A Shifting Judicial Response to Overzealous Advocacy: Excessively Exuberant and Inflammatory Litigation Tactics Will Not Be Tolerated in California
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.
Marriage of Davenport encourages family court bench officers to use sanction awards to corral attorneys and litigants who stubbornly act out, but it does more. Appellate Courts are not merely affirming monetary punishments, they are publicly shaming disputants and family law professionals who fail to act appropriately. Justice Richman excoriates not only one lawyer and his client, but also the Santa Rosa law firm for which the attorney worked. Last month the Second Appellate District in Ventura County upheld a sanctions award against a self-represented attorney in a family law proceeding, and reported him to the California State Bar as well.
Davenport raises important questions. Some of these include:
- What level of vitriol and sarcastic behavior is permissible in the trenches of high-conflict divorce proceedings?
- Does "zealous advocacy" on the part of divorce warriors require bullying behaviors and name-calling?
- If attorneys, or the clients in their stead, are to be held accountable for conduct that increases the adversarial tone of the proceedings, might this have a chilling effect upon less empowered parties, making them more vulnerable to exploitative litigation tactics?
- Should the California legislature amend Family Code section 271 to specifically empower trial courts to sanction family law attorneys for conduct that drives up the costs of litigation? Good arguments exist for and against explicitly making such a public policy statement (another day, another blog).
While my review of Davenport may seem harsh, I believe that it captures the frustration of the appellate court. I endeavor to quote Justice Richman. One fascinating aspect of this decision and the case itself is that it came to be all about the lawyers, and one newly minted lawyer in particular who represented the wife. It is possible that he was triggered into acting out by the activities of the other side. I've certainly opposed law firms that couched all their communications in a kind of provocative sarcasm that makes responding in kind very hard to resist, I believe with the specific intention of hoping to cause me to speak improvidently so that my comments might later be shown to the bench officer assigned to the case. Davenport reminds us to mind our tongues.
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 award...."
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 themselves).
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 tactics."
- "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 concealments occurring. 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 claim. 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 Feldman]."
- 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 accountant.
- 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 rings hollow.'
- 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."
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 listening?
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.