The Durst Firm

In today’s world, much of our communication with one another takes place in the form of emails, text messages, posts to social media sites, and voice mail messages.  Often, the contents of these electronic forms of communication are critical pieces of evidence in NJ family court proceedings, particularly domestic violence trials.

What happens at final hearing when a party seeks to introduce texts, e-mails, social media messages, or audio/visual evidence directly from his or her cell phone?  In a recent decision by Judge Jones, he offered constructive guidance on this isuses.

cell phone evidence

First, when a litigant attempts to offer into evidence images on a cell phone screen, it is difficult to preserve that evidence in the court’s file for the record.

Second, a  cell phone has a small screen. Consequently, only small portions of documents may be viewed at one time and it is difficult to view the entire exchange in its proper context. A judge trying to read lengthy information on a cell phone screen might have to continuously scroll upward or downward to see the entire conversation. It may be very difficult for a judicial fact finder to analyze and consider the totality of a document which can only be seen in tiny partial fragments at a time. Moreover, it can be equally challenging for the court to view and compare messages, emails and texts side by side when cell phone screen has no room to accommodate same. If a party is attempting to introduce a thread of ongoing text messages or emails from a lengthy electronic dialogue between the parties, the process of scrolling can be even more time-consuming and cumbersome.

Third,  it is extremely impractical for the court and both parties to all view evidence on al cell phone at the same time, as compared to viewing duplicate hard copy printouts of the same document. Without such copies available, a party’s cell phone may actually have to be passed around in triangular fashion between the plaintiff, the defendant, and the court. This process may then have to repeat itself for viewing each and every document, or different portions of the same document, constituting a procedure which is almost certain to significantly slow down the trial itself. As obstructive and unnecessarily time consuming as a repetitious, pass-around-the-phone process can be, the procedure is particularly challenging in domestic violence final hearing, where there is already a temporary restraining order (TRO) in place, and where the parties cannot physically sit or stand next to each other to jointly view the tiny cell phone screen at the same time. In fact, a sheriff’s officer might literally have to sit in the middle of the parties’ respective tables and pass the cell phone between them and the judge for viewing by each party and by the court. Additionally, if multiple individuals are handling the device, there is an increased risk of accidental destruction of evidence.

Fourth, if a party orally reads a text or email into record, and if the other party and the court have no available hard copies from which to simultaneously read and follow along, there is no guarantee that oral recitation is accurate. The process of reading messages onto the record can be  time-consuming and confusing if there are multiple lengthy texts and emails between the parties from various past relevant dates and times. There is also the reality that messages may not be in English and therefore a translator would be required to assure of accuracy.

Fifth, as regarding voice mail evidence stored on cell phones, it is often difficult to hear the exact words of an audio recording after only one review, and may require more attempts.

Sixth, if after the close of testimony, the court wishes to again review all electronic cell phone evidence as part of process of judicial deliberation before rendering a decision, the court is practically unable to do so without the benefit of hardcopy forms of such evidence.

While the above-referenced challenges may at times be significant, they can potentially be mitigated if a litigant is advised in advance that if he or she wishes to introduce cell phone evidence in the hearing, such evidence should optimally be made available in tangible oan organized, duplicate hard copy form for potential use at trial, as follows:
Cell Phone Evidence                                                       Hardcopy Form

1. Emails and Texts                                               printed on paper
2. Social media messages                                  printed on paper
3. Photographs                                                      printed on paper
4. Audio Recording                                               duplicated on C.D. or cassette
5. Video Recording                                               duplicated on DVD

Legal proceedings  can be intimidating. Many litigants have not been involved in the legal system before their divorce. Understanding how the process works can help allieve some of the confusion and allow you to focus on the issues rather than the process. 

As a follow up to our prior posting about ADR, we thought it would be helpful to provide some basic information as to how divorce arbitration works. 
What is arbitration?

Arbitration is a form of alternative dispute resolution method that is growing in popularity as a way to resolve divorce cases. It is private and can be more expeditious than traditional litigation. While virtually any issue can be dealt with in arbitration there are special comsiderations that must be followed if custody and parenting time will be addressed
Custody & parentingtime arbitration 

Custody and parenting time issues are perhaps the most import at issues to be addressed in a divorce. The impact can be significant for both the parents and the children.  

In the case of Fawzy v. Fawzy which was decided in 2009, the New Jersey Supreme Court providedguidance on how custody and parenting time disputes need to be handled. 
What are the Fawzy factors?

First, all of the tetimony must be recorded verbatim. This can be anexpensive requirment and can be accommodated in several ways. A transcript can be made of the proceedings for example. 

Second, there must be a record of all documents used as evidence. The more detailed this record is, the better. It would be wise to retain copies of all documents used whether they be your own or those offered by the other side. 

Third, the arbitrator must make and provide to the parties written findings of fact and conclusionsof law that support their decision. 

Provided that these conditions are met, arbitration can be a helpful resource in dealing with custody and parenting time outside of the courtroom.