Beware of Marriage of Davenport: Sanctions for “Aggressive” Lawyer in Divorce
I do not have enough fingers (and toes) to count the number of times a potential client has called this office looking for a family lawyer who is “mean”. The adjectives describing their dream lawyer can actually be quite humorous ranging from “blood thirsty shark” to “pit bull” and these types of clients will make it clear they want someone who has a “take no prisoners” attitude in litigation. It always gives me pause that someone would look for these qualities when looking for the person they will have to work with during one of the most emotionally devastating times of their lives; when they have to simultaneously have to face the dismantling of their family, the restructuring of the lives of their children, the loss of their partner and the division of the assets they have worked so hard their entire lifetime to acquire. I do try explain that the courts do not favor this type of approach and our system has developed such avenues as mediation and collaborative law in response to the laws of supply and demand which favor a less invasive and bitter process for resolving these sensitive issues. Nevertheless, there are still those who favor the scorched earth approach. Often, those are clients I am not willing to work with. And to those I share this cautionary tale of Marriage of Davenport (2011) 194 Cal.App.4th 1507.
In this case, Justice Richman of the First Appellate District for Sonoma County, California made it clear that family law attorneys who embark on rampaging attacks against the opposing party and/or their attorneys risk meaningful and significant sanction awards. Clients who permit or encourage their attorneys to manage their cases in this style will find their purses and wallets opened very wide to the other side.
In Davenport, the court found that offending attorney had committed a variety of wrongs including (1) failing to meet and confer before filing a motion; (2) sending a series of hostile and disrespectful letters; (3) referred with disdain to opposing counsel and his experts, (including referring to the IT experts in the case as “nerds” that opposing counsel met in a karaoke bar); and (4) wasted the court’s time with a frivolous and expensive mini-trial in the midst of trial regarding the credentials of experts. For these offenses, the court found that the party who hired this lawyer would pay sanctions of $100,000 and attorney’s fees of $304,387 to her spouse. Nearly a half a million dollars just for choosing a lawyer who could not be civilized and play by the rules. In its findings, the Court held that “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.”
I try to remind clients of this. It is not always easy to consider being cordial to someone who is causing you pain. However, the long term benefits of conducting your divorce or separation proceeding in good faith and with grace and dignity cannot be overstated. I like to suggest to my clients, especially those with very young children, how happy it might make their children in 25 years to see them not only sitting nicely at the same table at their wedding, but perhaps even sharing a dance.