who is interested in downloading my Florida Bar Family Law Section sponsored presentation on “The Return of Daubert” from this past Halloween, and could not get the materials, you can download it from the Florida Bar website here – and get CLE. Florida’s changing expert witness rules impact everyone who practices in divorce and family law. The Webinar will explain why the new old law is here to stay.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony.

Constitutional Problems

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. My new article about the way the Constitutional problem was resolved by the Florida Supreme Court is available here.

Return of Daubert

This summer, the Florida Supreme Court weighed in on the new evidence law and found it constitutional. Rejecting the recent complaints about the Daubert standard, the Florida Supreme Court remarked that Daubert has been routinely applied in federal courts since 1993, a majority of states adhere to the Daubert standard, and caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.

Effective immediately, the Florida Supreme Court has adopted the Legislatures’ 2013 amendments to section 90.702 as procedural rules of evidence, and adopted the amendment to section 90.704 to the extent it is procedural.

Florida’s new-ish Daubert standard is the set of factors used to determine the admissibility of expert witness testimony in court. Under the Daubert standard, the trial judge serves as the gatekeeper who determines whether an expert’s evidence is deemed reliable and relevant.

Trial judges in Florida now have to use the Daubert test to assess whether an expert witness’ testimony is 1) based on scientifically valid reasoning and 2) whether it has been properly applied to the facts at issue. Failure to comply with the Daubert standard can result in exclusion of an expert’s testimony.

The Webinar is available here.

 

Your Social Media Divorce Farce

When your divorce becomes social media fodder because you yourself are posting things online about it, what are the risks? Lifestyle and mommy blogger Eva Amurri Martino – who has posted to her followers that she and her husband are going to “lovingly part ways as a couple” (aka divorce) – may find out the hard way.

Social Media Divorce

News Feed

Eva, the daughter of Susan Sarandon, and her husband who is a former soccer player, announced their split with simultaneous posts on both their Instagram and Twitter accounts. In the photo, they are beautiful and laughing on their porch with their two adorable young children, despite the somber message.

Eva is 23-weeks pregnant with the couple’s third child, making the beautiful laughing picture and self-described “lovingly parting ways” description seem like a total farce.

The couple also has been remodeling a home and both posted declarations of love on their anniversary less than a month ago. Her followers immediately began speculating what happened on various internet forums, and they have become tabloid fodder.

Florida Divorce and Social Media

Eva Amurri Martino’s decision to “lovingly part ways” and broadcast her divorce to the world is part of the recent phenomenon of the “divorce selfie” and other social media announcements.

I’ve written about the widespread use of social media in society, and how that impacts family court cases. Social media evidence is increasingly becoming important at trial – especially when it comes to authenticating exhibits in family court.

Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.The list is short, and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.

Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

With evidence of foreign governments using social media to spread disinformation and propaganda, and the widespread use of fake social media accounts, you have to wonder whether the genuineness assumption of evidence in family court still stands.

Create a Post

Eva and Kyle’s divorce raises an interesting question: when your brand is your life, how do you post divorce information? Influencers usually handle this in three ways: They ignore it and “keep it off the feed,” they offer an unfiltered look at their hardship, or they go dark until the storm passes.

Eva has kept up her usual posts and aesthetic, but mixed in the realities of her new situation. Her activity over the past week features her usual glam, well-lit Instagrams, but with divorce talk sprinkled in. For example, she hosted a “slumber party” for her girlfriends, complete with makeup, pearls, and matching silk pajamas. She also has been posting family shots, now missing a member.

For his part, Kyle posted this absolutely heartbreaking post the other day. Something about how peppy and lovely it looks kind of kills me?

If you’re considering divorce — even if you plan to file for divorce online and expect it to go amicably — take some precautions. Lockdown privacy settings for example, and be cognizant that your posts could be used against you.

Even if things are moving forward in an amicable fashion, you don’t want to turn your divorce into a contested legal battle. That may include keeping your divorce off Facebook and Twitter. If you have children, consider an agreement that child-related social media posts are limited especially photos and posts that give insight into children’s personal lives.

Influencers like Eva, who have used their children to create a family brand, may have little choice but to make glowing comments such as “lovingly parting ways” while 6-months pregnant and in the middle of a remodeling project.

The Buzzfeed article is here.

 

Upcoming Speaking Engagement

I will be speaking at the Family Court Services Lunch & Learn Series with my colleague Evan Marks, on Florida’s twisting road to the correct standard for admitting expert testimony in family law and divorce cases called: “Daubert Returns.”

speaking engagement

The Lunch & Learn Series consists of fantastic presentations hosted monthly by Family Court Services at the Family Division Courthouse, and this one will take place on:

 October 16, 2019, from 12:00 pm – 2:00 pm at the Family Division Courthouse located at 175 NW 1st Avenue 11th Floor Miami, Florida 33128.

