Contra Costa County Superior Court violated state law with a rule that prohibited people in divorce trials from presenting oral testimony, the state Supreme Court has ruled.

The ruling means a new divorce trial for Jeffrey Elkins, a Danville business consultant who challenged the county court's rule that required evidence to be submitted exclusively by written declaration, except in unusual circumstances.

It also means trial courts in California counties with local rules similar to Contra Costa's will have to change the way they do business. In January, as the Elkins case was pending, Contra Costa County Superior Court changed its local procedure to allow oral testimony, in addition to written declarations, for requesting parties.

In an opinion issued last week, the state Supreme Court called for the Judicial Council to create a task force to help trial courts achieve efficiency and fairness in divorce proceedings, and to possibly establish statewide rules and procedures.

The Contra Costa court had established its rule prohibiting oral testimony to speed along cases in its family law division. Attorney Jon Eisenberg, who represented Contra Costa courts, said Contra Costa's position was that trying every single case by oral testimony would be burdensome.

Since the court started allowing oral testimony in divorce hearings, few people have requested it, Eisenberg said.


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Elkins, who represented himself in his divorce, said the rule resulted in the court awarding all assets to his ex-wife because all but two pieces of evidence he wanted to present at his 2005 hearing were discounted by the court.

"The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence," the opinion reads. "The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

The Supreme Court said the Elkins case "highlights the unusual burdens and restrictions that have been imposed on family law litigants at the local level in response to increasing case loads and limited judicial resources."

A 2004 survey by the California Judicial Council estimates such cases represent 7.5 percent of total filings in the trial courts, but account for nearly one-third of the workload.

"In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures," the opinion reads. "But family law litigants should not be subjected to second-class status or deprived (of) access to justice."

The case now goes to the state Court of Appeal, which will issue an order based on the high court's opinion in 60 to 90 days. Eisenberg said the Contra Costa court will continue to review its local procedures, in addition to its scheduled annual reviews, as it awaits the order.

Attorney Garrett Dailey, who argued on Elkins' behalf, said the impact of the Elkins opinion will go beyond Contra Costa.

"It's going to affect a lot of counties trying to implement these types of rules -- they're not allowed to enforce rules that limit people's rights except when authorized by state law," Dailey said. "There are 58 counties, 58 sets of rules and penalties for violating rules can be severe.

"I've been getting e-mails from attorneys and judges from all over the state basically saying how grateful (they are that this) opinion is going to permit judges to hear these cases and give them the attention they're due rather than relying on declarations written by attorneys," Dailey said.

On a personal level, Elkins said he feels vindicated by the Supreme Court's decision.

"Divorce is a tough thing to go through," said Elkins, a business consultant, whose divorce proceedings started in 2001. "I'm just hoping I can now go back to court to ... come up with a solution and finally get this thing behind us."

Reach Malaika Fraley at 925-945-4782 or at mfraley@cctimes.com.