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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.


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