In a decision published May 4, 2011, Justice Richman of the First Appellate
District for Sonoma County, California, signaled that family law attorneys
who embark on rampaging attacks against the opposing party and/or their
attorneys risk meaningful reprisals in the form of significant monetary
sanction awards. Clients who encourage or permit their lawyers to manage
their cases in this style may find their purses and wallets pried wide open.
A Tale of Two Teams
Jill and Ken Davenport married in 1948 and separated in 1990, amassing
an estate worth near 57 million dollars. Ken was a talented car salesman
and real estate investor. It wasn't until March 1, 2006 that Jill
filed a petition for dissolution of marriage. During that 16 years "there
was agreement and cooperation, including their participation in joint
estate planning favorable to Jill, and agreement to sell off many of the
[community properties]." Jill was then 75 years of age, and Ken was 78.
This cooperation ended on February 3, 2006 when something set Jill onto
the road to calamity. She fired a salvo in the form of a letter to Ken
which accused him of having "stepped over the line," having
"lied to me," warning that he was being taken advantage of by
others, and demanding he turn over money and certain property. Although
the parties had co-existed peaceably for almost 16 years, the status quo
exploded with this letter.
What had changed for Jill? She'd recently retained the law firm of
O'Brien Watters and Davis to protect her interests. When her Petition
was filed, senior attorney Michael Watters was named as her attorney of
record. In November 2005 Andrew Watters (Michael's nephew), passed
the California Bar and joined the law firm effective February, 2006. He
was introduced to Jill three days later and became her gladiator, so beginning
an odyssey that would continue unabated for more than five years. According
to Andrew, thereafter he "personally handled or [was] personally
involved in each and every transaction between the parties ..., as well
as each and every discovery request, discovery event, court proceeding,
and other substantive matter." As the First Appellate District court
dryly notes, "[i]n short, Andrew Watters became the lead lawyer for
Jill in what would necessarily be a complex family law litigation."
"Early on, a young and inexperienced attorney at that firm [Andrew]
became Jill's primary attorney, and interacted with Ken's attorneys
for the next two years, interactions that would generate a 35-page register
of actions and 19 volumes of court files."
Out of the gate Andrew Watters pursued a campaign of attack against Ken
and his attorneys that seemed all too personal. Five months into the proceedings,
he filed a motion to compel further answers to Form Interrogatories after
making negligible efforts to resolve the discovery dispute informally.
California has long required that before litigants file motions to compel
discovery, the record must show that they made reasonable and sincere
efforts to resolve the argument informally. Proof of this is contained
in what are called "meet and confer" letters. Unfortunately,
these letters are often authored with a threatening tone, reflect posturing
and grandstanding, and sometimes hope to set up the other side for sanctions
when a motion to compel is heard. In this case, Andrew wrote a single
letter, failed to respond to Ken's attorney's reply, and he didn't
attempt to discuss the issues with Ken's attorneys before filing his
motion. The trial court declared these efforts to be "unreasonable"
and "admonished [counsel for both parties] to change their meet and
confer practices so that meeting and conferring is meaningful and not
just a token gesture."
Over the next two years Wife's side would file eight discovery motions
(where there is smoke, there is fire?). The court file came to consist
of 19 volumes, something that the experienced trial judge, Judge Cerena
Wong, would later describe as "outrageous" for a family law
case. Wife filed three OSC re Contempts against the Husband, including
one in which the Court in August, 2006, ordered the parties to meet and
confer in a 4-way, as to which Ken "refused to meet and confer if
attorney Andrew G. Watters was present in the room." Oh boy. Unfortunately,
this reaction is not uncommon but risks forming a vacuum where the business
of cooperation stalls.
The FC §271 Sanctions' Requests
On May 23, 2008, attorney Watters filed two motions that ultimately blew
up in Jill's face, leading to this appeal. One motion requested Family
Code section 271 sanctions and attorney fees.
