An Evidence Code Primer for Family Law Attorneys Part I: an Overview and General Approach

• Publication year: 2018
• Author: Hon. William J. Howatt, Jr. (Retired) and Stephen D. Hamilton

An Evidence Code Primer for Family Law Attorneys Part I: An Overview and GeneraL Approach

Hon. William J. Howatt, Jr. (Retired) and Stephen D. Hamilton

Hon. William J. Howatt was appointed to the El Cajon Municipal Court in 1979 by Governor Edmund G. Brown, Jr. and to the San Diego Superior Court in 1987 by Governor George Deukmejian. In the Superior Court he served as Presiding Judge of the entire Court in 1996 and 1997, on the Appellate Division of the Superior Court, and culminated his career on the bench as Supervising Judge of the Family Law Division. His legal career included over ten years as a Deputy District Attorney for the County of San Diego, including felony trials, the Fraud Division and the Appellate Division. Judge Howatt frequently lectures on Evidence law and has designed a special three-evening Evidence program for family law attorneys. He retired from the Bench in December of 2006. Since retiring, he does arbitrations and mediations with JAMS in San Diego and acts as a privately compensated temporary judge.

Stephen D. Hamilton has been an attorney for 22 years, with a practice devoted almost exclusively to family law for 20 of those years. He has been a Certified Specialist in Family Law since 2004. He is currently a member of the California Family Law Executive Committee, for which he is the Legislation Chair. He is a member of ACFLS and serves on the ACFLS Outreach and Amicus Committees. He is also chairperson of the San Luis Obispo County Family Law Section.

Stephen A. Kolodny, an extremely well-respected family law attorney, recommends that attorneys read the Evidence Code annually and before every trial. At first blush, that comment might appear to be tongue-in-cheek. It is not. It highlights the importance of knowing the Evidence Code as a trial skill. As Stephen has explained, repeated sustained objections often cause insecure lawyers to abandon even good testimony, and cases are sometimes won that way. We have all noticed with alarm how the recent case of People v. Sanchez, 63 Cal. 4th 665 (2016) has shaken family law litigation to its core.

Sometimes, it seems as if the Evidence Code does not exist in family court, mysteriously disappearing when we enter the courtroom. Whether because of the lack of family law-specific courses concerning the Evidence Code or the lack of a treatise specifically devoted to the Evidence Code in family law, both the bench and bar regularly encounter instances in which the Evidence Code is ignored or misapplied in family law matters. The "Table of Statutes" for the invaluable California Practice Guide: Family Law (The Rutter Group 2018) contains eighty pages of citations. Only 1½ of those pages pertain to the Evidence Code. For whatever reason, the Evidence Code is at times an afterthought in the practice of family law.

To start you on your path to understanding and mastering the California Evidence Code, we offer you this three-part series discussing Evidence Code issues and strategies for family court. Part I will address an overall approach and overview of the Evidence Code in family law. While it contains some legal citations, this Part I is intended to provide an overview and general approach to evaluating and presenting evidence. More substantive discussions will follow in Part II, which will address specific issues concerning testimony including hearsay, lay testimony and expert testimony. Part III will cover documentary evidence, exhibits and other non-testimonial evidentiary issues. On December 13, 2018, the Family Law Section will be hosting a webinar presented by the authors to address some of the evidentiary issues not covered by this series.

What is Evidence?

"Evidence" means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.¹The Law Revision Comments from 1965 when section 140 was enacted make clear that evidence was to be broadly defined and could include sights (such as a witness's appearance), sounds (such as an audio recording) and "any other thing that may be presented as a basis of proof."

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Why is the Evidence Code Important?

Evidence is a basic tool of the legal profession as much as the hammer is to the carpenter. A good working knowledge of the Evidence Code as well as the nuances and interrelationship of its sections are hallmarks of a competent attorney. This knowledge is not just necessary for trial; it is critical to providing your client with a complete and accurate assessment of their case, as well as for developing tactical strategies.

Your worst nightmare as a family law litigator is an opponent who not only knows the Evidence Code but also knows how to use it. The ability to cite code sections is just one part of mastering evidence. A more nuanced issue is being familiar with your judicial officer and knowing when to make an objection. Just because you are technically correct, objecting to opposing counsel asking their client, "did you buy the Mustang in 2018?" as leading will not curry favor with most judicial officers and merely wastes time.

Evidence is by the Book [Until a Reviewing Court Says Otherwise]

Quite literally, evidence is supposed to be treated "by the book." California Evidence Code § 2 starts by stating that common law has no application to the Evidence Code. It provides that the Evidence Code "establishes the law of this state respecting the subject to which it relates, and its provisions are to be liberally construed with a view to effecting its objects and promoting justice." However, the California Supreme Court has rejected a literal application of section 2:

[T]he purpose of all rules of evidence is to aid in arriving at the truth, [and] if it shall

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