Tag: family law evidence

Social Media and the Kardashian Divorce

For singer Kanye West, keeping up with his Wife Kim Kardashian on social media during their divorce just became a little harder. Forget the pandemic, the real news is that Kanye unfollowed Kim on Instagram! Few realize that social media can play an important role in a divorce.

divorce social media

Gold Digger?

Kim and Kanye married in Florence, Italy on May 24, 2014. A source reported that the couple had been going to marriage counseling. However, after counseling, Kim filed for divorce this year. The couple likely has a prenup, given the money at stake and considering it’s Kardashian West’s third marriage. Additionally, their biggest assets may be separately owned and operated businesses.

Their divorce could get more complicated when it comes to their shared real estate assets — including their Calabasas mansion, with an estimated $30,000 bathroom sink.

Kanye may the wealthier of the pair, with his net worth tied up in Yeezy, with an estimated value of $1.26 billion. His shoe brand is known for sneakers that cost upwards of $200 a pair. Kim’s wealth is believed to be invested in KKW Beauty with an estimated value of $500 million.

Social Media and Divorce

I’ve written about the widespread use of social media in society, and how that impacts family law cases – especially when it comes to authenticating documents in a divorce 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 widespread use of fake social media accounts, you have to start to wonder whether the genuineness assumption of evidence in family court still stands. Anyone can set up a fake Kardashian Instagram 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.

Stronger

Kanye previously unfollowed Kim and her sisters on Twitter in June. He confessed to being unfaithful during their seven-year union in a song:

 “Here I go actin’ too rich / Here I go with a new chick / And I know what the truth is / Still playin’ after two kids / It’s a lot to digest when your life always movin.”

Social media is the cause behind one in seven divorces. Social media can not only cause marriages to end — they can impact your divorce and weaken your case.

One of the first places your spouse’s divorce lawyer will look for evidence is online. Even seemingly harmless pictures or statements can have a legal impact later. When you are disputing child custody, what you post on Facebook can make you seem unfit.

It can be frustrating to know the latest legal motion in your divorce was the result of something you posted online. Although you don’t have to remove your social media presence during a divorce, caution in posting is advised.

While your divorce case is pending, limit your posting online. Be careful when discussing things with your soon to be Ex and their friends. Also, be careful of the kinds of photos you post online as they can hurt your custody case.

Kanye has had a complicated relationship with social media. In July 2020, he claimed on Twitter that he had been trying to divorce Kardashian after she “met with Meek [Mill]” nearly two years prior to discuss prison reform.

Kanye referred to Kim’s mother, Kris Jenner, as “Kris Jong-Un”.

Conversely, Kim is playing things well. She publicly supports Kanye after separating, defends him, and asked her fans to be kind to him as he has bipolar disorder.

“He is a brilliant but complicated person who on top of the pressures of being an artist and a black man, who experienced the painful loss of his mother, and has to deal with the pressure and isolation that is heightened by his bi-polar disorder. Those who are close with Kanye know his heart and understand his words do not align with his intentions.”

The Fox News article is here.

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.

 

New Article: Daubert House

My new article on the changes to our expert witness rules, which impact all family law and divorce cases, is now available at the Family Law Section website. Daubert House not only discusses Florida’s changes to the expert witness rules, it mixes in references to National Lampoon’s Animal House for reasons those familiar with the Florida Supreme Court’s recent opinion will understand.

family law daubert

Were the Changes Even Constitutional?

In amending the Florida Evidence Code, the Legislature bound Florida courts to the Daubert standard for the admission of expert testimony and opinions. However, those changes were short lived. The Florida Bar Board of Governors and several Florida Bar committees strongly opposed the changes.

Up until recently, there was also the controversy lingering about the constitutionality of what the Florida Legislature did. While the Legislature can enact substantive law, 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.

In response, the Florida Supreme Court declined to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised. The Florida Supreme Court instead left it for a proper case or controversy.

That case was DeLisle v. Crane. The Florida Supreme Court found that the Legislative amendments to Section 90.702 were not substantive because they did not “create, define, or regulate a right”, but was procedural rulemaking instead.

Additionally, the Court held that the Daubert amendment conflicted with the exiting Frye rule because Frye and Daubert were competing methods to determine the reliability of expert testimony. Once again, Frye was the appropriate test in Florida courts. Unknown to everyone, Frye was on “Double Secret Probation.”

Faber College

After our new governor was sworn into office, he appointed three new Florida Supreme Court justices. This year, the Florida Supreme Court, without re-addressing the correctness of its own ruling in DeLisle, chose to recede from its prior decision not to adopt the Legislature’s Daubert amendments.

The dissent, made reference to the movie Animal House:“Like the little-known codicil in the Faber College constitution . . .” in objecting to the manner in which the majority of the Florida Supreme Court re-adopted Daubert.

Effective immediately, the Florida Supreme Court 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.

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

 

Speaking on Halloween and Daubert

This Halloween I will be co-presenting a webinar with the Hon. Samantha Ruiz Cohen. The presentation is sponsored by the Florida Bar Family Law Section. The webinar will discuss Florida’s dark, lonely road to a new standard for admitting expert testimony: Daubert Returns.

Daubert

The presentation addresses the changes to §90.702 and §90.704; how the new Daubert standard differs from Florida’s old Frye rule; the Constitutional problem, appellate cases applying the new standard; how the judge’s role has changed; and the new Rules’ impact on the admissibility of expert testimony in family law cases.

The webinar will take place tomorrow, October 31, 2019 beginning at noon.

Did I mention the witches?

There is still time to register by clicking 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.