TIPS FOR WINNING OR DEFENDING AGAINST SANCTIONS
REQUESTS IN DIVORCE AND FAMILY LAW CASES
Let's realistically discuss sanctions requests, as they may apply in
whatever State you reside in although we will filter the discussion through
California's rules - which, of course, is the "Nanny State."
Chances are, your State has a similar version.
Very few self-represented family law litigants, and even relatively few
"expert" divorce and family law attorneys, realize that in pressing
or resisting a claim for sanctions that they must comply with
Cal. Rules of Court, 5.14.
They also don't understand the "meet and confer" process
that is used to set up such claims, or - again - to oppose them. Please read
Rule of Court, 5.98 governing meet and confer, and attempt to comply with it on your end and
memoralize those efforts in a brief neutral confirming communication.
Indeed, Rule 5.98 applies to all motions, but it most significantly can
impact your sanctions, or non-sanction "level the playing field"
need-based attorney fee requests.
You will note that rule 5.98 requires some authentic efforts to speak face
to face or by phone; nasty or
self-serving letters is NOT enough! Some folks who are overly myopic are afraid that the other side will
back down if a serious effort to resolve the dispute is attempted, but
keep in mind that is better for everyone - including you and your client
- if they do. Lying in wait to riff the other side is an unpleasant and
uncertain endeavor, and it is expensive. BTW, note the irony that a 5.14
sanctions' request is appropriate for a failure to do a rule 5.98
meet and confer (but of a guppy variety).
Try to Calmly Resolve the Issue - and Then Try Again
Really, the sense of it is that we should all be avoiding high conflict,
and the attendant stress and high attorney fees they engender. The Court
Rules actually have a positive aim! Unfortunately, many people - and especially
family law attorneys - are just pretending to try to resolve a sanctionable
offense out of court because, well, they want blood or money! Blood or
money, sadly that is what invigorates many adversarial court relationship disputes.
And, getting an aggressive missive from opposing counsel who is attempting
to set you up, is a huge opportunity for you to about-face and become
[apparently?] entirely reasonable, in your responding meet and confer.
Judo works for those who step aside to let the opponent rush past them,
after all. At least if you are Steven Segall. The movie character Segall,
I mean.... Or is his name spelled "seagull"? I'll ask Putin
about that next time we meet, or Donald Trump for that matter.
The truth is that you are way more likely to win a sanctions' motion
if it really could have been avoided by both sides, where you tried honestly
to resolve the dispute. Unfortunately, too many attorneys or pro pers
are sticking their tongues out to trigger the other party into behaving
in ways you might hope for. Trying to trigger the other side is obvious
to experienced judges. You know, just like flipping off your brother or
pulling your sister's hair when your parents aren't watching?
Didn't usually turn out as you hoped for, neh? Machiavelli, you really are not.
As a general proposition, knowing the family code statutes and rules of
court that are relevant to sanction's requests are more useful for
those who are resisting or opposing such claims. This is because these
rules can be a very effective shield where the other party or attorney
doesn't know they exist, if you can point out their failure to comply
to the Court. Judges generally don't like imposing these kinds of
punishments, except in egregious situations and then look out!
It is essential that you cross the "t's" and dot the "i's"
when you are drafting your moving or opposition sanction related papers,
and that you demonstrate to the Court that you have done so. This demonstration
may take the form of recounting in your moving or reply papers how you
tried, oh so hard, to avoid having to bring all this nastiness to the
Court's attention for appropriate punishment (punishment can include
a refusal to award sanctions, after-all). If you want to surprise the
other side, begin with the presentation of your case in oral argument
by describing the same good-faith efforts to avoid having to bother the
judge with the whole thing, but have the backup in hand. A shitty letter
to opposing counsel will probably cause finger burns though. And who wants
their knuckles rapped with a spoon?
In my experience, almost every time, if you specifically point out to the
judge how the other side failed to follow the rules, the likelihood of
you winning a sanctions request is much improved! So, in particular, know
the applicable Rules of Court
in advance and comply with them! Write vanilla letters, without poking at the other attorney or party,
or pulling their hair. And when you win, please come back and "Like"
At the End of the Day, Remember that
There is Expense and Suffering in 'Winning' Too
Good luck out there, and ... Peace for the New Year! This is my Holiday message.
Author: Thurman W. Arnold