The presentation is based, in part, on an article to be published this Fall in the Florida Bar Commentator, “Daubert House.” The Florida Legislature amended Sections 90.702 and 90.704 of the Florida Statutes to bind Florida courts to the Daubert standard for the admission of expert testimony and the basis for an expert’s opinion. Since then, the Daubert standard has been constantly attacked.

My co-presenter, Evan Marks, Esq. and myself, will answer the questions: What was the Frye Rule? What did the Daubert standard do to change it? And how it impacts experts in your marital and family law cases.

This presentation addresses the statutory changes to §90.702 and §90.704; how the new Daubert standard differs from the old Frye rule; the now-settled Constitutional problem, Florida appellate cases applying the new standard; how the judge’s role in admitting expert testimony has changed; and the new Rules’ impact on the admissibility of expert testimony in Family Division cases.

The event is sponsored by Family Court Services. Family Court Services was developed to assist family law judges and general magistrates with some of the Court’s most difficult family cases, reducing case delays while tending to the unique needs of divorcing parents and their children.

CLE and continuing education credit for judiciary, attorneys, mental health professionals, mediators and professional interpreters are also available.

You can register here.

 

Social Media, Family Law, and Russian Hacking

Hypothetically, if Vladimir Putin opened fake social media accounts in your name to ruin your family law custody case, what would happen? An unfortunate Florida woman, who was recently sentenced to five months in jail for a few posts on her Facebook page, found out the hard way.

Social Media Family Law

News Feed

The Father, Timothy Weiner, had been warned. The judge in his custody case ordered him to stop harassing his ex-wife on Facebook. The family court judge issued two orders to keep any information about the case off social media and prevent family members from publishing information about the custody action on social media.

“Neither parent,” Pasco Circuit judge Lauralee Westine wrote in her order after the September hearing, “shall disparage or threaten the other parent on social media.”

But a week later, a photo of his ex-wife surfaced on a father’s rights Facebook page called “Mothers who abuse kids.” Weiner hit the “like” button. Fast forward to this summer. The Father’s new wife, Jessie Weiner, who is not a party to his custody case, was not served with the order.

In one of Ms. Weiner’s Facebook posts, sensitive family court documents concerning her Husband’s child from his previous marriage were posted. Court records indicate that someone on Weiner’s Facebook even shared an old news article about when her husband was jailed over a Facebook post.

The uploaded Facebook documents had to do with the ongoing family law custody case between Weiner’s husband and his ex. The family judge was not amused, and took swift action. She entered an order directing Ms. Weiner to show cause why she should not be held in indirect criminal contempt for failing to obey her orders.

Ms. Weiner received the order to show up in court the day before the 4:30 p.m. hearing that had been scheduled. Her lawyer, whom she retained on the same day as the hearing, argued for dismissal, for the judge’s disqualification, and for a continuance.

“Next thing I know, I hear five months in the county jail. “No matter what I said, I was guilty.”

The family judge denied all of her motions, found Ms. Weiner guilty of indirect criminal contempt, and sentenced her to five months’ confinement in jail for contempt of court.

What if, as Ms. Weiner argued, the social media accounts were not authentic, i.e. she didn’t make the Facebook posts?

Florida Authenticity and Social Media

I’ve written about the widespread use of social media in society, and how that impacts family court cases. Especially when it comes to authenticating documents in family court.

Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.

The list is short, and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.

Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

But with the Russian election scandal, and the widespread use of fake social media accounts, you have to start to wonder whether the genuineness assumption of evidence in family court still stands.

Governments manipulate photographs. It is not unheard of for spouses to hack computers and borrow smartphones to impersonate their owners’ texts. Anyone can set up a Facebook page, email, Instagram, or twitter account.

The increasing use of electronic evidence at trial, and the ease with which it is impersonated and manipulated, pressures us to bolster foundational evidence more than ever. Unfortunately for Ms. Weiner, she was jailed before she could even challenge the evidence.

What’s on your mind?

The Second District Court of Appeals had no trouble quashing the contempt order and freeing Ms. Weiner . . . after she served a month in jail.

First, the order violated Ms. Weiner’s due process rights because she was not subject to or served with the court order that she was accused of disobeying.

Second, the order to show cause was never served on Ms. Weiner within a “reasonable time allowed for preparation of the defense,” as required by Florida Rules of Criminal Procedure. Ms. Weiner’s name did not appear in the order’s service list, and it is undisputed that she received the order the day before the hearing and did not engage counsel until the morning of the hearing.

Finally, the trial judge should have disqualified herself because the contempt conduct involved disrespect and criticism of the judge.

