Proffer Testimony Hearings:  a battle of Fact vs. Fiction, or a just a question of who can spin the better yarn?

As a general rule in divorce actions, one or both parties will often ask the court for “temporary orders” to govern things like child custody and support, debt payment, who gets to live in the house (and who has to go looking for an apartment or sleep on his brother’s sofa), and other matters that need attention until the divorce is completed and final orders issued.

Almost every major aspect of a divorce can be the subject of a temporary order, and that order will be the order of the court until it is modified by the court, or until a final decree is in place. This means a temporary order could be in place for months, or even (unfortunately) years, and more often than not these temporary orders calcify, either in whole or in part, into the permanent orders of the court (which makes some sense; if the temporary order has worked for months, why not continue it)?  That may sound good in theory, as single parents often need assistance from the other parent immediately and cannot wait months for a final order of the court, but there is a big problem with the way temporary orders come into being. The problem is in the procedure of obtaining temporary orders.

Temporary Orders hearings are historically done through “proffer of testimony.”  Proffer of testimony occurs when an attorney simply states what a client or other witness would say if the witness were called to testify orally. Otherwise stated, hearings by proffer consist of pure hearsay.¹   The attorney gets to stand at the rostrum and can say almost anything he wants.  The opposing attorney doesn’t have the chance to cross examine, or to ask follow up questions (and how could she?; there is no witness to examine in the first place). Instead, the opposing attorney stands up and tries to tell another story that seems more impressive, spinning the truth in a more favorable light. As you can imagine, this can quickly turn into a vicious circle of tall tale-telling oneupsmanship. As there is no cross-examination, less honorable attorneys will outright lie and make things up on the spot. These stories are deciding the temporary and possibly permanent physical custody of your children, alimony, responsibility for debt, etc.  See the problem?

The Utah Court of Appeals (and the system it oversees) ostensibly doesn’t even like proffer hearings in divorce and other domestic relations cases, viewing proffer as unreliable and tenuous at best. In , the Utah Court of appeals has stated:

Any award of physical custody based solely upon what an attorney states a witness would have said and documentary evidence not subject to cross-examination is tenuous at best and subject to close scrutiny on appeal. Such deficiencies undermine the vitality of the trial court’s determinations. Fullmer v. Fullmer, 761 P.2d 942 at 945 n. 1 (Utah.Ct.App.1988),  see also Hamby v. Jacobson, 769 P.2d 273, 278 (Utah.Ct.App.1989) (“[I]n cases involving the best interests of a child and competing claims by parents of the child, demeanor and credibility of witnesses is particularly critical, and use of proffers should be discouraged.”).

Montano v. Third Dist. Court for County of Salt Lake, 934 P.2d 1156, 1157-58 (Ut. Ct. App. 1997)

So what do you do? Find an attorney that who will lie? Find an attorney that who is a better liar than the opposing attorney?

The only honest and viable option at this point is to request an evidentiary hearing.²  When asking the court for temporary orders, you can make a request for an evidentiary hearing (that doesn’t mean you’ll get one, but you can and should ask). This will require some more preparation by your attorney and the hearing will likely take more time as witnesses may be called and cross-examined (which means it will cost you more money, but it’s money well invested).  The extra expense in attorney’s fees to prepare for and attend an evidentiary hearing should insure the fairest result, save you money, and preserve rights far more precious (i.e., your relationship with your children) in the long run by preventing proffered lies from reaching the court’s ears and eyes.

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¹  What’s wrong with hearsay? See Sherry F. Colb’s article at: http://www.dorfonlaw.org/2011/07/out-of-court-brain.html.  Excerpts from her article follow:

In everyday life, we frequently rely on hearsay to make decisions.  When deciding whether to buy a Brand X lawn-mower, for example, I might receive the advice of a passerby (Daniel) who says to “avoid the Brand X mowers.  My sister-in-law told me that they break down all of the time.”  Hearing this, I might well decide to follow the advice and avoid making the purchase. This is true in spite of the fact that Daniel’s sister-in-law could have made a perceptual error (perhaps the bad lawn mower was actually Brand Y, but she read the label incorrectly), could have remembered the brand incorrectly (perhaps she knew originally that she had purchased Brand Y but then forgot and thought it had been Brand X), could have meant to say “Brand Y” but misspoke and said “Brand X,” or could have lied to her brother-in-law about the lawn mower.

Anyone who makes a factual statement, in or out of court, of course, could be conveying flawed information in all of these ways.  In the case of hearsay, however, the listener cannot observe the speaker as he speaks and accordingly cannot make direct judgments about how much credence to give the speaker’s statements.  The listener also cannot ask follow-up questions of the speaker (such as “Did you use the lawn mower correctly?,” “How many times did it actually break down?,” or “Have you had better luck with other lawn mowers?”).  The listener could ask these questions of the witness (here, Daniel), but Daniel might not be able to answer them, and — perhaps more importantly — Daniel’s statements will not enable the listener to observe Daniel’s sister-in-law directly while she makes the statement and answers the questions to thereby assess whether she appears to be confused, dishonest, or otherwise worthy of skepticism.

As a rule, then, we exclude hearsay from evidence (whether in a civil or a criminal trial), not so much because out-of-court speakers — like in-court witnesses — may be saying something false, but because a jury is not in as good a position to assess the truth or falsity of the out-of-court speaker as it would be in the case of a live witness:  by observing the speaker as he speaks and by observing him respond to questions posed to him in front of the jury.  Notwithstanding the lack of these tools, however, some hearsay is admissible in evidence, even at criminal trials against the accused.  Our courts have never been willing to keep all hearsay out of evidence.  Though difficult to evaluate compared to live witness testimony, we have always considered some hearsay worth the cost, just as we regularly consider hearsay in making important decisions in our daily lives.

²  An “evidentiary hearing” in a Utah divorce case is a proceeding before (usually, but not necessarily before the judge in your case) where parties are permitted to offer into evidence documents and live witness testimony, as in a trial. Generally, in an evidentiary hearing parties are permitted to make opening and closing statements, examine and cross-examine witnesses and raise objections and obtain rulings on objections from the judge.  A proceeding is an “evidentiary hearing” if witnesses testify under oath or affirmation and a verbatim record of the proceeding is made.