New Cal. Rules of Court, Rule 5.111 - Increasing Litigation Costs Impairs Justice

Important Changes to the Rules For Making Evidentiary Objections
to the Contents of Declarations That Support and Oppose Requests for Orders:
Meet California Rules of Court, Rule 5.111

Palm Springs Attorney Michael C. Peterson recently brought to my attention an important change in the procedural rules governing declarations filed in divorce and other family law proceedings. I find this one to be unwise. It rewrites what to do with evidentiary objections to information contained in party and witness declarations where the declarant lacks personal knowledge of "facts" they are asserting. Now any prudent lawyer or self-represented party has an increased burden to draft evidentiary objections to such improper matters, or risk the unsupported facts coming into evidence as though they are the truth. I imagine that the Administrative Office of the Courts is aiming to streamline litigation to ease the burdens on over-worked judges in these days of budgetary crisis, but because matters asserted that require personal knowledge may now come into evidence unless a written objection is filed at least two days prior to the hearing, new Rule 5.111 could have the opposite effect.

Effective January 1, 2013, former Cal. Rules of Court, Rule 5.118 has been repealed. It has been replaced by new Rules of Court, Rule 5.111. Subsections (c)(1) and (2) state:

(1) If a party thinks that a declaration does not meet the requirements of (b)(2) the party must file their objections in writing at least 2 court days before the time of the hearing, or any objection will be considered waived, and the declaration may be considered as evidence. Upon a finding of good cause, objections may be made in writing or orally at the time of the hearing.
(2) If the court does not specifically rule on the objection raised by a party, the objection is presumed overruled. If an appeal is filed, any presumed overrulings can be challenged.

For some cases it will add another layer of expense, effort and paperwork to comply with new Rule 5.111 and file written objections - which, after all, will be required of competent lawyers who practice according to the best standard of care. Since it may force another round of pleadings, I am having a hard time believing that it won't also make more work for judges if they read and rule upon them.

The emotional nature of family law disputes causes litigants - and their attorneys - to say highly reactive and inflammatory things in declarations that they hope will justify the orders they are seeking. Often much of what is said is speculative, irrelevant, is hearsay, lacks foundation, is argumentative, or alludes to alleged facts that violate confidentiality and other privileges (like settlement discussions) which have no place in affidavits or in either side's arguments. Until now a party faced with such vitriol or unsubstantiated "evidence" was free to make oral objections and requests to strike improper materials at the time of the hearing, without having to draft and file written objections that can be lengthy pleadings. While oral objections at the hearing remains the rule as to most species of objections, it is no longer safe not to file written objections to matters asserted that lack a proper foundation based upon personal knowledge.

If a party wishes to object to and strike any of the contents of a declaration, they may file "Evidentiary Objections". To this they attach the challenged declaration. They might circle or draw a box around the sentence(s) that should be stricken and assign a number to them. In their evidentiary objection cover sheet they then list the corresponding objections, along with a box for "overruled" or "granted" that the Court can check. Drafting evidentiary objections can be relatively simple or it can take a lot of time, depending on how much objectionable material there is.

It likewise takes time for judges to read and rule upon such evidentiary objections. This explains why many judicial officers ignore them and don't rule on them on the record, a custom that was approved in the Davenport decision. Presumably individual judges will continue to do what they are comfortable with, so it seems unlikely that new Rule 5.111 will cause them to change their practices. If so, then Rule 5.111 could increase litigation costs without adding benefits.

Am I making too much of this? Maybe. It depends upon how pervasive the improper matters contained in the other party's declaration are. Arguably it isn't a big deal if you are seeking to strike only a few sentences, although it still will require some amount of time that gets passed on to clients as fees.

There is an "efficiency" trend afoot that shifts the costs of litigation for the public generally to the parties themselves. This makes some sense, but remember that divorce is government sponsored, as is marriage. You can't do either without the state's approval, and some form of fee as a tax to pay the costs of bureaucrats, judges, and a cast of thousands. Possibly it is fair that the costs to access justice should become more specific to the individual litigants themselves rather than taxpayers at large.

Until people begin to adopt new strategies for relationship transition instead of high conflict litigation, and as long as some insist on engaging in circular and needless court-related arguments, we will be increasingly at the mercy of "efficiencies" that squeeze access to the courts. The days of litigating as a "matter of right" may be ending. The waste in divorce litigation is every bit as much a reflection of the insanity of our culture as is the debate over whether, for instance, people should receive social security without regard to their wealth. We are busting at our financial seams, and increasingly budget-pinched court administrators that shift the costs of business to individuals is but one reminder.

Is the new rule then actually a good thing? My argument with it is that it is another small step towards making family law cases more expensive for those who cannot afford them. Together with other changes like courtrooms being shuttered as in Los Angeles County, and a growing number of other small things (like being forced to "buy" minute orders that used to be freely available), it is one more nail in the access to justice coffin.

Divorce - or at least high conflict divorce with all its courtroom skirmishing - may soon become the playground only for the wealthier Americans. I worry for those people involuntarily engaged in the dissolution process who find themselves defending against over-exuberant party opponents, some of whom do use litigation costs as a cudgel to force settlements that are less than fair value. It take two willing people to opt out of divorce court and, for instance, to mediate instead. Often one party refuses, and so the other is stuck with the court system.

If you agree or disagree, write me an email or, better yet, comment to this Blog. Join the discussion?

Thurman W. Arnold III, C.F.L.S.