Wife's initial motion paperwork was "blank", evidently designed
to reserve hearing dates on the court's calendar. The appellate court
notes that "Andrew Waters did not consult with [Ken's attorney]
on the date, nor even advise him of the filings, causing him to complain
about the timing of the motions, including that they were filed late in
the afternoon of May 23, 2008, the Friday before the Memorial Day weekend,
and at the last possible moment."
Family Code section 271(a) reads in pertinent part:
"the court may base an award of attorney's fees and costs on the
extent to which the conduct of each party or attorney furthers or frustrates
the policy of the law to promote settlement of litigation and, where possible,
to reduce the cost of litigation by encouraging cooperation between the
parties and attorneys. An award of attorney's fees and costs pursuant
to this section is in the nature of a sanction.... In order to obtain
an award under this section, the party requesting an award of attorney's
fees and costs is not required to demonstrate any financial need for the
Jill sought legal fees of $600,861 and costs of $332,933. Her attorney
filed a 52-page declaration which attached 1,250 pages of exhibits. Much
of Watters' declaration was "inappropriate, asserting hearsay,
argument, opinion, and conclusion, and was improper on several bases.
An early passage ... illustrates some of this, where Andrew Watters purports
to describe Jill's description of Ken's 'negotiating tactics,
habits, and personality traits,' which he labeled 'Deal in the
pocket,' 'Poor mouth,' and 'Artificial crisis,'...."
This sort of sarcasm doesn't warm the hearts of judges.
Although the record is not clear, it appears that Watters requested that
Ken's attorneys also be sanctioned. Personalizing sanctions in a war
of words between attorneys can be a dangerous misstep (and is a good argument
against expanding section 271 to invite sanction motions against lawyers
Watters' tone was reportedly sarcastic, deprecatory, improperly personal,
and lacked objectivity (see several paragraphs below for the juicier stuff).
Effectively he was "testifying" on behalf of his client. His
declaration included assertions that:
- "I've seen first hand that Ken can be a very persuasive person,
and that Ken seems to use all of his abilities and skill to get the best
deals for himself."
- "I was skeptical ... that someone could really use these tactics effectively
outside of a car dealership.... However, throughout our dealings with
Ken in this matter, I have personally observed Ken use each of the aforementioned
- "During the pendency of this proceedings,...., the 'inconvenient
truth' here is that Ken has used his unusually strong business skill
and acumen against his spouse despite his fiduciary duties..."
Again, it is possible that Watters' observation were basically correct.
The motions alleged several breaches of fiduciary duty including that
Ken (1) omitted two assets worth $3.1 million on his schedule of assets
and debts; (2) produced a written statement of the parties' net worth
to be $30.5 million, when several months earlier he gave a financial statement
to a loan officer showing the net worth to be twice that; (3) that his
schedule of assets and debts failed to state values for many of the listed
items; and (4) engaged in various discovery abuses, including stalling
the taking of his deposition for ten months.
Watters' motion included Points and Authorities citing but one case:
In re Marriage of Feldman (2007) 153 Cal.App.4th 1470.
Feldman is the most important fiduciary duty case of the last decade. It upheld
$250,000 in sanctions against a Husband who clearly was frustrating the
resolution of that case, and who was secreting assets from the Wife. "Feldman"
has become the rallying cry behind many well-intentioned efforts by California
Family Law attorneys to force the other side to comply with their fiduciary duties.
Many divorce attorneys have
"Feldman letters" loaded on their word processors, ready to fire. Several years ago these
were widely circulated within the family law community with a certain
amount of glee. Some attorneys use these letters as an intimidation tactic;
the exemplar I provide does have a harassing tone to it if only because
of its length, and I will only send it out if I feel there is serious
Feldman sanctions' threats are indeed sometimes required to remind the other
side they are straying from their obligations to be transparent - but
misconduct must be egregious in order to succeed on a
Feldman is important authority for curbing and remedying dishonest conduct in
divorce proceedings, but like all things it can be over-used, blunting
its utility. For those who have been on the receiving end of nasty Feldman
letters, this is the first reported decision that provides an antidote.
