The Learned Treatise: Ever Offered One at Trial?

About 25 years ago as a lawyer I was in the midst of a custody trial when the opposing lawyer offered as evidence a scholarly article written by a University of Minnesota professor who had studied the adverse effects upon children of living with a parent with a chaotic lifestyle, ie. multiple residences and multiple partners.  Since this basically described my client, we were sunk and lost the case.  For years to come I reminded this attorney (we are now both judges) of how he "pulled a rabbit out of the hat" in that case.  I believe that most judges would find a learned treatise very helpful in deciding custody, parenting time and other family law issues. Rule of Evidence 803 (18) provides that a learned treatise may be admitted under certain conditions, but I think the reference to being admitted through an expert witness would probably not be required by most judges given the severely-limited resources of most family court litigants.  The Comments refer to the requirement that it be read into the record and not admitted as a trial exhibit as being applicable in jury trials.  This should be considered as another tool when your client can't afford the services of an expert witness.

We Need More Family Lawyers on the Bench

A shoutout to all who attended the MN Chapter of AAML's Divorce Camp at Breezy Point last week.  I participated in a judicial panel and thoroughly enjoyed myself.  I commented on the need for more family lawyers on the bench.  I admit I am biased as I was a family lawyer for 24 years and faced stiff competition to be appointed by those who has a lot more jury trial experience.  I think family lawyers (assuming at least 10 years in practice, a longtime unwritten rule) are well-equipped to serve on the bench, having represented many people with complicated legal, financial and social difficulties, as well as having to bill and collect fees from clients, hire and fire staff, and make the payroll and rent payments.  I encourage those who have never thought of applying to be appointed as a judge to seriously consider it.  Be forewarned:   it's a stressful and often discouraging process.  But still worthwhile.

Another Thing for Family Lawyers to Worry About: Clients Emailing From Work

There is an interesting and thought-provoking article on page one of the September 19 issue of Minnesota Lawyer about a recent ABA formal opinion stating that lawyers have the "duty to protect the confidentiality of email communications with one's client."  The ABA states that a lawyer must consider whether there is a significant risk that 3rd parties will have access to the communications.  Therefore, lawyers should be warning their clients about the potential hazards of emailing the lawyer from work or on a work-provided tablet or PDA or Smartphone, emails which are discoverable and are the property of the employer.  The same warning applies to the use of public computers, such as at a public library.  The same warning would apply to faxing something to your client at their work.  So, family lawyers, if you didn't have enough to worry about already, here is something else.

"Divorce- Beyond the Basics" episode of The District Court Show Viewable on Web

My guests on The District Court Show were veteran family lawyers Liz Schading and Bob Howard.  You can view this 30-minute episode at:

http://www.QCTV.org/districtcourtshow

We discuss a variety of divorce subjects "beyond the basics."

Kids' DNA May be Permanently Damaged by Parent's Stress

That children are often the victims of their parents' custody litigation is well-established.  A recent study, however, finds that a child's DNA may be permanently damaged by a parent's reaction to stressors such as job loss, marital difficulties or depression.  The following is a link to an article describing the study:

http://www.thedailybeast.com/articles/2011/09/12/parents-depression-and-stress-leaves-lasting-mark-on-children-s-dna.html