LIMITS ON CROSS-EXAMINATION YIELD REVERSAL

[Posted April 10, 2007]  For most lawyers who don’t practice in the field of domestic relations, judicial opinions in that field rarely get read.  But every so often, a domestic case comes down that contains one or more essential lessons for practitioners in other fields.  Last year’s panoramic Court of Appeals opinion in Rahnema v. Rahnema is one; the Supreme Court’s recent decision in Harrell v. Harrell, with its long series of procedural missteps by one litigant, is another.  These rulings are required reading, even if you’re highly allergic to D-I-V-O-R-C-E.

Today, the Court of Appeals hands down another one, in Campbell v. Campbell .  The context is an equitable distribution case from Albemarle County that arose in what might charitably be called a rocky marriage.  The opinion is written by Judge Humphreys, who in his often understated style, describes the happy couple’s interaction this way:

“The marriage between the parties proved to be somewhat turbulent from the very beginning, with husband frequently accusing wife of adultery.  . . . In 1996, after a fierce argument in the marital home in which husband accused wife of adultery, wife pulled out a gun and shot husband three times.”  (Note #1: He lived, or this would be a “Smith & Wesson divorce” case on the criminal docket.  Note #2: In case you’re reading this, my dear, I love you very much, and have always been perfectly satisfied of your fidelity.)

That, you will readily understand, was the end of the marriage, or at least of the parties’ cohabitation.  But six years later, husband for some reason called wife into his company’s office and dictated a statement to her (she had served as his secretary during the course of the marriage) in which he promised that if he followed through with divorce proceedings, he would give her the company.  This was no small potatoes; at the date of separation, it was worth $2.5 million, and by the time of trial, more than double that sum.  He signed it, and they each got a copy.

You, my astute readers, will have discerned by now that he DID go through with the divorce.  Wife, having hung onto her copy of the agreement, gave it to her lawyer, who assuredly started salivating at the prospect of annihilating his opponent with it at trial.

But husband denied having signed it; he asserted that wife had simply written it up and forged his signature.  The biggest issue of the case thus became whether the husband’s signature was genuine.  If it was, then wife is a multimillionaire who might find a more placid spouse the next time around.  If it was a forgery, then it’s a far different matter.

The trial court allocated five days for the trial, and decreed that the first day – and the first day only – would be devoted to a preliminary hearing on the genuineness of the document.  There were loads of witnesses, including handwriting experts on both sides.  In order to meet the time limitation, the trial judge apparently put each side on the clock for a specific amount of time; once that time expired, the party could not call or cross-examine witnesses.  Husband evidently squandered some of his time, and by the time wife’s expert testified, his bell had already gone off.  The trial court did not permit husband to cross-examine the expert or one fact witness at all, solely because of the time limitation.

This scenario may be familiar to many trial lawyers who have found themselves in a time constraint imposed by a judge who decides in advance how long the trial is going to take.  In most instances, the lawyers grin and bear it, rather than fight the judge on a matter that the jurist likely believes is his prerogative anyway.  After all, one can easily imagine how the factfinder will react when you tell him he’s setting his ground rules all wrong.

So while wife’s expert and fact witnesses lovingly wrought their stories, husband’s lawyer sat and fumed, unable to lift a finger to counteract the testimony because he had used his allotted time on other witnesses.  At the conclusion of the proceeding, the trial court decided that husband’s signature was genuine; he accordingly awarded the corporation to wife, as her separate property, consistent with the promise in the document.

Husband appealed, and today, in a strongly worded opinion, a panel of the Court of Appeals unanimously reverses.  Husband had raised eight issues, and wife threw in three of her own, but in the end, only the cross-examination issue mattered.  The appellate court finds that the trial court’s refusal to permit any cross-examination at all denied husband a fundamental right that implicates the structure of the proceeding.  Note that it is not a constitutional right.  The state and federal constitutions guarantee cross-examination – actually, it’s “confrontation,” but that means the same thing in this context – in criminal cases, and do not speak to civil proceedings.  But that doesn’t dissuade the court from forcefully reversing, with what I see as a stern lecture on jurisprudential shortcuts.  The matter is now remanded for a new trial, in which husband gets to grill wife’s witnesses at a bit more leisure.

Judges often impose time limits in many sorts of cases (though it’s very rare indeed in felony trials, for obvious reasons), not just divorce and ED proceedings.  Whether you handle personal injury, construction litigation, or any other type of case that can produce long trials, if you practice before a judge who likes to cut matters short, you should have a copy of this opinion in your trial notebook, so you can take it out and show him if you need to.  Don’t expect the judge to suddenly love you like a brother after you do that, of course, but keep it available, just in case.