No doubt we all recall the wondrous feats of courtroom maneuvering
displayed by the original legal eagle, Perry Mason. The witness visibly
squirmed as the unflappable Mason conducted a brilliant cross-examination. Then suddenly Mason asked the court for permission to
bring in a surprise witness—much to the dismay and chagrin of his old
adversary Hamilton Burger.
Mason’s surprise witness was never disclosed before trial, was always
permitted to testify, and, of course, Mason rarely if ever lost a case.
Today Arizona attorneys work under the rules of disclosure to prevent
such trial by ambush. Or do we? Following are two situations recently
encountered in the midst of hostile custody disputes, which reveal a
disturbing trend in disclosure in the family law arena.
During an opposing party’s deposition, I learned that she and her attorney had retained a
“consultant” months earlier. Three weeks before trial, wife disclosed the consultant as an
expert and her report as an exhibit. I filed a motion in limine to exclude the expert and
her report for failure to timely disclose under Rules 49 and 65 of the Arizona Rules of
Family Law Procedure1 (A.R.F.L.P.), and the pretrial order. Not only had opposing
counsel known about the expert for more than three months, the disclosure weeks before
trial made discovery difficult because the expert lived in Florida.
The trial court heard arguments on my motion and ruled (much to my dismay) that
based on Hays v. Gama2 the expert’s testimony and report were admissible because they
addressed child custody issues.
Didn’t that result completely undermine the purposes of disclosure? Wasn’t that a return
to trial by ambush and litigation trickery?
It certainly seemed so to my client.
Situation No. 1
Mother refused to participate in preparing a joint pretrial statement, despite the rules and
pretrial order. Shortly before trial mother retained counsel, who failed to file a separate
pretrial statement. The day before trial, I received a tape of phone calls made by my client
to mother. As trial began, I argued that both the tape and mother’s witnesses (who
showed up at trial) should be excluded based on the failure to disclose. Here, mother’s
disclosure was not just untimely—it was non-existent. Over my objection, the court
admitted the tape and witnesses on the basis that they were relevant to the best interests
of the child.
Situation No. 2