In America, the backbone of our adversarial system is a jury trial. But as family law practitioners, we are often heard by judges sitting without a jury. Some Judges presiding at nonjury trials often circumvent the rules of evidence. Judges often admit evidence indiscriminately, ruling on weight and relevance only after all the facts of been presented. Evidence law becomes, sort of, a hint or rule of thumb, and is incorrectly treated as if they are nothing more than additional court rules.
This informal practice of circumventing the evidence rules poses a problem when Judges overconfidence in ruling, exaggeration of their cognitive abilities, their command of professional skills generally compared to their competitors and their reliability in their own judgments interferes with standard ruling practices. This overestimation of abilities can feed into their belief that they do not need the evidence rules.
As advocates for the proper application of evidence laws, it is important to set limitations on what judges can and cant disregard. Emboldening advocacy by uncomplicating recurrent evidence problems in family law matters is a fundamental approach to properly employ the rules that motivate and guide decisions so that objections can be made or argued against intelligently and strategically.
