TIPS for Drafting Family Court DECLARATIONS
Rules for Declarations Filed In Family Court
Whether you are a self-represented party or an attorney, I want to remind
you that rules govern the declarations that you file in family law proceedings
- and that failing to understand them won't merely irritate your judicial
officer, you may find your evidence and arguments ignored. Conversely,
if you comply with the rules (especially when the other party does not)
you may get a leg up on your opposition.
Given the pressure of budgetary cuts, California family judges are using
all tools at their disposal to reign in litigants in terms of the demands
they make on the Court's time. One method that they've seized
upon is provided by California Rules of Court, Rule 5.118. Expect to see
bench officers becoming far less flexible in terms of deviating from these rules.
Rule 5.118 limits the length of "a declaration attached to a request
for order" to ten pages. Likewise, a responsive declaration to that request cannot exceed ten pages.
A reply must not exceed five pages. The only exceptions apply to declarations
from expert witnesses, or where leave of Court is granted in advance for
a longer pleading. BEWARE: The total number of pages for all your declarationscombined cannot exceed the proscribed number. If you have five declarations to
submit in opposition to a Request for Order, that means an average of
2 pages per. Points and authorities do not count against the 10, but they
likewise cannot exceed the page limit.
This can seem like a very tall order. I was reminded of this rule recently
when a Stipulation to set a briefing schedule was sent to our local famly
court judge, who sits in Indio, and the judge inserted language above
his signature that "all declarations shall comply with CRC 5.118".
I had just completed all fifteen pages of my Reply Declaration that I
am filing next week, and I had a lot of detail that needed to be presented
to the Court - or so I thought. To my amazement as I began to shorten
the document, by cutting out my beloved turns of phrases and characterizations,
I found the clarity and persuasiveness of my declaration to vastly improve.
As my regular blog readers know, I am (unfortunately) rather wordy at
times. I do love a clever turn of phrase. It was heartbreaking, at first,
to cast my pretty sentences into oblivion. It did lead to one small epiphany
however - I realized that a good portion of what I had written was really
argument disguised as a factual recitation. Obviously, the two can seem
to overlap quite a bit. But declarations should not contain argument.
That is reserved for "Points and Authorities".
In order to be effective in your written presentations, it is helpful
to follow some simple rules:
- Less is more. We are always more effective when we make our points in as
little space as is possible.
- Always use declarative sentences and active verbs. Make your sentences short.
- I recommend revising your declarations, especially if they contain any
complex thought or transactions, between five and ten times (or more).
Find a disinterested person to read your declaration for sense. It is
amazing how well we may know what we intend to convey, and how myopic
we become in reviewing our own expressions of it. It often becomes impossible
for the writer/speaker to see the shortcomings of our presentation.
- Consider the demands you are making on the reader: How can you make yourself
understood most efficiently? Our task is to make it easy for the reader.
- Avoid inflammatory soundbites, and never disparage the other party or their
attorney - especially when they've disparaged you. This plainly reflects
badly on you, and while it may feel good for the moment it only hurts
the perceived 'justness' of your claim. Wonderful advantages can
be obtained when your work product is obviously more professional, better
organized, and clearer than your opponent's. Moreover, judges shut
down when they are forced to read the same old petty attacks.
- Think about how to get as many lines as you can on the page. Use 12-point
font, possibly Arial or Times New Roman. Make sure for pleadings that
you use all 28 numbered lines.
- Be very sparing in utilizing emphasis, whether it be underlining, caps,
or bold. Too much emphasis on a page feels to a judge like you are screaming
at them, and it makes you appear to be very emotional. Once a judge gets
the sense that your recitation is all emotions, he/she will discount everything
you say. Except with headings, I recommend you avoid caps altogether.
Likewise, bold lettering is distracting - particularly where it is overused.
If you underline, only underline those portions worthy of special emphasis
and don't overuse it. Underlining can be a very effective way of getting
a point home to a reader who is scanning the document. I tend to use italics
to denote a feeling of irony.
- Avoid repetition. Some points bear repeating, but rarely more than twice.
- Consider using bullet points. They are an effective way of telling the
Court that this is a synopsis of the highlights.
- I may not be the most efficient person, but when I draft a declaration
I may well put in everything including the kitchen sink, but then the
task becomes to pare it down. This allows me to evaluate the relative
importance of the information, and to toss out the stuff that has relatively
little worth for the trier of fact. It also helps me to develop my theory
of the case, and in particular in finding the compelling "hooks".
Remember - while I wouldn't do it with your main points, or where you
must get a statement or exhibit "into evidence", it never hurts
to close the loop on the implications or inferences of your evidence in
the oral presentation to the Court, as opposed to putting it in your declarations
and then simply restating it to the Court.
You might want to read this article by Judge Dale Wells.
Judges form their first impressions about you and your case from what they
read in the pleadings. Often their review is exceedingly brief. It is
essential that you make your points cleanly, and that you avoid emotionally
based complaints or arguments. Save something to tie it all together for
the courtroom presentation.
Also, if you want pointers on how to interact with your family court judge,
or believe he or she hates you, read this!
T.W. Arnold, C.F.L.S.
Local Judges, General - What to do?, Court Rules and Procedures, Procedures and Mechanics of Dissolutions, Changes in the Law, Evidentiary Hearings, Reply Paperwork, Service of Pleadings, Difficult Judges, Best Practices, Motions and OSC's, Evidence Code and Objections, Evidentiary Objections