Procedure and Evidence Rules

You hired a lawyer in part to navigate your divorce through the legal process. Your lawyer knows the procedure and evidence rules — he'd better, because it's a given you don't know them. Focus on the content of the testimony, and let your lawyer flex legal muscles on your behalf. That being said, if you are concerned that your lawyer is sitting at the table not paying attention to what's happening, speak up!

Procedure Rules

Procedure rules apply to how things are done in the legal process. For example, in a divorce, the plaintiff or petitioner presents her case first and the defendant or respondent goes second. There are the rules that govern how many days before trial you have to provide your witness list to the other party or exchange exhibits that are to be used at trial. They're kind of a cookbook on how to make a lawsuit.

Evidence Rules

Rules of evidence govern what evidence and testimony is allowed to be considered by the judge at trial. This issue provides a lot of confusion for most litigants because the rules of evidence are confusing, even for lawyers. For example, it may be hard to understand why a letter from your employer stating what you pay for the cost of your spouse's health insurance isn't enough to prove what you pay. After all, you got the letter from your employer. But the judge and your spouse don't know that for sure, having only your word to rely on. For this reason, you will have to subpoena someone from your job to come in and verify what you pay.

A counselor may not be able to testify about what your spouse said unless your spouse has given a release to provide the information. Otherwise, it may be considered privileged, like communications between a lawyer and client. Under some situations, a court can order a spouse to provide a release for a counselor to testify or face a negative outcome if he refuses.

The rules of evidence are designed to make sure the court is considering the most reliable evidence and testimony in making decisions. Because the rules of evidence differ from jurisdiction to jurisdiction, you will have to rely on your lawyer's expertise to understand why a particular piece of evidence or testimony is admissible or not.

Here are some examples of important rules of evidence:

  • Hearsay rule. This rule says you can't tell the judge what someone else has said unless that person is going to testify and unless you heard it yourself. So, you can tell the judge what your spouse said because she is a party to the divorce, will hear your testimony, and will be able to respond. But you can't tell the judge your marriage counselor said your spouse was behaving irrationally. If you want this information to come in, the marriage counselor will need to be a witness. There are numerous exceptions to the hearsay rule, which your lawyer will know and use at trial to get testimony and documents admitted.

  • Relevancy rule. All testimony and documents must be relevant to the proceedings at hand. For example, if you have already resolved custody, the court is not going to hear you testify about what a bad parent your spouse is just to make him look bad.

  • Privileged communication. You will not have to testify about information that you gave to someone if a privilege exists. Examples include conversations and some written exchanges between lawyer and client, doctor and patient, psychologist and patient, and drug counselor and patient. Be aware that just because a privilege exists, that doesn't mean that it can't be waived, either by your actions or your words. For example, if you tell your lawyer that you broke into your spouse's business and stole $1,000 from the register, your lawyer cannot tell anyone about this. However, if you told your best friend what you did, the fact that you also told your lawyer doesn't protect you.

  • Self-incrimination. A court cannot force you to testify about facts and circumstances that would result in your admission to a crime. Be aware that if you admit to your lawyer that you committed a crime, you cannot then get on the stand and say you didn't commit the crime; you can only say that you refuse to answer on the grounds that it could incriminate you. Your lawyer cannot knowingly allow you to lie to the court.

  • Perjury. The lawyer's code of professional conduct does not allow your lawyer to put you on the stand and allow you to lie. This means that you cannot tell your lawyer one version of the story and then get up on the stand and tell a completely opposite version in order to make yourself look better.

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