Watters urged: "'Here, the
Davenport matter might as well be called
In re Marriage of Feldman - The Sequel. If ever a dissolution of marriage action in Sonoma County warranted the
imposition of sanctions on a party, this is the case.... indeed, 'this case is
worse than what happened in
Feldman.'" The decision asserts
"Feldman would become Jill's short-hand description of all that was claimed
to be wrong with Ken's conduct,..."
"Feldman, Feldman, Feldman, Jill repeated below,..." The appellate justices noted that "Jill
remains relentless ...."
Ken opposed Jill's
Feldman motion, giving notice that he too would seek Section 271 sanctions. Jill's
Reply argued that Ken's motion was filed using the wrong forms, and
that Ken's requested fees "have little or no connection with
the alleged 'sanctionable' conduct of Jill"
as opposed to that of Jill's attorney.
Wife's attorney filed detailed objections to the declarations and
exhibits that Ken submitted, including motions to strike portions of his
pleadings, but Judge Wong essentially ignored these objections making
"it abundantly clear that she could separate the wheat from the chaff."
Davenport deals a blow to the common practice of filing evidentiary objections to
attack declarations that contain improper matter (these emphasize to the
Court the lack of
admissible evidentiary support for statements, and seek to strike the contents of
these pleadings from the record). Judge Wong stated
"as far as I'm concerned, fighting over comments or statements
made as to whether or not they're relevant or whether or not they're
objectionable, you know, this is not a jury trial for heaven's sake.
I'm a judge. You know, I can sift through this stuff. I might have
some comment about what I think to be more lawyerly conduct and lawyerly
language . . . . You should be able to rely on the court being able to
read what it reads and eliminate what's not relevant."
Well, maybe ... Judges are as human as the rest of us. Exactly what argument
or "evidence" a court is relying upon in reaching its conclusions
is of rightful concern to litigants and their attorneys. Short-circuiting
a proper record that makes effective appellate review possible carries
a danger of giving trial courts too much power and discretion. Certainly
if a court won't strike objectionable pleadings, it is hard not to
respond in kind. Nonetheless, Justice Richman approved Judge Wong's
refusal to specifically rule on Jill's objections.
The trial of these dueling
Feldman claims took place over five days in October and November, 2008. Judge
Wong issued a statement of decision that found that:
- Jill's counsel's failure to meet and confer before filing her motion,
and during the proceedings, was sanctionable conduct.
The facts that Jill alleged "do not rise to the level [of
- Jill's counsel's hostile and disrespectful correspondence was sanctionable.
Jill's attorney repeatedly made references to what was said and presented
in a mediation that the parties had undertaken, in violation of
Evidence Code section 1119.
- Watters' surreptitious conduct with computer consultants in relation
to extracting computer data on a computer in his possession that was believed
to include privileged material was sanctionable. In connection with retrieving
data stored on a computer that Wife controlled, Watters switched the computer
experts, replacing an agreed-upon forensic with an IT person whom he'd
met at a karaoke Bar where he claimed such "nerds" are known
to hang out.
All fees relating to Wife's motions could have been avoided by Wife's
counsel, had he:
(1) Met and conferred with counsel; (2) been more respectful and cooperative;
(3) used the case manager who'd been assigned to the case; and (4)
accepted Husband's counsel's offers to agree to a neutral forensic
Watters' insistence on a expedited
Feldman trial in the middle of the case rather than at its conclusion was unnecessary
and unreasonably expensive to the parties, and wasted the Court's
limited resources. Normally Feldman motions are heard at the conclusion
of a dissolution action, when the Court has the larger picture before
it, but Attorney Watters had urged that an immediate hearing was required
here to deter continuing sanctionable conduct by Ken and his attorneys.
