Exhibit Lists in Family Law: The Basics
Exhibit lists, otherwise known as pretrial exhibit lists or trial exhibit lists are lists of the pieces of paper, electronically stored information, or physical objects a party anticipates introducing at trial, along with a brief description of the evidence.
A party submits an exhibit list to the Court after trial briefs (which are usually due at least one week before trial). Family Code § 217 requires that the parties file and serve exhibit lists and etc. at least ten days before trial (unless the Court orders otherwise). The Court may require the parties to file and serve a final exhibit list at least three days before trial. During trial, the parties may amend their exhibit lists only by leave of court (permission from the Judge). As with all things in Family Law, it is possible that the Court will tell you that this can be worked out between counsel. In practice , most judges will allow a party to present an additional exhibits if they do not slow the process down much and if the other party does not have a big objection. However, the law is simple, supplemental exhibit lists will not be allowed without the permission of the judge.
An exhibit list for a California Family Law case may be a simple list made up of Bates stamped documents/copies and physical items/matter. This is usually the case in cases where all of the exhibits are linked electronically. For many Family Law cases, electronic exhibit organization may not be practical. While many courtrooms have scanners, some do not. Further, a scanner can be slow, leading to delays in presenting exhibits. For these reasons, in practice we often prepare a set of two or three copies of all of the exhibits offered at trial. In some cases, both sides may agree on way to organize exhibits and save time during trial.
How to Prepare an Exhibit List in Family Law
Step 1: Use a numbering system
For example, Exhibits 1 – 10 for Plaintiff’s Information Request Exhibits, and then Exhibits 11 – 20 for Defendant’s information requests.
Step 2: List the documents in chronological order, starting with the earliest document produced.
Step 3: Title each document according to the common name of the document.
Ex.:
Credit Card Statements
1 BofA Visa Credit Card Statement for period of September 1, 2008 – December 31, 2008
2 Chase Signature Credit Card Statement for period of February 1, 2009 – May 31, 2009
3 BofA Visa Credit Card Statement for period of June 1, 2009 – September 30, 2009
3 Chase Signature Credit Card Statement for period of October 1, 2009 – January 31, 2010
4 Chase Signature Credit Card Statement for period of February 1, 2010 – May 31, 2010
5 BofA Visa Credit Card Statement for period of June 1, 2010 – September 30, 2010
Tips: Don’t throw away your copies of exhibits until the litigation is over. You will need them if the other party decides to produce more documents than you. A judge could only consider those documents produced by the court’s deadline. The court’s deadline on document production is usually 45 days after the service of discovery requests. For example, interrogatories and requests for production of documents could have a hearing date in November, but the date imposed by the Court itself does not occur until December. If a party receives the documents on the motion to compel hearing date, they will have the entire December month to review the documents and produce their exhibits in response to the court’s order.
Common Types of Exhibits in Family Law Litigation
Exhibit lists in a family law case are used to identify those documents or items of tangible evidence that are intended to be introduced at trial. For example, items commonly included on an exhibit list in California would be copies of bank and credit card statements, business records, wage statements, pay stubs, tax returns, medical records, school records, photographs, letters, emails, text messages, phone records, reports and other records, documents and items that are relevant to issues being litigated. While it is not common to admit documentary evidence in a family law proceeding, requests for production of documents are usually honored, and in most circumstances evidence will be provided to an opposing party. The failure to present a copy of or provide a list of the evidence intended to be relied upon risks being precluded from offering evidence at trial.
Filing and Submitting Your Exhibit List: The Dos and Don’ts
Section 219 of the Family Code requires that exhibit lists be filed in family law matters, and typically these lists are created as separate documents. Some judges will want exhibit lists ahead of the mandatory meet and confer deadline for trial. If exhibit lists are uploaded prior to the meet and confer deadline, they will not be accepted by the court and will be automatically rejected by the court’s e-filing software. Other judges will require these lists to be uploaded at least two days in advance of the trial. Still other judges will not require exhibit lists at all.
If the court does not require exhibit lists, or does not require them to be uploaded at least two days in advance of the trial, then an attorney for one party can serve a notice on the other party requesting that they upload the exhibit list at least two days before the trial, and file the hard copy of the exhibit list with the court as well. If the party notices the other party for this remedy, the party who receives the notice must upload the exhibit list and send the hard copy to the court.
In addition to a party filing the hard copy of the exhibit list with the court, the party or attorney must also deliver a copy to the judicial officer who will be handling the case. Failure to deliver the filed copy may result in sanctions. Other useful tips include: Generally speaking, unless ordered by the court, parties do not need to meet and confer on exhibit lists, even when Cal. Rules of Court, rule 3.1115, directs that parties to meet and confer regarding trial readiness.
