Domestic Relations on Appeal: Tips for a Seldom Taken Journey
I have been a lawyer for over 25 years, and a large part of that time has been spent in the appellate courts of this state. First as a law clerk on the state Supreme Court, and then as an associate and partner in a small law firm whose attorneys have always focussed their practices on appeals, I have handled hundreds of cases, ranging from criminal misdemeanors to multi-million civil judgments, raising every substantive issue imaginable. Division I Judge Susan Agid says that appellate judges are the last generalists left in the law, and that has certainly been my experience as an appellate practitioner.
But it is in domestic relations - an area of the law that some think should not even be subject to appeal as a matter of right, and where the criteria governing decision-making at trial and the standard of review on appeal are intentionally crafted to make it more difficult to obtain effective review of a trial court's decision - that I have had the most success in fulfilling my goals as a lawyer. The thing that most drew me to appeals as a law student and young lawyer was the possibility not only of trying to bring justice to a particular set of litigants, but of shaping policy through the common law. I have always tried to keep those two complementary goals in mind in evaluating and arguing cases on appeal. Sometimes that is a more difficult thing to do in family law cases - because of the emotions involved, because these disputes aren't "just about money," keeping both the client's and the attorney's goals and expectations realistic can be difficult. This paper sets out some general principles that I try to keep in mind in handling domestic relations cases on appeal:
Know Your Audience
Only a few of the 30 men and women currently sitting as appellate judges in this state had an extensive domestic relations practice before joining the appellate bench. For most appellate judges, RCW ti. 26 is foreign territory - a third world country they don't really want to visit, and that they won't without a clearly written, concise guidebook. Don't presume knowledge about the law or family dynamics governing domestic relations cases in the appellate courts.
Think Outside The Box
Many matrimonial lawyers are good at their jobs because they know"how things work," can predict what a trial judge or commissioner will do given a particular fact pattern, and act on that knowledge in resolving family law disputes. When a domestic relations case has not settled (as the vast majority do), and has not only gone to trial but is on its way to appeal, "that's how we always do it" is no longer a good reason to do anything. The appellate judges don't know (or care) how things are always done (see Know Your Audience, supra), and you must think creatively to find a fair resolution for the unusual family dynamic that has lead to a domestic relations appeal.
Read The Statute
Divorce is wholly statutory, and RCW ti. 26 is the Rosetta stone of domestic relations appeals. I often joke that the secret to my success as an appellate lawyer is that I read the statutes. But there is more than a little truth to that claim in domestic relations appeals. Sometimes when I evaluate a case for purposes of appeal it seems that I am the first attorney involved who has actually looked at and critically addressed the statutory criteria for decision that govern the substantive issues in the case (see Think Outside The Box, supra).
"Family law" is not an oxymoron. The Domestic Relation Act of 1973, the Parenting Act of 1987, and the Uniform Child Support Guidelines are all comprehensive, thoughtful pieces of legislation that have consistent themes and parameters. Use the language of the statutes in arguing your cases.
Recognize Your Limits
Good lawyers (and good judges) recognize that the law is of limited utility in healing the psychological and sociological traumas that lead to and flow from the breakup of a marriage or the other dysfunctional family dynamics that are governed by the chapters of RCW ti. 26. In the end, we can not legislate or decree matters of the heart, and the statutes and case law governing domestic relations reflect those limits on our abilities as attorneys and judges. The decision in Marriage of Littlefield (see Read The Statute, supra) is a classic example of the appellate courts' proper resistance to judicial/legislative micro-management of family dynamics.
Lawyers are often drawn to matrimonial law through a desire to help others, and there is sometimes an almost overwhelming desire to "fix" things by seeking relief that a court cannot practically effect. Our clients are, by and large, adults who do not permanently lose the power of reason - and thus to make decisions for themselves and their families and to deal with the disappointment if their expectations are not fulfilled - simply because their marriages break up. Except in extraordinary situations, the law should be interpreted and applied to facilitate the autonomy of litigants, including the parties in family law cases. Recognize the limits on your ability to effect psychological healing through the law.
Most lawyers (and judges) have never been the victim of crime, and none of us (presumably, if the Bar is doing its job) are criminals. Luckily, most of us (if we are doing our own jobs!) will never be defendants in a civil case, and having seen the costs and effects of litigation we will avoid suing others as well. A large part of our value in society as lawyers is the ability to look at a fact situation dispassionately, and to advise and advocate for the participants in events that lead to litigation without undue emotional involvement.
But all of us have family relationships. We are all children, parents, siblings, or spouses, and it is difficult for both lawyers and judges not to project our own experiences into the often very different family dynamics that lead to domestic relations cases. This projection can lead to bad advice and bad decision-making that says more about the lawyers and judges involved than the cases before them.
That is one of the major reasons that as lawyers we must remain focused on the law (see Read The Statute, supra) in those cases that lead to appeal (see Think Outside The Box, supra) and must also fulfill our responsibility to keep the judges we appear before (see Know Your Audience, supra) "on-task" in deciding them (see Recognize Your Limits, supra). If projection has become a problem, it may be time to bring someone else into the loop or to try a new approach to the dynamic among the parties, attorneys, and judges involved that has led a domestic relations case to the appellate courts.
Honor The System
The power and responsibility of the courts in defining our society cannot be overemphasized. The responsible exercise of that authority is the obligation of each of us as lawyers:
[A]lways be filled with the knowledge that as a lawyer, you are fulfilling a high purpose in society. You are the instrument through which our society resolves conflicts peacefully; and the method we choose to resolve conflict is what determines whether we are civilized or savages. I know of no more important role that anyone can fill in society, and we fill that role. And it is in fulfilling that role that we are truly professional.
Being always aware of the important purpose we fill in society will help us become better advocates. We will be able to write and speak with purpose and an inner conviction that what we are doing is important. This knowledge will cause us to show respect to others involved in the process, including judges, opposing counsel and the adverse parties. We need this respect to be effective in an arena of conflict.
Being filled with the knowledge that what we are doing is vitally important will give us inner strength that will show through to the court, to the jury, and opposing counsel. This high purpose will motivate us by elevating the otherwise hundreds of mundane things we do to a part of a ritual that leads to fulfillment of a goal larger than each of us--that is, holding the fabric of society together through peaceful resolution of disputes.
M. Edwards, Professionalism on Appeal, Appellate Advocacy in the Nineties at 1 (privately published 1990, available from Edwards, Sieh, Smith & Goodfriend).
The realistic use of the appellate courts to resolve family law disputes, and to provide the parameters for resolution without litigation of the problems facing hundreds of other like-situated families, is one of the most compelling and gratifying ways of fulfilling the lawyer's role in society.