Judge Wong denied Jill's motions. "There has been a failure of
proof sufficient to penalize husband and his attorneys Merrill, Arnone,
Benoit or Johnson." She granted Ken's request that instead the
Court find that the Petitioner, through her attorneys, engaged in a course
of conduct that was sanctionable. Judge Wong observed:
"'The Court questions the wisdom of such a large firm as O'Brien,
Watters to choose to 'educate' a newly admitted lawyer with a
case that involved millions of dollars of varied assets in California
and other states, with a long term marriage and complicated trust holdings.
With no background in either civil or family law litigation, Mr. Andrew
Watters admitted to the Court that he was taught to litigate this case
with unbridled aggression. These uncooperative and uncivil courses of
action have caused Mrs. Davenport unnecessary delays and unnecessary attorney
fees and costs.'" [Italics and emphasis added].
Judge Wong was messaging Jill directly, which ought to have been severely
embarrassing for her counsel.
The court also criticized Ken, who had early on stated he would not engage
in a court-ordered 4-way if Attorney Watters "was in the room."
Judge Wong saw that as "inexcusably rude and uncalled for. Respondent's
arrogance must have hit a sensitive nerve in counsel because Petitioner's
case became a case that rapidly deteriorated into unprofessionally rude
conduct and speech after that." Possibly had Mr. Watters not caused
the spotlight to shine so brightly upon himself, there was more on this
point that could have been developed.
What Divorce Lawyers Might Avoid
The appellate court found that
"Andrew Watters' demeaning comments to opposing counsel were contrary
to the California Attorney Guidelines of Civility and Professionalism
promulgated by the State Bar in 2007 (Guidelines). These guidelines state
that "attorneys have an obligation to be professional with . . .
other parties and counsel, [and] the courts," which obligation "includes
civility, professional integrity, . . . candor . . . and cooperation,
all of which are essential to the fair administration of justice and conflict
resolution." (Guidelines, supra, Introduction, p. 3.) Section 4 of
the Guidelines further counsels that "An attorney should avoid, hostile,
demeaning or humiliating words," further providing in relevant part
that: "An attorneys communications about the legal system should
at all times reflect civility, professional integrity, personal dignity,
and respect for the legal system. An attorney should not engage in conduct
that is unbecoming a member of the Bar and an officer of the court. For
example, in communications . . . with adversaries: [¶] . . . [¶]
c. An attorney should not disparage the intelligence, integrity, ethics,
morals or behavior of the court or other counsel, parties or participants
when those characteristics are not at issue. [¶] . . . [¶] f.
An attorney should avoid hostile, demeaning or humiliating words."
(Guidelines, supra, § 4, pp. 4-5.)"
Justice Richman continued
"there is abundant evidence of Andrew Watters treatment - more accurately,
mistreatment - of his opposing counsel in his correspondence with them.
Bad enough that such correspondence occurs in any litigation. It is utterly
inconsistent with a fundamental aspect of proper family law practice.
"Family law cases are not supposed to be conducted as adversarial
proceedings. Quite the contrary, the goal is to reduce acrimony and adversarial
approaches common to general civil litigation and, instead, to foster
cooperation between the parties and their counsel with a view toward settlement
short of full-blown litigation. [See Fam. C. §§ 2100 (b), §
271(a) (sanctions for uncooperative conduct in family law cases); see
also Cal. Atty. Guidelines of Civility & Professionalism § 19-in
family law proceedings an attorney should seek to reduce emotional tension
and trauma and encourage the parties and attorneys to interact in a cooperative
atmosphere, and keep the best interest of the children in mind'].