Common Pitfalls to Avoid with Your Exhibit List
Just like any other list, there are right ways and wrong ways to go about preparing and submitting an exhibit list in a family law case. While there are no hard and fast rules about what constitutes a "correct" exhibit list, there are many common errors made by do-it-yourself litigants and counsel in preparing their list or splitting up exhibits between two parties.
Below is a list of the most common mistakes made with exhibit lists and how to avoid doing them:
- Underscore or otherwise emphasis evidence that you think is important: Family law courts are busy places. As such, judges and support staff will necessarily get annoyed if you waste their time by indicating that every one of your 50 exhibits is "important." If you have only a couple of pieces of evidence that are truly your show stoppers, focus the judge on those.
- Asking for an exhibit list from the other side: If you have four exhibits and she has 12, you can be sure she will put her 12 exhibits before your four. This is human nature. If you know the other side has more evidence than you do, and you have to divide the exhibits , then create a first half and second half. Give them half.
- Making last minute changes: Your exhibit list is a tool you have to give the judge ahead of time to help him or her follow along as you present your case. The more last minute changes you make to the exhibit list the less helpful it is. Even if you are about to present a new document or piece of evidence you just found at the last minute, it’s better to let the court know you have it, but that you will track it down and provide it at a later date.
- Numbering and sticking to the numbers: If you are going to divide exhibits between the parties, keep in mind that you have to present your evidence in the same order you present your exhibit list. If your first document is number 14, your second has to be 15. There is no way to insert an exhibit in between. Orderliness counts and it reflects on professionalism.
- Overstating or understating the quantity of your evidence: If you indicate that you have 35 exhibits when you only have four of them, the judge is going to think you are wasting the court’s time with worthless evidence. Likewise, the opposite is also true. If you indicate you have have six exhibits, but there are only two, it might appear to the judge that you don’t know what you’re doing; you don’t have the foggiest idea of what evidence you have, therefore, you don’t really belong there.
The Consequences of a Poorly Drawn Exhibit List
In California family law cases, the admissibility of documents and other evidence is often determined in large part by the showings made in exhibit lists that serve as a preliminary notice of the evidence a party expects to offer at trial. Such lists, required in all California family law cases and other civil litigation, are governed by California Rules of Court, Rule 3.1115 (a), which requires all trial exhibits to be first listed in the order of presentation, and be numbered and served on all other parties at least 5 days before the trial begins. Rule 3.1115 (b) provides a list of clearly defined exceptions to this rule. In the absence of any of the listed exemptions, failure to provide a timely and adequate exhibit will have serious and real words consequences.
For example, the failure to timely identify exhibits with declarations and pretrial orders showing that the other parties were given notice of the evidence you planed to present at trial can result in the inadmissibility of evidence on these basis alone. In the case of In re Marriage of Binder (2000) 141 Cal.App.4th 757, 761, Concurring Opinion; In re Marriage of Saget (2007) 156 Cal.App. 4th 1535, 1542 (reversing the lower court’s decision to allow parties’ to enter evidence at trial contrary to their previous trial exhibit list); In re Marriage of Copeland (1998) 65 Cal.App.4th 425 (Stating that the improper rejection of the husband’s trial exhibits warrants reversal). Mind you, the failure to properly identify evidence is different from the admissibility of same. Where in the latter, a court may admit an exhibit where the foundation for same is properly laid after the fact, in the former case, a court has no discretion to allow the admission of an exhibit where the requisite disclosures and notice is absent. Thus, where a party repeatedly fails to identify exhibits in violation of this rule, a judge may very well exercise their discretion to prevent a party from entering such evidence at trial.
In Kevin R.C. v. Brandy R.C., (2004) 130 Cal.App.4th 89, a father appealed a restraining order preventing him from contacting his daughter or ex-wife based upon allegedly false allegations made by the mother. On appeal, the court reversed the lower court’s decision because the mother failed to file a Rule 3.1115 (a) exhibit list which identifying the evidentiary basis for the lower court’s determination and had failed to give proper notice that she intended to rely upon the FBI’s background check, the rap sheets, or photographs in support of her petition. In reversing the lower court’s decision, the appellate court held that: Relying upon In Re Marriage of Binder (2000) 141 Cal.App.4th 757 ["when a party does not include the evidence it expects to present at trial in its exhibit list, it is not error to exclude the evidence based on the rules of discovery"].
In the context of California family law cases, the consequences for failing to prepare a proper Rule 3.1115 (a) exhibit list could result in the denial of support, a lack of reimbursement for post-separation debts, a loss of rights in a marital rights property, or the inability to remain present to protect oneself from a restraining order.
