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Oakland lawyer Jon Eisenberg knew he had taken a major beating Thursday while defending a controversial local court rule during oral arguments in the California Supreme Court. All the appellate specialist could do afterward was grin and joke about it. “I’m going back to my office,” he said in a court hallway, “to wash off the blood.” The Eisenberg and Hancock partner seemed to go down in defeat while trying to save Contra Costa County Superior Court’s Local Rule 12.5(b)(3), which was designed to streamline family court proceedings by, among other things, limiting testimony to written declarations. Critics say the rule, which has a long list of requirements, is way too complicated for the pro per litigants it’s supposed to help and winds up denying them fair trials. The high court seemed to agree Thursday and will likely outlaw local rules like it that complicate matters or restrict testimony in family court. Eisenberg, who had watched his opponent cakewalk through his time at the lectern, was quickly overwhelmed by a battery of hostile questions from at least five of the court’s seven justices. Leading the pack was Chief Justice Ronald George, who seemed offended by Eisenberg’s insistence that Contra Costa’s rule helps litigants � especially those handling their own cases � better prepare for trial. “I think it’s more difficult to go through all these hoops for pro pers,” George said. “How are they going to go through all these detailed requirements? To me, it has an even worse impact on pro pers.” Local Rule 12.5(b)(3) was adopted by the Contra Costa courts to reduce delay and minimize conflict between parties in family law cases. It gives the judge authority to reject documents not made available five calendar days before a hearing, and requires all exhibits to be enclosed in binders with explanatory declarations attached.
When appellate specialist Jon Eisenberg argued that the amended rule would let pro per litigants ‘tell their story,’ Justice Carol Corrigan responded sarcastically, ‘What a concept!’

The rule’s most controversial requirement, however, limits testimony to written declarations, while giving the trial court judge discretion to take direct oral testimony in unusual cases. Litigants do have the right to cross-examine their opponents. Jeffrey Elkins � a pro per involved in divorce proceedings at the trial level with his longtime wife, Marilyn � challenged the rule after Contra Costa County Superior Court Judge Barry Baskin rejected all but two of the 36 exhibits he wanted to present at trial in 2005. He claimed he was victimized by the rule because it didn’t let him support his declarations with oral testimony. Elkins’ appellate lawyer, Oakland solo practitioner Garrett Dailey, told the Supreme Court Thursday his client was “stunned” to find out he “was not going to get to say one word in his trial � not one word.” He said the rule turns California law “upside down.” Dailey’s argument obviously won the day. Along with George, he also had Justices Carol Corrigan, Joyce Kennard, Ming Chin and Marvin Baxter on his side. Corrigan made the point that Contra Costa County had “created new foundational requirements that don’t appear in the [state] Evidence Code.” Kennard noted that family court deals with “highly contested cases” where litigants’ credibility is always at issue. Live testimony, she indicated, is crucial for a judge’s ultimate finding. Chin questioned whether the court wouldn’t be authorizing trial courts to adopt a “system of trial by declarations” if it agreed with Eisenberg’s position. Eisenberg tried to regain his footing by arguing that Contra Costa County Superior Court had amended its rule earlier this year to allow direct testimony in addition to, but not in lieu of, declarations. He said it was a good change that OKs some testimony in a court that’s dealing with “a mass of pro pers who are way in over their heads and don’t know what to do.” While that amendment isn’t directly before the court, it was part of Thursday’s discussion. Chin wanted to know how “creating more rules” would help nonlawyers who already have to wade through a list of requirements that could confuse seasoned lawyers. When Eisenberg argued that the amended rule would let pro per litigants “tell their story,” Justice Corrigan responded sarcastically, “What a concept!” George indicated he had as little love for the new rule as the original. “Shouldn’t there be the opportunity,” he asked Eisenberg, “to tell one’s story � unvarnished and unrestrained without hoops and hurdles?” Eisenberg’s co-counsel, Paige Wickland, a partner in San Francisco’s Fancher & Wickland who represented the interests of Marilyn Elkins, didn’t fare well either. George told her it was obvious Jeffrey Elkins couldn’t lay the foundation for his dismissed exhibits because he wasn’t allowed to testify. And when Wickland commented that requiring oral testimony in family court cases could cause a “calendar jam,” George told her the solution was for the trial court to seek more judicial resources � such as additional judges � rather than make individuals such as Elkins suffer. George and the other justices seem intent on giving Elkins his day in court, but whether they will find Contra Costa’s amended rule as much a problem as the original one wasn’t clear Thursday. A ruling in Elkins v. Superior Court ( Elkins), S139073, is expected within 90 days.

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