"The record is replete with correspondence from Andrew Watters to
Ken's attorneys that contained abusive, rude, hostile, and/or disrespectful
language, correspondence that Andrew Watters himself acknowledged was
substantial evidence, when in the course of his closing argument he stated
that '[p]erhaps some unpleasant letters that could offend someone
did substantially increase the cost of litigation.' Perhaps it did
indeed. A few illustrations should suffice:
- A November 22, 2006 letter to Mr. Merrill referred to Ken's nonappearance
for deposition: 'Regarding your client's failure to appear once
again for his continued deposition, we too regret that your client chose
not to appear. As you know, we duly noticed his continued deposition for
11/20/06-11/22/06. Once again, you offer the same tired, old, and shopworn
excuse. Your continued blustering about mutually agreeable dates, efficiency
and promptness, and convenience is pathetic when your client's actions
negate any semblance of cooperation. Talk is cheap. Actions speak louder
than words. Your credibility is at stake here.'
- his March 13, 2007 letter to Mr. Benoit included remarks that were rude,
including 'Enough already with the delays.' Worse, his letter
indicated that he did not believe Mr. Benoit-the person he described as
"the dean of the Family Law Bar"-telling him: 'We don't
accept your implication that you didn't already have [the Request
to Inspect] . . . . Perhaps you didn't look hard enough, because we
filed a Motion to Compel . . . in which I attached RTI Set one to my Declaration.
Or you weren't counting that copy.' And the letter ends with utter
disrespect, with observations such as: 'this seems like a case of
the pot calling the kettle black'; 'In your last paragraph, your
first suggestion is illusory. . . ."; and, "Your last paragraph
- his September 11, 2008 letter to Mr. Johnson which insinuated untruthfulness:
'We've noticed that, in the past, you have had some trouble keeping
things straight. We also noticed that you tend to stretch things somewhat
too far in the name of appearances.' Worse, it accused Mr. Johnson
of unethical conduct: 'It's no surprise, then, that your letter
of 8/7/08 appears to be an attempt to create a false and misleading exhibit
for use at a later law and motion hearing so that your client can sit
in court with a halo over his head, and so you can say look how many times
Ken offered to settle! That wouldn't surprise us at all, given your
practice of attaching a large pile of exhibits to your declarations without
any testimony from you concerning their truth.'
Confronted with such correspondence, Andrew Watters' response ... was
not apologetic. As he indicated at one point, it might have been 'unfortunate,'
but that was it. In his words, 'So I should note if I caused undue
emotional pain on the other side in terms of writing unpleasant letters,
if I offended anyone, then that's unfortunate and certainly a learning
process for me, but the fact is I am not on trial here. And, in any event,
the attorneys on the other side-I'm sure they can handle it. Mr. Mike
Merrill, I think, is a 35 year attorney, former Marine officer in Vietnam,
has seen it all. Mr. Benoit is a 35 or 40 year family law lawyer. He's
seen it all. Mr. Johnson was in the Navy, I believe. These are not attorneys
not able to do lawyering because of unpleasant letters from a baby lawyer
on the other side.' [Italics added]."
Who knows? There could have been some truth to Mr. Watter's statements
about the opposing side's litigation tactics. If so, he was sorely
outmaneuvered, and lost the opportunity to protect his client's interests.
The appellate justices observed that Jill's position on appeal was
equally unrepentant where, referring to "the tone of some of [Andrew
Watters'] written communications," she described it as "the
expressions (sometimes intemperate) of a young lawyer frustrated that
Ken was systematically obstructing the search for the truth by his actions
in resisting routine discovery, which is supposed to be self-executing.
Ken and his attorneys then created a smokescreen that prevented the trial
court from seeing the substance of the communications in context."
Strong, strong language. An important caveat for the lawyers who will use
Davenport to support sanctions' motions for uncivil conduct by opposing counsel
is that accusing the other side of behaving like Mr. Watters may itself
seem abusive to a trial court. While the justices' opinion does not
appear 'overstated' given a record so rich in illustrations of
what not to do, we need to be careful not to overstate accusations, or
to try to fit conduct we don't like into a
Davenport box where that conduct fails to speak for itself. We don't want to
make the same mistakes and so seem as aggressive as our opponents.
