Tag: Divorce Experts

Upcoming Webinar

Posted by Ron Kauffman on

For any interested readers, I will be speaking with the Hon. Samantha Ruiz Cohen at a webinar hosted by the Florida Bar Family Law Section. The webinar will discuss Florida’s twisting road to the current standard for admitting expert testimony in family law and divorce cases.

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The presentation addresses the statutory changes to §90.702 and §90.704; how the new Daubert standard differs from Florida’s old Frye rule; the now-settled Constitutional problem, some 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 Law cases.

You can register by clicking here.

 

New Divorce Expert Witness Rule

Posted by Ron Kauffman on

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.

 

Florida’s Expert Witness Crucible

Posted by Ron Kauffman on

Few people know that Florida passed a new law about expert witnesses a few years ago, which impacts divorce law. The Florida Supreme Court decided not to adopt the rule in its rule making process, waiting for a case in controversy instead. The case has arrived.

Florida’s Expert Witness Controversy

The Florida rule for expert witnesses was amended in 2013. There were some interesting things about the 2013 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 Rule came into being by the Legislature created a constitutional challenge to the rule down the road.
  3. The new rule forced Florida courts to abandon the 70-year old Frye test for admitting expert testimony.
  4. The new rule required Florida courts to apply the Daubert standard, which is the standard applied in federal courts, the U.S. Supreme Court, and a majority of states.
  5. The Florida Supreme Court has said it doesn’t favor the new rule.

I have written extensively about Florida’s problem with expert witnesses before, including the constitutional issues. The constitutional problems dealt with the way the law was passed.

Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

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 was an open question whether the Legislature violated the separation of powers doctrine.

The Florida Supreme Court Case

As the Florida Bar News reports, when the Florida Supreme Court declined to adopt the legislative change to the expert witness rule, the panel said they wanted to address the issue in a case in conflict.

The court now has that case.

The Delisle case is a mesothelioma case in which the plaintiff argued he contracted the disease from smoking Kent cigarettes when they used asbestos in the filters, and from handling gaskets that contained asbestos when he worked at a paper mill.

The trial judge and the Fourth District Court of Appeal held – even though the Supreme Court had not passed on the Legislature’s amendment of the evidence code – the legislature’s expert witness rule must be presumed valid, meaning the Daubert standard should be used for expert witnesses.

The appellate court decided that under Daubert, the two experts should not have testified. The appellate opinion overturned the jury verdict and award Delisle had won in the trial court.

The Florida Supreme Court has not set a date for oral arguments.

The Florida Bar News article is here.

 

Divorce & Common Law Marriages

Posted by Ron Kauffman on

Comedian Ron White’s wife is filing for divorce, and the duration of their marriage could be a major point of contention. Margo Rey filed divorce pleadings last week in Los Angeles, mentioning they had a common law marriage in Texas.

If the couple have had a common law marriage in Texas since 2008, long before they officially got married, they may be considered married in the eyes of the law, if they live together as husband and wife, and hold themselves out in public as a married couple.

The answer to their dispute about the length of the marriage may be important as it relates to property division and alimony.

Margo says she wants Ron to pay spousal support. The issue of the common law marriage may have been raised so she can argue that her marriage could be a few years longer, and thereby entitling her to more alimony.

Florida Common Law Marriages

Florida deems common law marriages void. What about a common law marriage from another state? I have written about a unique case in South Carolina before, and the White divorce raises it again.

In South Carolina, Debra Parks wanted her relationship to be considered a common-law marriage under South Carolina law. Parks is gay. But until 2014, same-sex marriage was illegal.

In a groundbreaking case for South Carolina, a Family Court judge has ruled that Parks and her former partner had a common-law marriage under state law. And the state must recognize that their common-law marriage has been legal for almost 30 years, the judge ruled.

The South Carolina ruling immediately becomes a legal precedent, and has the potential to impact thousands of people in same sex relationships because it backdates the period of effect to the beginning of the common-law marriage.

South Carolina is one of eight states that recognize common law marriage. The case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

Florida law is different. No common-law marriage entered into after January 1, 1968, is valid in Florida. The South Carolina case could create a conflict between Florida Statutes – which makes common law marriages in Florida void as of 1968, the Parks case, which recognizes the creation of same-sex, common law marriages in South Carolina.

