New York Family Law Monthly

June, 2009

IMPORTANT RULES OF EVIDENCE FOR FAMILY LAW ATTORNEYS

Part One of a Three-Part Article

Bari Brandes Corbin and Evan B. Brandes [FNa1]

Matrimonial and family law attorneys who only try divorce and custody cases know

that all issues besides the grounds for divorce are tried before the court without a jury.

In such cases, the rules of evidence are often relaxed. While this can make for a more

straightforward presentation of evidence, it can also leave family practice lawyers

unfamiliar with new or little used rules of evidence. In this article we discuss some of

those important rules that every family law practitioner should become familiar with.

CLIENT COMMUNICATIONS

Very often, a judge will ask attorneys a simple question regarding their clients, such

as, "Was your client advised of the temporary restraining order?"

or, "Did your client transfer the property?" The answers to such questions, if given, may

make the attorney unwittingly guilty of violating the attorney/client privilege. The

answers may also be considered by the court to constitute an admission by the client.

Civil Practice Law & Rules (CPLR) s 4501 provides that '[a]n attorney, who receives a

confidential communication from the client in the course of professional employment,

may not disclose, or be allowed to disclose the communication, nor shall the client be

compelled to disclose the communication, in any action or hearing." A communication is

considered confidential when the client intended to make it in confidence and had a

reasonable expectation of confidentiality. People v. Osorio, 75 NY2d 80 (1989). In order

to make a valid claim of privilege, it must be shown that the information sought to be

protected from disclosure was a "confidential communication" made to the attorney for

the purpose of obtaining legal advice or services. Matter of Jacqueline F., 47 NY2d

215 (1979). Legal advice given by an attorney to a client is a privileged communication.

Spectrum Systems v. Chemical Bank, 78 NY2d 371 (1991).

Counsel has an ethical obligation, in a situation like the one described above, to object

when asked by the court to speak on behalf of a client, absent the consent of the client.

Counsel has no right to reveal a client's confidences unless the client waives the

privilege.

ADMISSIONS BY COUNSEL

Attorneys should always choose their words carefully when communicating with an

adversary. Statements made by an attorney, while acting in the capacity as an

attorney, are admissible against the client. Bellino v. Bellino Construction Co.

Inc., 75 AD2d 630 (2d Dept., 1980). The statements must have been made by the

attorney while acting in his authorized capacity. Burdick v. Horowitz, 56 AD2d 882

(2 Dept 1987); Treadwell v. Doncourt, 18 AD 219 (2 Dept. 1897).

SETTLEMENT COMMUNICATIONS

The common law rule in New York, enunciated in White v. Old Dominion S.S. Co.,

102 NY 661, 662 (1886), was that admissions of fact, made during settlement

negotiations, which were expressly stated to be made without prejudice, or of such a

nature that it would not have been made except for the purpose of settlement, and

under an agreement that could fairly be implied from the circumstances that it was not

to be used afterwards, were not admissible. Thus, unqualified statements of fact made

during settlement negotiations were admissible against the party who made the

statements. Reid & Priest LLP v. Realty Asset Group Ltd., 250 AD2d 380 (1st Dep't

1998). However, admissions of fact explicitly or implicitly made "without prejudice"

during settlement negotiations were protected from discovery pursuant to the public

policy of encouraging and facilitating settlement. White v.

Old Dominion S.S. Co., supra. Where the factual statements in a letter were prefaced

with the words "without prejudice," the factual statements made in the course of the

negotiations were inadmissible.

Enacted in 1998, CPLR "4547 provides that the settlement of a disputed claim or an

offer to settle the claim is inadmissible to prove either liability, the invalidity of the claim

or the amount of damages. The claim or its amount must be "disputed" at the time of

the communication. Whether a "dispute" actually existed at the time of the

communication is a question of fact for the court to decide.

CPLR" 4547 also provides that evidence of any conduct or statement made during

compromise negotiations is also inadmissible. However, the provisions of this section do

not require the exclusion of any evidence, which would otherwise be discoverable,

solely because the evidence was presented during settlement negotiations. This

evidentiary exclusion for settlement discussions does not limit the admissibility of such

evidence when it is offered for another purpose, such as proving bias or prejudice of a

witness, negating a contention of undue delay or proof of an effort to obstruct a criminal

investigation or prosecution. For example, the rule would not exclude settlement

evidence relative to the issue of credibility, such as evidence tending to show a

witness's bias, hostility or motive to lie. Matter of Edward F., 154 AD2d 464 (2 Dept

1989); Hill v. Arnold,

226 AD2d 232 (1 Dept 1996).

It is a common practice for attorneys to send letters to their adversaries containing

settlement offers. Although such letters, which may contain admissions, are not

intended to be presented to the court, an unscrupulous attorney may attempt to offer

the letters into evidence during the trial to demonstrate how much was offered as a

settlement and rejected. For this reason, it is a good idea to indicate in any letter

containing a settlement offer that it is being sent "for purposes of settlement only and

without prejudice," so that the contents of the letter are excluded pursuant to CPLR" s

4547.

PRE-TRIAL WITNESS LIST

Some matrimonial judges require the parties to submit, in advance of the trail, a list of

witnesses they intend to call to testify. Upon objection, such judges prohibit a party

from calling as a witness a person who is not on their witness list. While CPLR s

3101(d) requires parties to disclose their expert witnesses, and 22 New York State

Codes, Rules and Regulations (NYCRR) 202.16 (g)(2) requires the parties to disclose

expert testimony, there is no provision in the Civil Practice Law and Rules or the court

rules for the submission of a list of the non-expert witnesses a party expects to call to

testify. There is no case law or rule of evidence that permits a judge to prohibit a party

from calling a witness merely because that person is not on their witness list.

ONLY ADMISSIBLE EVIDENCE MAY BE CONSIDERED BY THE TRIAL COURT

The law indulges in the presumption that a trial judge's decision rests only on

competent evidence. People v. Quarles, 187 AD2d 200 (4 Dept 1993). Prince,

Richardson on Evidence, 11th Edition, 1-103. Thus, when the case is tried before a

judge, only evidence that may be considered by a jury may be considered by the court.

FNa1. Bari Brandes Corbin, a member of this newsletter's Board of Editors, maintains

her offices for the practice of law in Laurel Hollow, NY. She is co-author of Law and the

Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West). Evan B.

Brandes, also a member of this newsletter's Board of Editors, maintains his office for

the practice of law in New York. (c) Copyright, 2008. Joel R. Brandes Consulting

Services, Inc., Bari Brandes Corbin and Evan B.

Brandes. All rights reserved.

END OF DOCUMENT