Proper pendente lite strategy is critical in civil litigation

Pendente lite strategy is critical in civil litigation. While the pre-trial period in many civil cases is relatively short due to fast-track rules, dissolution of marriage and other family law cases are exempt from those rules. In these domestic law matters, the months before trial can be used to structure an appellate strategy.

Fewer family law cases are appealed than other actions, and dramatic reversals are rare. Regardless, the opportunity to mitigate a less-than-satisfactory trial result may evaporate if appeal panning is neglected.

Patching Errors

Significant errors in discovery or procedure must be corrected. Such "potholes" are more easily and inexpensively patched when they occur. It is also important to challenge statutory infringements and indiscretions expeditiously, whether by the opponent or the court. Failure to assert error waives that claim. Litigants with a grievance must assert their challenge when it arises or relinquish it.

The reason for this has to do with appellate function. First, review standards do not mandate reasonability under all facts and circumstances. If the trial officer applied facts existing in the record, which are material and pertinent, and used rationally in the judgment, it will stand. Only if the judgment significantly deviates from reason, confounding logic, will it be overturned. Facts on the record differing from those cited in the judgment, which could reasonably support an alternate decision, are insufficient for reversal.

Second, the existence of error in part of the judgment will not always lead to reversal. Errors must be egregious enough to substantially alter the outcome of the case. Trial court mistakes not causing "injustice" will be dismissed as "harmless error." Facts amenable to various logical conclusions demand extra support buttressing the client's position. Counsel should also gather facts minimizing opposition claims. Proving the client's claim is insufficient. Make the client's case the weightiest and most credible. Here's a few tips:

Obtain all necessary records and testimony. If the opponent lacks resources, expect attempts to mitigate their dearth of proof by excluding harmful evidence. Research foundations and authorities for entry of client evidence. Neutralize objections to the client's proof with Evidence Code and case citations mandating entry and exclusion of opposition proof. State and local rules require exchanging witness and exhibit lists before trial. Take preemptive action!

Organize challenges and defenses to eliminate inadvertent waivers. Request rulings by the judge. Test foundations of opponents' doubtful claims; argument cannot substitute for proof. Arrange impeachment material by exhibit and witness. Cogent challenges render trial judges more inclined to sustain objections.

Objections cannot be tacit; counsel must make a record. Insist the grounds for rulings are on the record. A strong argument failing to achieve its goal at trial projects from the record, and much appeal research will already be done.

Demands for statement of decision (SOD) solidify the client's appellate posture. For simple litigation, oral SOD requests on the record before submission of the case suffice. Briefly outline the mandatory issues and facts for an effective SOD. A written request for SOD is essential when a lengthy trial tests complex facts, has substantial financial risk, or is subject to split authority. SOD demands must comply with statutory timeframes and specify each material issue, fact and authority relevant to the case. SODs should include the issues for each cause of action, a list of facts to sustain each claim, and statutory and case authorities supporting the judge's rulings. It is common to see judges following or referring to the SOD outline during trial.

The SOD demand is critical to staging the appeal. Absence of a SOD request allows use of the doctrine of "implied findings." The reviewing court can then assume the judgment was supported by sufficient evidence. The SOD request and the judgment, even if the court prepares no SOD, pinpoints material mistakes during trial, and forces the appellate court to consider each of them, subject to "harmless error" analysis.

Discovery

The proponent of any cause of action or issue must present sufficient evidence to prove each element of that claim. Gathering evidence is the aim of discovery, and provides efficient ways to investigate and collect proof. Besides the mandates of the Civil Discovery Act (CDA), the Family Code adds fiduciary duties, increasing penalties for resisting forthright disclosure.

Demands for production of documents, interrogatories and requests for admissions are the most common discovery in family law. Discovery procedures can be abused, even nullified, by improper demands and responses.

Use and abuse of discovery are outlined in the CDA. Common discovery abuses involve skirting full compliance with the CDA. In such a case, counsel should quickly "meet and confer." The parties must discuss and negotiate good faith solutions to their discovery disputes. If meeting and conferring does not yield solutions, aggrieved parties must file a request for order (RFO) compelling compliance with the CDA. Untimely RFOs waive the relevant discovery objections. Persistent problems necessitate filing RFOs to compel substantial compliance and seek sanctions to discourage further abuse. Neglecting steps in discovery enforcement can compromise a meritorious appeal, even where the trial court caused the non-compliance.

Complication arises from judicial antipathy toward discovery RFOs and SOD requests. Large calendars, heavy case-loads, and staff reductions, explain some impatience with detailed, research-heavy, discovery motions and SOD requests. But judicial disfavor for discovery motions and SOD requests causes unfair prejudice to litigants. Negative attitudes contradict a judge's oath, tarnish the public's view of bench and bar, undercut the legal system, and compromise fair trial rights. A proper SOD demand helps identify deficient rulings and judgments on appeal. Silence in the record about insufficient pendent lite judicial redress for discovery and procedural anomalies renders appeal pointless.

Judicial hostility notwithstanding, counsel must effectively champion their clients. Attorneys may need to voice courteous reminders to judges that disrespect for part of the law by the parties or court, engenders disrespect for all law. Counsel take false comfort that years on the legal battlefield qualifies them to 'go it alone' in high-stakes cases. The typhoon of pendente lite and trial tempests can overwhelm the best of lawyers. Prudence advocates obtaining appellate counsel's input long before trial.

Donald S. Sherwyn is an attorney with the Reape-Rickett Law Firm in Valencia.