A few lessons from a family law appellate case

May 17th, 2011 , 10:49 am

Family law is truly a battleground.  The emotions are running high and all of the problems in a relationship are often played out in the legal arena.  And if kids are involved, it can be a very sad situation, and sometimes, a real tragedy.  In a recent case, In re Marriage of Davenport, 2011 Cal.App. LEXIS 534,  Jill was represented by an experienced attorney and then her case was given to a “young and experienced” attorney for handling.  The case eventually produced a 35-page register of actions and 19 volumes of court files.  Jill filed a motion under Family Code section 271, seeking $600,861 in attorney fees and $332,933 in costs from Ken, which was followed by his motion for fees and costs.

In support of her motion for fees, Jill included a 52-page declaration from her young attorney, who stated he met with his client over 100 times while handling the case.  The declaration included 1,250 pages of exhibits.  The hearing on these motions occurred over a five-day period and the trial judge issued a 31-page decision, denying Jill’s motion and awarding Ken $100,000 in sanctions and $304,387 in attorney’s fees.  Jill appealed.

As one of her challenges on appeal, Jill argued there was no substantial evidence to show any sanctionable conduct by her attorney.  However, Jill’s factual argument set forth the evidence favorable to her and ignored the lower court’s lengthy statement of decision.  The appellate court refused to condone Jill’s conduct, finding she had violated California Rules of Court, rule 8.204(a)(2)(C), which requires “a summary of the significant facts . . .”   The court also indicated Jill’s brief ignored the principle that all evidence would be viewed most favorably to Ken, both because he was the prevailing party and the trial judge also issued a statement of decision, wherein conflicts in the evidence or reasonable inferences are drawn in favor of the trial court’s decision.

In her briefs, Jill tried to reargue her position below, based on the facts she liked.  The court concluded, “In sum, Jill’s brief manifests a treatment of the record that disregards the most fundamental rules of appellate review . . . As Justice Mosk well put it, such ‘factual presentation is but an attempt to argue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review.  As such, it is doomed to fail.’” (Citing from Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) (Citations omitted.)

The court found abundant evidence of the “mistreatment” of opposing counsel by Jill’s attorney.  Some of it was in correspondence between the attorneys and was viewed as contrary to the goal in family law to reduce acrimony and adversarial approaches.  Perhaps the attorney was not thinking that his correspondence would now be preserved in the law books forever.  Very short-signed and embarrassing.  Jill explained that the tone of her young attorney was “the expressions (sometimes intemperate) of a young lawyer frustrated that Ken was systematically obstructing the search for the truth   . . .”   The court in Davenport reminded counsel and us of the California Attorney Guidelines of Civility and Professionalism, and concluded:

“We close this discussion with a reminder to counsel — all counsel, regardless of practice, regardless of age — that zealous advocacy does not equate with ‘attack dog’ or ’scorched earth’; nor does it mean lack of civility . . . Zeal and vigor  in the representation of clients are commendable.  So are civility, courtesy, and cooperation.  They are not mutually exclusive.”

(Citations omitted.)