Evidence attached to Motion

[wendy11068]

All parties in MI, case in MI.

I am preparing to file a Motion to Modify Primary Residence.  It was suggested to me that I must attach all evidence supporting the claims in the Motion before I can file it, otherwise it won't be heard.

I checked the State Court Rules and it does state that all post-judgment motions must have the evidence attached but this was part of the Civil section and no other reference was made for Family Law.

Being pro se, I want to make absolutely certain that I do everything as correctly as I possibly can.  When I was filing Motions during our CS determination hearings, I did not attach evidence even though these would have been considered post-judgment.

1.  It is absolutely necessary to attach supporting evidence to a post-judgment Motion?
2.  Doesn't attaching evidence tip your hand early?
3.  What options do I have for evidence that I will have in a couple of weeks but do not have now (medical records, school records where I already know what is contained in the record but need copies) if I need to file evidence with the Motion?

[socrateaser]

>1.  It is absolutely necessary to attach supporting evidence
>to a post-judgment Motion?

Unless the evidence is intended for impeachment purposes, then yes, because the other party is entitled to see the evidence in support of your case-in-chief (affirmative case) prior to trial, so as to have a reasonable opportunity to prepare to meet the evidence.

>2.  Doesn't attaching evidence tip your hand early?

Perry Mason is dead. Modern courts expect all relevant substantive evidence to be discovered prior to trial/hearing. The only exception is evidence held for impeachment purposes.

Impeachment evidence is that which is not offerred to meet a party's burden of production or persuasion, but is rather offerred only to discredit the other party's evidence.

So, for example if your opponent offers evidence that you earn $10 per hour more than you have claimed, you can produce impeachment evidence showing that you only earn $8. This does not actually prove that you only earn $8 -- it rebuts the allegation that you earn $10. You must still produce substantive evidence as part of your case to show that you actual earn $8, unless the impeachment evidence is such that it may also be admitted as substantive evidence in support of your case.

A pay stub would be relevant for both impeachment as well as substantive evidence, because it would show directly what your earnings are. Whereas a witness' testimony that he saw the other party doctoring their substantive evidence by writing "$10" on the pay stub would not, because the testimony doesn't actually prove that you earn $8.

If you're confused, don't worry, so are most lawyers and judges. Generally you only want to hold back something that you know will prove the other party is lying, and you want to make an "impression" in the courtroom about the other party's tendency to fabricate.

In a motion hearing, it's rare that the court will allow any testimony, so you may as well get your evidence in writing, because otherwise you won't get it in at all.

>3.  What options do I have for evidence that I will have in a
>couple of weeks but do not have now (medical records, school
>records where I already know what is contained in the record
>but need copies) if I need to file evidence with the Motion?

You can file a supplemental declaration, consistent with the latest date for evidence to be admitted provided for in the local rules of civil procedure.

And, even after that you can still file a supplemental declaration, right up until the moment that the hearing begins. But, the risk is that the evidence won't get from the file clerk to the judge's assistant unless you file it right their in the courtroom, and the further risk that the other party will object to the unfair surprise of the late evidence, and that will force the court to continue the matter to a subsequent hearing (or perhaps to refuse to admit the evidence, unless you show good cause for why your filing was late -- being unable to obtain the evidence earlier would be good cause, but you still might get stuck with a postponement).