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May 2005The Bench Perspective on Family Law Motionsby Steven N. Grovdahl Be brief, be pointed, let your matter stand Judicial officers frequently begin looking like Hannibal Lecter after serving time in a family law rotation. Their patience is tested every day by shenanigans and imperfections of process that don't often occur in other arenas. It is made no easier by their own recognition of the importance of the decisions they must make. In family law matters, the most important decisions to your clients are not those which are made after long preparation and lengthy trials, but those made on short notice and with scant information parenting issues, complex financial issues, use of the property of the parties are some of the issues that often must be addressed by motions shortly after an action is filed. We also know that these decisions, once made, have considerable inertia and often guide the ultimate outcome of a case. While it is true that it is the task of judicial officers to judge facts rather than the performance of attorneys who appear before them, it is also true that judges and commissioners do make judgments about the level of trust that they might have in each lawyer who appears before them. I am attempting in this article to provide to family law practitioners suggestions that will enhance their effectiveness and professional standing before the court. Preparation Prepare your proof before you argue. The professional is prepared for the hearing. He or she has prepared and carefully edited the declarations of clients and other declarants, taking care to present only the relevant issues and avoiding the presentation of inadmissible evidence in the declarations. The minute you read something you can't understand, you can almost be sure it was drawn up by a lawyer. The professional will make every effort to present the evidence in a clear, concise, and ordered fashion that can be easily followed by the judicial officer and will avoid the use of overly technical legal language. The professional is also careful to avoid unnecessary, inflammatory rhetoric and also eschews bombastic and overly critical comments in the declarations submitted to the court. Most family law judicial officers recognize the toxic effect of conflict on the children of parties to a dissolution. Judges often view the litigants who fuel such conflict with some disdain. The place of justice is a hallowed place. If the clients and others are brought by the attorney to the hearing, the attorney should take the time to explain to these parties what the protocol for the hearing is and what is expected of them during the hearing. For example, he or she makes sure clients and their supporters have their hats off, turn off cell phones, and are not chewing gum. It is explained to them that it is inappropriate to exhibit overly expressive body language or to speak out without being asked during the hearing. With these issues addressed prior to the hearing, there is a greater likelihood that the hearing will progress smoothly and without interruption. After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Although it is somewhat unusual for complex legal issues to be presented in family law matters, it does occur occasionally. It has been my experience that even in those cases where there is a fairly unique legal issue presented, it is a rare occurrence that counsel take the time to research the issues. While it might be assumed that the judge or commissioner has encountered the precise issue before and is familiar with the law, that assumption is not always warranted. The other danger in asserting a legal position that you have not adequately researched is that the judicial officer may in fact know the law, and the law may be contrary to the position you have taken. When that happens, your client may be upset by your lack of awareness of the prevailing law on an issue important to their case. As another element of preparation, it is important to have also taken the time to discuss the case with opposing counsel. Even if the entire case is not resolved, it is extremely helpful if the attorneys have managed to limit the issues the court must decide by reaching an agreement on some of the issues. The other benefit of whittling down the issues is that more time can be devoted in argument to those crucial issues that have not been resolved. Conduct During the Hearing Let your accusations be few in number, even if they be just. The professional in family law first of all concentrates on the client's case. He or she does not get distracted or create distractions by turning the hearing into a grudge match in which he or she complains about treatment by opposing counsel. He or she will conscientiously avoid paying disrespect to another person because of that person's gender, sexual orientation, race, disability, age, religion, or marital status. When the case is argued, the professional will point out credibility concerns without demeaning the other party by calling them liars or perjurers. If the court please, I am about to illustrate it by a diagram, and I hope to make it so plain that the audience, and perhaps the court, will understand. It is helpful if the attorney begins his or her argument by summarizing what the issues are and giving a brief statement of the background of the case. It is also helpful if the presentation is concluded by clarifying precisely what the client is asking for, so that the client's position is clear in the judge's mind. In particularly complex or confusing cases, it may be of assistance to the court if you present illustrative exhibits or written summaries of the evidence. Conduct After Argument Do not attempt to confute a lion after he's dead. After attorneys have presented their case, the court should be allowed to fully articulate its decision without interruption. Interruptions often lead to confusion, and that in turn can lead to issues being overlooked by the court and the parties. Once the court is through with its oral ruling, if the attorneys have any questions or need clarifications, they should respectfully ask the court for clarification. If they believe from the comments of the court that it is mistaken in the factual basis for its decision or have made an error of law they might again respectfully ask the court for reconsideration. [Appeal:] In law to put the dice into the box for another throw. If the court does not change its decision, however, the revision or appeal process should be relied on to resolve your client's concerns. The role of argument in a family law hearing should be limited to arguing with opposing counsel, not the judicial officer. Conduct After the Hearing Decisions are not like fine wine they don't get better with age. Following a hearing, the professional will do his or her best to have orders promptly prepared and submitted to the judicial officer so as to avoid a future presentment. The longer attorneys take to prepare their orders following a hearing, the more they will disagree and the more likely a presentment hearing will be necessary. It is unfair for clients to have to pay their attorneys to argue a case at presentment that could have been better presented shortly after the hearing when the matter is fresh in everyone's mind. Also, it is almost impossible for the judicial officer to recall the precise details of the holding months after the hearing. If respect for the courts and for their judicial process is gone or steadily weakened, no law can save us as a society. Lawyers, whatever their views on controversial decisions, must inspire respect for the judiciary. The real test for the professional is what happens after the hearing, outside of the purview of the court. Judicial officers are not naοve they can expect that any party who has not fared well before the court will be quick to criticize their own counsel, opposing counsel, and the court. This will provide an attractive opportunity for counsel to divert criticism by claiming that the opposing attorney is unprincipled or corrupt, or criticizing the court as being unfair or ignorant of the law or facts. As we all know, the legal system is already regarded with cynicism by the public, and any expedient, face-saving comments that attack lawyers or judges merely affirm that public perception to the client. Clients who hold the belief that they are victims of corruption or incompetence are also less likely to be compliant with court orders. Every calling is great when greatly -pursued. Family law practitioners should be mindful that their work can be a high calling, often profoundly affecting families and children. The manner in which they present their case can also be destructive and counterproductive if that perspective of family law is ignored. The professional handling of family law motions can not only enhance an attorney's professional good will and standing with the court, but also set a higher standard to which other members of the family law bar can aspire. ______________ Steven N. Grovdahl has been a superior court commissioner for Spokane County since 1998 and presently serves on the Family Law and Juvenile Court Committee of the Superior Court Judges' Association. He can be reached at familylaw@spokanecounty.org.
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