Interstate Problems

The generally established principle is that the validity of a marriage is determined by the law of the place where the marriage occurred. So, while Florida no longer recognizes common law marriages, nevertheless, it may be forced to recognize the validity of common law marriages in other states.

The TMZ article on the White divorce is here.

 

No-Fault Divorce Around the World

Posted by Ron Kauffman on

A British woman who alleges she was “desperately unhappy” being married lost her divorce. Unlike Florida, many places require proving fault, you can lose your case, and have to stay married!

As the BBC reports, Tini Owens, 66, asked the Court of Appeal to overturn a family court judge who turned her down when she asked to divorce her husband Hugh Owens, 78.

You read that correctly. Of all of the issues facing you when you divorce: who gets custody, how will I support myself, what are the tax implications of alimony, in some places you could actually lose your request to divorce and have to stay married.

The appellate court judges in Great Britain upheld the trial judge’s ruling. Mrs. Owens claimed that her marriage had broken down, but Mr. Owens disagreed.

The Husband argued that the couple still had a “few years” to enjoy. And the trial judge agreed with him. The judge ruled the Wife’s allegations were “of the kind to be expected in marriage”. Parliament decreed “it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”

Florida is a “No-Fault” state. No-fault laws are widespread across the United States, but not everywhere. No fault laws have helped to reduce animosity in divorces by reducing the need to distort, lie, and air dirty laundry.

I’ve written about no-fault divorce before. Florida abolished fault as grounds for filing a divorce. The only reason you need to file for divorce in Florida is that the marriage is “irretrievably broken.” But as the case of Mrs. Owens shows, in other places, that is not always true.

While Florida is a No-Fault state for divorce, it is interesting to know why people divorce. A recent study out of the UK reveals some surprising reasons why people divorce. Interestingly, adultery is a declining factor.

It appears that couples are less likely to cite adultery as the cause of a divorce than they were 40 years ago. However, claims of “unreasonable behavior” (a British term) have skyrocketed to more than 5 million divorce cases.

The BBC article is available here.

Divorce & New Rule on Experts

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, September 12, 2016.

Divorce is so complicated, we rely on experts for help. But, the new statute governing experts is being questioned by the Florida Supreme Court. What is the status?

The Florida rule for experts was amended in 2013 and is up for review by the Florida Supreme Court. 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 rulemaking authority is the court’s job.

2. The way 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 70-year old Frye test for admitting expert testimony.

4. The new rule requires Florida courts to apply the federal standard; something the Florida Supreme Court has said it doesn’t want to do.

I have spoken and written on the rule change several times. In articles and speeches, I cautioned about a possible Constitutional problem with the way the law was passed.

However, the Constitutional issues will not be resolved until the Florida Supreme Court decides it. As the Florida Bar News reports, the two issues being argued before the high court are:

1. Should the Rules of Evidence incorporate the Legislature’s 2013 law that changed the standard for expert testimony to the Daubert standard?

2. Was the amendment a substantive law, or a rule of courtroom procedure?

The Code and Rules of Evidence Committee of the Bar, which advises the court on evidence matters, recommended 16-14 against adopting the change the Legislature.

Justice Barbara Pariente questioned whether the Court should reject adopting Daubert as a rule, because it is not actually passing on the constitutionality of the rule, which it would do when a case in controversy reaches the court.

The reaction to the law has been huge, the Court received more than 180 comments on the proposed rule change. The court responded by extending the time for oral arguments from the normal 40 minutes to 60 minutes.

The vote on the Daubert/Frye issue was one of the few times in the past three decades that CREC has voted against recommending that a legislative change be adopted as an evidence rule.

The Florida Bar News article is here.

Speaking Tomorrow at Family Court Services

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, May 17, 2016.

Tomorrow, May 18th, I will be speaking at the Lunch & Learn Series with my colleague Evan Marks, on the use of experts in paternity and divorce cases: “The Daubert Crucible.”

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The Lunch & Learn Series is a fantastic series of presentations hosted monthly by Family Court Services, and this one will take place on:

May 18, 2016, 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 the article I published last Fall in the Florida Bar Commentator, The Daubert Crucible. In 2013, 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.