This rule assures that a person cited for a contempt of court which involved a criticism of a judge, would not be tried before the judge who was the subject of the criticism.

The opinion is here.

 

New Divorce Expert Witness Rule

Many people know that in 2013 Florida passed a law which changed the divorce expert witness rule and how experts could testify in family law cases. A few people warned that the new law may be unconstitutional because of the way it passed. Fewer people know that in 2018 the Florida Supreme Court threw out the new rule. Even fewer people know that last week the court changed it all back.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony

Too Many Cooks in the Kitchen

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion.

I’ve written about the Constitutional problem with the way the legislature created the new law. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. At the time however, that issue has not been accepted by the Florida Supreme Court to date. The latest decision corrected that.

Frying Frye

The Florida Supreme Court, as part of its Constitutional rule-making authority has the power to adopt Legislative changes to the Evidence Code. As we saw before, the Court previously refused to adopt the Daubert amendments, to the extent that they are procedural, solely:

“due to the constitutional concerns raised” by the Committee members and people who opposed the amendments.”

This year, without re-addressing the correctness of the Florida Supreme Court’s ruling in DeLisle v. Crane Co, and after noting that DeLisle did not address the amendment to section 90.704 made by section 2 of chapter 2013-107, the Court chose to recede from its prior decision not to adopt the Legislature’s Daubert amendments.

The Court remarked that the Daubert standard has been routinely applied in federal courts since 1993, a majority of states adhere to Daubert, and caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.

Citing to Animal House, one of the dissenters to the majority opinion, newly appointed Justice, Robert J. Luck, poked fun at the High Court’s swift rule change:

Like the little-known codicil in the Faber College constitution, the concurring opinion cites section II.G.1. of our internal operating procedures, which provides that “the Court, on its own motion, may adopt or amend rules.” Id. (quoting Fla. S. Ct. Internal Op. Proc. II.G.1.). According to Westlaw, no court, including ours, has ever cited this language or any part of section II. Ever.

Effective immediately, the Florida Supreme Court adopted the amendments to section 90.702 as procedural rules of evidence, and adopted the amendment to section 90.704 to the extent it is procedural.

The Supreme Court opinion is available here.

 

New Divorce Expert Witness Rule

Few people know that in 2013 Florida passed a law changing how divorce expert witnesses could testify in family law cases. Many people warned that the new law may be unconstitutional because of the way it passed, but waited for the Florida Supreme Court to decide. This week it did.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony

Too Many Cooks in the Kitchen

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion.

I’ve written about the Constitutional problem with the way the legislature created the new law. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. At the time however, that issue has not been accepted by the Florida Supreme Court to date. The latest decision corrected that.

Frying Daubert

This week, the Florida Supreme Court weighed in on the new evidence law and found it unconstitutional. This latest ruling turns back the clock on the Florida Evidence Code.

First, the Supreme Court said that the 2013 amendment was not substantive law because it didn’t create, define, or regulate a right, and solely regulated the action of litigants in court proceedings.

Second, the evidence code amendment conflicted with a rule of this Court, namely, the Frye rule as modified in Florida cases, which the Legislature can’t repeal by simple majority.

Finally, the Florida Supreme Court said it was concerned that the evidence code changes limited access to courts by imposing an additional burden on the courts:

With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

The Supreme Court opinion is available here.

 

Emojis and divorce: What did ???? mean?

Emails and texts have become regular exhibits in divorce trials. And increasingly, people are using emojis to express their intent. But did the witness’s champagne bottle and lipstick emoji mean what we thought? This is a post about emoji law.

Emojis

“Emoji” is Japanese for pictograph: e “picture” + moji “character”. Emojis are a writing system that uses symbols to represent an idea rather than words.

According to some studies, more than 90% of social media users communicate with emojis with some six billion emojis exchanged daily.

In a way, we’ve regressed to a hieroglyphics language not unlike the ancient Egyptians.

The Wall Street Journal has a great article on the increasing trend of people communicating through pictures and how we lawyers have to decipher the parties’ meaning.

Divorce Evidence

I’ve written about social media evidence in divorce before. The increasing use of emojis has put a new spin on things.

One of the first questions lawyers ask is about authenticity. Is the text, FaceBook or Instagram post even authentic? Usually, authentication of evidence like texts, emails, photographs, videos, audio recordings, and computer records is required as a condition to being admitted into evidence.

Some exhibits are so trustworthy, our Evidence Code doesn’t even require a witness. This is useful for things like: the law, and court rules for instance. For most other evidence, the Evidence Code lets the judge decide.

Over the years, the threat of false evidence being introduced in court has been diminished through the discovery process. We send out requests for admission and have pretrial conferences which have helped make authentication less of a concern.