Expert Tips for Your Exhibit List in Family Law Proceedings
The key to an effective exhibit list presentation lies in the overall organization and attention to detail. Below are some strategies that legal experts recommend for attorneys and self-represented parties regarding the creation of exhibit lists which pack a powerful punch during family law proceedings.
Start with a Comprehensive Preliminary Meet and Confer with Your Opponent But, if there is no seemingly available "meeting of the minds" over the issue of what is in dispute, an attorney should consider the use of an email to their adversary which states the following: "If we cannot agree to bargain in good faith over what is at issue in this case and/or what needs to be proven in this case, I am not going to waste the time or money of my client by having the litigation waged in this way. I will instead prepare for trial examination of the exhibits and witnesses I intend to present to the Court at the time of trial." (The above is an example only and not to be copied verbatim) There is no legal requirement that you meet and confer with your wife/husband over the contents of the exhibit list under California Rule of Court 5.410. However, while we may NOT NEED to meet and confer in good faith over the contents of our exhibit list, it cannot be stressed enough how critical it is to remember – even in contentious OC litigation – that the probability of settlement increases, all things considered, when all parties COMMUNICATE over the issues without rancor.
Knowing the Opposition’s Exhibit List in Advance Always be mindful of the fact that the opposing side might have their own outstanding exhibit list and the court is going to rule upon both sides at the same time. This means we are often forced to anticipate what the opposition will be introducing into evidence at trial. It is for this reason that we harness the power of a preliminary "Meet and Confer" process, which is a time honored and regularly substituted course of action by many experienced family law attorneys. I have a love/hate relationship with this concept. On the one hand, I want to know what evidence is going to be introduced on the opposing side and give them a chance to "be heard" on the potential use of my exhibits and witnesses. (We all know why timely discovery is so important-in the event of last minute surprises). However, we also need to keep in mind that judges appreciate it when we respect the process and keep them apprised of what we are going to be doing at trial. We also save the court time because we try to avoid wasting it on the pointless discussion of things we both already know are NOT going to be used at trial. These points are all important in the family law context and the theme here is to be CREATIVE.
If Necessary, Use a Trial Brief to Be Heard If the case has been extremely difficult to discuss with the other side and you are convinced that the other side would contest every single piece of paper listed on Exhibit List A, when they really know that they too need to introduce their own exhibits to trial, then we have a huge problem . This is when we take the time to do a "Trial Brief." I usually send out to the other side a sample exhibit list based upon my belief as to what the judge would allow into evidence. I then state, "If you do not agree with this good faith offer, I am going to be quite irritated because [and I fill in why the other side is being unreasonable – an example might be the other side intends to try and introduce evidence at trial to prove double hearsay- something I will not be able to contort Exhibit List A to justify]. Accordingly, I am going to file the attached Trial Brief with the court where I will ask the Family Law Judge to use their sound discretion and allow for the simplest and most efficient introduction of the financial documents, in order to avoid a "dueling columns" presentation at trial. It will also help us save trial time and the judge will appreciate it."
Usually, I get the other side to concede that it is in every party’s best interest to have one type of financial exhibit list that has been agreed upon by all, to avoid needlessly introducing walls of documents that frustrate EVERYONE to death. I usually get the other side to concede too that they do not want the Judge to have to decide whether "the red ink line" or "the blue ink line" should prevail in the event the print reveals both at the same time. (And, yes, I have had Family Court "do darken and highlight" exhibit lists before and have had to fight over the colors of ink next.)
Use Jointly Agreed Upon Evidence Presentation Tools at Court There are upsides downsides to both using the income tax software and the "Lite" Excel tools. The bottom line is our job is to present evidence in a way that the court appreciates and understands, without unnecessarily expending too much time or money in the process. For me, I do not use the "Lite Software" anymore. I tried it out for about four months in the Court and though I liked it-I felt like I was redoing work that should have been completed Cardot Report. The Cardot report is a blank spreadsheet provided to the IRS and which identifies income, deductions, etc. on the IRS standard form. No one – from the sheriff to the judge – can possibly read a family law matter and understand the taxpayer returns if we make them work for it by not having those numbers visible on the cardot report. If all of us were accountants, this would work but the back and forth games that I have witnessed make it invaluable to have bread crumb trails in the form of the Cardot.
The "Lite" software is great if the form and dysfunction of the opposing side is worth it. I decided not to use it anymore, as it has been a while since I have trusted the opposing side of my clients. While I can easily discuss these points over this page, what really makes these successful exhibits at trial is knowing the facts, the law and the rules of court. Best of luck to you in your next family law matter!