My co-presenter, Evan Marks, Esq. and myself, will answer the questions: What is the Frye Rule? What is Daubert? And why we all need to know.

This presentation addresses the new statutory changes to §90.702 and §90.704; how the new Daubert standard differs from the old Frye rule; the lingering Constitutional problem, recent Florida appellate cases applying the Daubert 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.

Don’t forget to bring a lunch.

Speaking Next Week on Expert Testimony

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, January 7, 2016.

I will be speaking on a panel on expert testimony after Daubert. The topic addresses Florida’s changes to the Evidence Code, the pending Constitutional issues, and a view from a sitting circuit judge.

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I recently published an article about Daubert. In amending the Florida Evidence Code, the Legislature has tied Florida courts to the Daubert standard used in the Federal courts for the admission of expert testimony and opinions.

Although the amendment became effective in 2013, the changes to the law are still so new, there are less than a handful of appellate decisions which have reviewed the amendments.

A Constitutional issue has arisen. The Legislature can enact substantive law, but only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

The Board of Governors, at its December 4 meeting in Naples, adopted the recommendation by the Code and Rules of Evidence Committee. They are urging the Supreme Court to not adopt the Daubert amendment to the Evidence Code.

The vote by the Code and Rules of Evidence Committee marks one of the few times it has recommended that a legislative enactment to the evidence code not be adopted.

When the committee does not recommend that action, it is generally because it believes the Legislature has crossed the boundary from substantive to procedural issues.

The next scheduled three-year cycle report is due to the Florida Supreme Court by February 1, 2016.

The article is available on the Florida Bar Family Law Section website here.

Experts, Divorce and the New Rule Change

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 12, 2014.

We increasingly rely on experts in divorce trials. Most of my cases involve accountants, psychologists, or some other expert. Few people realize the expert witness rule dramatically changed recently.

I blogged about this rule change before, and have an article in the Florida Bar Commentator which deals with the issues in depth. One big question has to do with the way the rule was amended.

Under our constitution, the legislature can enact substantive law, but can’t pass procedural laws for the courtroom, or a separation of powers violation occurs. Many people have said the new expert rule change violates the Constitution.

For instance, the Florida Supreme Court recently refused to adopt the legislative changes to the newly created section 766.102(12), Florida Statutes, to the extent the high court saw them as procedural.

However, the Third District Court of Appeals just approved of the new statute in a case. A child, through his mother, sued her employer for her son’s premature birth and related health problems due to workplace stress.

The mother’s expert witness said that workplace stress caused the early delivery of her son with medical consequences, but the trial judge struck the expert’s testimony.

The Third District Court of Appeals upheld the Miami judge’s decision. The court noted that the statutory change requires all Florida courts to apply the new rule to all expert testimony, to apply it retroactively in pending cases, but did not discuss the possible constitutional controversy.

The Third District now joins the First District Court of Appeals in applying the new expert witness rule in pending cases.

The Third District Case can be read here.

Trouble With Florida’s New Expert Witness Rule

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, December 27, 2013.

Divorce trials increasingly rely on expert psychologist testimony for custody recommendations and forensic accountants for financial opinions. The rule on using experts recently changed. Is the new law substantive and constitutional, or procedural and unconstitutional? The Florida Supreme Court may have just tipped its hand.

An article I wrote on expert witness testimony was just published in the Commentator, discussed the constitutional controversy, but left up in the air the Florida Supreme Court’s thinking because it was unknown.

However, last week, the Florida Supreme Court refused to adopt a state rule that creates restrictions on out of state doctors who can testify during medical malpractice trials.

The law stated:

If a physician or a dentist is the party against whom expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed or possess a valid expert witness certificate.

The Florida Bar Code and Rules of Evidence Committee voted to recommend adopting the statute. However, the Board of Governors voted to recommend rejecting the proposal because it was unconstitutional, and would chill the ability to obtain expert witnesses.

The Florida Supreme Court agreed with the Board of Governors, and held:

After hearing oral argument and carefully considering the Committee’s recommendation . . . we decline to follow this recommendation due to the concerns raised. Accordingly, the Court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural.

The Supreme Court vote was 8-1. The Florida Supreme Court’s order can be read here.