Parties to Family Law and Divorce Litigation Are Now
Required to "Meet and Confer" Before Hearings
In the never ending struggle to force family law litigants to stop the
bickering and attempt to settle their disputes without the necessity of
a family court hearing, the California Judicial Council issued new
CRC Rule 5.98 effective January 1, 2013. Rule 5.98 obligates attorneys or self-represented
parties to get on the phone or meet in person at some point in time prior
to a hearing, in a "good faith attempt" to settle "all
issues" - "even if a complete settlement is not possible"
- i.e., even if it is a complete waste of time. Letters or emails won't
suffice. At the same time or before, they must exchange any documents
they intend to show the court that have not already been filed or provided
the other party, except such documents that will be submitted for "rebuttal
or impeachment purposes."
Expect to see this section revised in coming years to add the teeth it
presently lacks, since the governmental trend is strongly in favor imposing
the burdens (and expense) of resolving cases upon the litigants and their
attorneys themselves, and relieving the work load of family court bench
officers. In its present form, Rule 5.98 only empowers judges to refuse
to consider documents that were not exchanged prior to the hearing - assuming
that at least one of the two sides tried to comply with this Rule and
set such a meeting. If both ignore it, it is hard to imagine that either
will have a basis to gripe at the hearing if surprised or ambushed by
documents they've not seen before, although it is possible that some
outlying judges might refuse to consider such papers if both try to overwhelm
the court with new exhibits at the last moment and neither has attempted
this meet and confer.
Speaking of ambush, however, the big exception regarding document exchange
concerns documents submitted for "rebuttal" or "impreachment"
purposes. Much could arguably satisfy this definition, since family law
litigants tend to feel that every document or item they possess proves
the other is a liar. And "rebuttal" could simply include documents
that someone couldn't get filed in response to the other's pleadings
- as with a party responding to an RFO who is only entitled to a "responsive
declaration," and who must suffer the indignity of then receiving
a "reply declaration" without the ability to file a further
response to that pleading.
Meet and confer is always a good idea, and it is surprising what can sometimes
be accomplished with a simple phone call. If one side attempts to follow
the rule without success, because the other won't participate, a good
record of these attempts may later serve as a foundation for a request for
Family Code section 271 sanctions - i.e., for failure to cooperate and conduct that drives up
the costs of the case. There are so many parties, and even more attorneys
it seems (and not only the dreaded "Los Angeles" attorney),
who only pay lip service to good faith settlement efforts.
T.W. Arnold, III