The Adversarial Tone Continued On Appeal
Accordingly, Jill was ordered to pay $100,000 in sanctions plus $304,387
in attorney fees to Ken. Unfortunately for her, Wife's attorneys'
strategies on appeal remained obdurate. By this point Andrew Watters had
gone "walkabout" and left the firm (following the trial court
decision). O'Brien, Watters continued with the same verve as it had
at the trial court level. For example, their briefs targeted Judge Cerena
Wong with a number of arguments that the appellate justices might find
to be offensive. The appellate court stated "[i]n sum, Jill manifests a treatment of the record that disregards the most
fundamental rules of appellate review."
For instance, in addition to being highly histrionic, Jill's appellate
arguments scolded the judge, accusing her of relying on inadmissible evidence
while ignoring admissible evidence. Jill's brief posed the question:
"Imagine if a high school civics class had been on a field trip to
the court that day.
How would the teacher be able to explain to his/her students that the judge
said she would not follow the rules?"
It is mind-boggling that seasoned attorneys would argue that high school
students would see that the judge was not following the rules when the
judge herself could not. Of course, the appellate justices concluded that
just the reverse was true, and that all of Judge Wong's conclusions
were well supported by the record and the law but that Jill and her "team"
lacked a comprehension of the rules of evidence and basic propriety.
Frankly, Wife's team had reasons to be concerned about Judge Wong's
treatment of the evidentiary objections, but it is possible that in assailing
the trial court with the tone that they apparently used that this triggered
a defensive reaction in the appellate justices which ultimately took center
stage over the legal issues.
Jill argued that whatever the appropriateness of the statements made by
attorney Andrew Watters, such communications were covered all by the "litigation
privilege" set forth in California Civil Code section 47 and hence
could not properly generate a sanctions' award. Similarly, Jill on
appeal argued that Andrew Watters' communications were protected by
the bounds of free speech and zealous advocacy. Not so ruled the Court.
Family law is not the Wild West, nor a frontier where "anything goes."
What Went Wrong
(Or 'Should People Living in Glass Houses Throw Stones')?
We family court lawyers are not entirely to blame for getting lost in the
dark woods of adversarial divorce to such an extent that some misplace
their ethics or, as here, lose control of our emotions. Our clients'
experiences of divorce are devastating, and lawyers respond to the felt
needs of the consuming public like any other industry. Some clients entice us with a willingness to pay "whatever it takes"
to personify their angst in formulating our strategies for them - and
it is extremely difficult not to become enmeshed in their emotional struggles
to an extent that blur the boundaries between their experiences and perspectives
and our own.
Particularly as a younger lawyer at times I was deluded into buying my
clients' attitudes and personalizing the pain within the stories,
and sometimes adopted an arrogance and one-sidedness in accepting their
views as the entire picture. This remains a struggle for me today. Caring,
which I suspect all the members of the O'Brien law firm share, is
what is honorable about "zealous advocacy." Unfortunately, relationship
wars tend to challenge us all beyond our capacity to stay mindful - within
depth of caring lies a trap. We can care too much, and strong emotions
in any direction are a potent intoxicant. I for one need to constantly
reground myself, and to release the ferocity that accumulates from the
frustrations of interacting with high conflict litigants and attorneys.
And since this is so for me, it is likely so for others - this realization
that can offer some balance and even crack a door to forgiveness.
O'Brien Waters, me the writer of this Blog, and you the reader are
given the invitation and opportunity to reflect upon, re-evaluate, and
close the gaps between our intention and actions, every day. Which is
always a good reason to be grateful, since we can dust ourselves off and
start out anew.
Marriage of Davenport is a wake up call. Andrew Watters is no demon, but this case contains
a concentrated dose of the pitfalls of the adversarial paradigm. Is anybody
Save yourself unnecessary grief and expense, and live a longer life. Seek
out family law specialists who have the genuine desire and interest to
help you set (and reset as required) a tone that might free you from this
mess, rather than binding you more tightly within it!
Thurman W. Arnold, III, C.F.L.S.