“If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see?”
– Lewis Carroll, Alice’s Adventures in Wonderland & Through the Looking-Glass.
My first court experience while cutting my teeth at Lundberg & Associates was the basketball equivalent of shooting free throws: processing evictions. The law was relatively simple, the rules of civil procedure at issue where clear, and everyone knew the rules, usually.
After departing on the adventure of starting my own firm, I found myself in the civil litigation world propounding the minutia of civil litigation both in federal court and state court discussing the nuances of expert witness testimony, privileges and dealing with insurance defense attorneys stretching the rules as far as they could to help their cause.
Now, because of the avalanche of domestic litigation finding its way to Arnold, Wadsworth & Coggins Attorneys, I find myself in what sometimes appears to be the bizarro world of civil procedure where to quote Captain Hector Barbossa in Disney’s “Pirates of the Caribbean,” “the code is more what you’d call guidelines than actual rules.” This article is written as a plea to our wonderful and brave court commissioners and the judges that oversee them to adopt uniform ground rules on certain topics, so practitioners can better serve the courts and counsel clients. There is ambiguity in the rules, which is the real culprit, and it needs to be resolved.
We are all familiar with the multitude of policies underwriting our civil litigation rules as well as the statutes governing our liberties. Our law school professors lectured us regarding interpreting the law and applying it in a way where all (or most) would reach similar results lest the naysayers cry foul play, bias or prejudice. Also, the uniformity of the law and its application serves the judicial economy allowing practitioners to counsel his or her clients in a way where out-of-court resolutions may more often be reached, so as to not bombard the courts with similar issues time and time again.
Naturally, because domestic law is so fact-intensive, there is an obvious rock-and-a-hard-place problem. Nevertheless, some rules I submit need to be uniform no matter the consequence.
First, the order to show cause. There is no uniformity amongst the judicial districts, judges within those judicial districts, or court commissioners within those judicial districts regarding the scope and boundaries of an order to show cause. Rule 101 states in pertinent part:
Limit on order to show cause. An application to the court for an order to show cause shall be made only for enforcement of an existing order or for sanctions for violating an existing order. An application for an order to show cause must be supported by affidavit or other evidence sufficient to show cause to believe a party has violated a court order.
Some courts allow the responding party to plead offsets having nothing to do with the applicant’s motion for the order to show cause, relevant or not, to offset the prospective damages turning the hearing into a he said/she said reality TV show where the parties fling all their dirty laundry in front of the court in hopes of plucking a heartstring. Others refuse to hear anything whatsoever from the responding party outside of the necessary standard of review i.e., knowledge of the order and willfully disobeying it. These courts often refuse to acknowledge even a counter-motion for an order to show cause without an actual order to show cause being signed, properly noticed and applied for.
When practicing under Rule 101, the plain language of the rule requires an application and a signed order to show cause to trigger the obligation to respond because an order to show cause is a contempt proceeding with the court not the opposing party. There is no procedure in the rules for hearing a counter order to show cause when filed under Rule 101(g) unless an actual order to show cause is signed by the court requiring the other party to respond. Some courts follow this procedure strictly.
Second: the objection hearing pursuant to Rule 108. When a party disagrees with a court commissioner the rules allow for an objection hearing and “upon request, to present testimony and other evidence on genuine issues of material fact” where the commissioner hearing “was held… on an order to show cause for the enforcement of a judgment.” Rule 108(d)(2). Further, if the order to show cause concerned domestic relations matters relevant to custody the party has the right to present testimony, but if the domestic relations matter concerned something other than custody the court may take evidence by testimony or proffers of testimony. Compare Rule 108(d)(3) (A) and Rule 108(d)(3)(B).
Frankly, there is zero uniformity in the judicial districts or amongst the judges and commissioners regarding the distinction between the two subparts of Rule 108(d)(3), or any part of Rule 108 for that matter. There is a due process right to cross-examine witnesses and conduct an evidentiary hearing when matters relate to custody. Rule 108(d)(3)(A). Further, it is common for different courts to allow other evidence to be considered at the objection hearing without it ever being offered before the commissioner in blatant violation of Rule 108(c) – even when no substantial change of circumstances is even argued much less overcome. Congruency amongst our courts regarding this procedural issue is advisable.
These are some of the examples of non-conformity, and there are others. Conformity amongst the courts, judges and commissioners on some of these ostensible minor procedural topics would increase judicial efficiency and allow practitioners to properly counsel clients. When the rules are not followed the court looks biased and prejudicial, and in an area of law where emotions are already heightened, it is the rules and uniformity in application of them which serves as the railing protecting clients from falling down the rabbit hole; nor are we Pirates of the Caribbean seeking to parley as if the rules were mere guidelines.
Please understand, this article is not written as a critique on liberal application of the rules of ethics and civility. The liberal granting of leeway on issues that don’t prejudice the client should always be followed, and a relaxation of some of the evidentiary rules in family law cases is certainly welcomed. This article is more of a plea for our courts to reach a uniform consensus in application of some of the ground rules that family law practitioners are struggling with every day due to the lack of conformity amongst our courts. It actually matters less what the consensus is, because we can adapt, but walking into court prepared for a full-fledged evidentiary hearing, which is what the rules call for, but ending up doing merely a proffer hearing, or preparing for a proffer hearing as called for by the rules and being told it is an evidentiary one is not good practice.
This article was originally published in the Attorney At Law Magazine for Greater Salt Lake City.
http://www.attorneyatlawmagazine.com/salt-lake-city/mad-hatters-rules-civil-procedure/
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