Only after the evidence is found to be authentic can we discuss the intent of the text or post. Family law is unique. We have hearings early in the case, which means your emoji, and what you intended, can be discussed right away.

Emojis and the Law

Emojis are new, so there are no laws on the treatment of these emotion laden symbols. We only have a few cases to determine what courts do with emojis – and they do not consistently agree.

In some cases, emojis are taken under consideration when interpreting a commenter’s original intent.

For example, the appeals court in Michigan determined that “The use of the ‘:P’ emoticon makes it patently clear that the commenter was making a joke” because the face this emoticon represents usually “denotes a joke or sarcasm.”

The U.S. Supreme Court reversed a conviction of making threatening communications. The primary issue was whether a husband intended a “true threat” to his wife. The husband argued that his text was in jest because he added a “smiley” emoji sticking its tongue out.

The Supreme Court did not discuss the emoji, but reversed the conviction on other grounds.

The Wall Street Journal article is here (paywall).

 

Testing Marriage Secrecy

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, February 1, 2016.

Can emails to your husband or wife be used as evidence against you in divorce, or is there a privilege against that? A New York federal court is about to decide that issue.

Actually, there is a privilege, and it is a very old one at that. The privilege is rooted in English common law since at least 1628, when an English lord established the idea that spouses should not be forced to testify against each other.

In the New York case, a husband is being charged with supporting Islamic State, and the prosecution wants to use his letter to his wife which they found.

The Wall Street Journal has an article on Tairod Pugh, a 48-year old U.S. Air Force veteran who wrote a letter to his wife, saying he wanted to become a martyr, and to support Islamic State.

He was turned away at the Turkish border before he could cross into Syria. Now that the prosecution has the letter, Tairod wants to hide it from a jury.

A privilege, in evidence-speak, is an exception to the rule that ‘no one may refuse to give testimony or other evidence in court.’ This general rule helps to ensure fair trials.

A privilege is not a constitutional right. The right not to incriminate yourself (“taking the Fifth”) is a constitutional right. A privilege allows you to object to your own or another’s testimony about communications within confidential relationships.

I’ve written about evidence before. The Husband-Wife privilege, although ancient, has the same value today as it did then. Courts recognize the privilege to protect marriages from the harm of spouses being forced to testify against each other.

In Florida, a spouse has a privilege to refuse to disclose, and to prevent others from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

The privilege does not work in divorce cases. When one spouse uses the courts against the other spouse, our policy of encouraging settlement could be frustrated by the privilege.

In addition to exceptions, privileges have to be properly asserted or they may be lost. A spouse may waive the privilege by failing to object to the testimony when offered.

You can also waive the privilege by mentioning the confidential communication to others, and by offering testimony about it through other witnesses.

Every state in the U.S. recognizes one or both of the types of spousal privilege recognized by federal courts. There are differences from state to state with the privilege; for example, some states have many more exceptions to the privilege.

The Wall Street Journal article can be found here (paywall).

New Florida Evidence Rule 702 Can Impact Your Divorce

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, July 3, 2013.

Divorce law in Florida is becoming so complicated, that the use of expert witnesses – like accountants, vocational experts, and psychologists – are becoming very common to determine values, need and ability and parenting issues.

The Florida rule for experts is Rule 702 of the evidence code, and it was just amended. In fact, it is so new that it just became effective on July 1st. There are some interesting things about the new rule.

1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.

2. The way the the Rule came into being by the Legislature could create a constitutional challenge to the rule down the road.

3. The new rule forces Florida courts to abandon the Frye test for admitting expert testimony, a test we’ve used for around 70 years.

4. The new rule requires Floirda courts to apply the standard developed by the U.S. Supreme Court in Daubert; something the Florida Supreme Court has said it doesn’t want to do.

5. The Frye test was a very lenient test, especially as applied here in Florida. In Florida, Frye allowed in all expert testimony – even some “junk science” opinions – as long as they were generally accepted standards.

6. The new (for Florida) Daubert rules, require judges to act as gatekeepers, and focus on an experts qualifications, the relevance of the testimony and the reliability of the testimony using a multi-factor test.

7. The rule change will require state judges to become familiar with the new evidentiary test, and even brush up on the scientific method.

8. For family lawyers, the Daubert test offers an opportunity to challenge the qualifications, relevancy and reliability of experts which we never had before.

9. The change will also force expert witnesses to stay on top of their professional literature, and be able to defend their choice of methods, tests or evaluation techniques.

The Florida Legislature seems to be on a mission to re-write family law, trying to pass alimony reform, change equitable distribution, and modify Rules 702 and 704. Big changes have occurred, and clients need to discuss with their family attorneys about any new issues and strategies to consider.