Family law is a very pleading-oriented and procedurally driven practice. The first impression our courts and adversaries form of us comes from the quality of our letters and pleadings. Do not delegate proofreading to support staff. Thoroughly read all documents and correct all errors. Careful proofreading will also enable you to double-check the content of your document to ensure the clear expression of argument. Make sure that the facts pled are sufficient to plead a cause of action and carry your burden of proof.
Prior to filing any pleading, one should understand the appropriate procedures to follow in each matter. Consult the local rules for the parish of filing. For example, some districts or judges allow “mail in” divorces (with the requisite affidavits, etc.) while others require a court appearance, two witnesses, etc. Another issue may involve casting of costs to plaintiffs who are paupers. While the general rule is paupers may not have to pay advanced court costs, some may agree to absorb some or all of the costs, typically to “speed up” the process. Consult the district to ask these and other procedural questions.
The Louisiana Code of Civil Procedure and Title 9 of the Revised Statutes (the Civil Code Ancillaries) contain a wealth of information that is often overlooked by practitioners. All too often, attorneys file for relief to which their clients are not entitled or that cannot be obtained by the process selected by the attorney. If a family law statute does not address a specific process, then look at Local Court Rules,1 Uniform Family Court Rules, Uniform District Court Rules, or the Code of Civil Procedure. Be sure your adversary is using procedure correctly. If not, file the proper exception(s) and a supporting memorandum as required by court rules. The exception may provide you with extra time or a strategic advantage.
Too many attorneys do not have a working knowledge of the contents of the Code of Civil Procedure. It is a magical book! It is filled with content that can help you speed up your case or slow it down—whatever suits your needs. Sometimes, it can make a difficult case become a case that is much easier to resolve. In a legal services practice, one juggles cases to meet as much of the need for legal assistance as possible. The Code of Civil Procedure can provide practitioners with legitimate ways to delay one matter so the attorney can address another that may be more critical.
Family courts may look at the larger picture and may excuse some procedural mistakes either because nobody “did it that way” or for reasons of judicial economy. Depending on where you are in the case, choose your battles in deciding how hard you need to press on the issue in order to win the war.
Common mistakes include the improper cumulation of actions, failure to join parties needed for just adjudication, improper venue, failure to state a cause of action, improper service, and seeking a result over which the court does not have jurisdiction. Thus, a good starting point is to review the Code of Civil Procedure. Pay particular attention to the articles on venue, exceptions, written motions, and discovery. Read the articles particularly relevant to family law. For example, Title 4 of Book VII provides specific rules for ex parte orders of custody, Article 102 divorces, and other issues.
An example of an improper cumulation of actions occurs when a reconventional demand to a summary proceeding requests relief that must be instituted by ordinary proceeding. For example, a client may file for a protective order pursuant to La. R.S. 46:2131–2143. The defendant may then file an Answer and Reconventional Demand wherein he not only answers the protective order petition but also reconvenes against the client for divorce. Insofar as the divorce action must be by an ordinary proceeding and the protective order by a summary proceeding, the reconventional demand may be improper because the delays for these hearings differ. Under La. C.C.P. arts. 464–465, courts have some discretion in these situations. Remind the court that the summary proceeding must be heard within the statutory delays and not simply continued to accommodate the delays for the ordinary proceeding.
Another example is knowing the result of your client “agreeing” to a protective order or injunction and what that may do to later proceedings relating to divorce, custody, spousal support, and even community property.2 It would be malpractice not to know and understand the impact of agreeing to something that may negatively impact your client’s future litigation. This is particularly important in cases involving domestic violence, where distinct statutory regimes may apply and where the appropriate end goals of litigation may be different from those prevailing in family law cases where domestic violence is not an issue. Thus, an attorney should be familiar with the general statutory framework for domestic violence cases3 and be ready to involve the assistance of a specialist when taking on such cases.
The law in this area is fluid and is different across districts. Be sure that you review recent developments, attend CLEs regarding both substantive law and best practices, and consult with other attorneys for novel cases. It is essential and part of your obligation as a lawyer to know the law. Failure to do so may result in malpractice.
To summarize: (1) know the Code of Civil Procedure and Civil Code as it pertains to your cause of action; (2) know and understand local rules, and, if something seems ambiguous, call someone (judge’s staff, the Hearing Officer, etc.); and (3) proofread all pleadings and letters before they are sent. Our courts are very quick to pass judgment based upon their perception of an attorney’s competence and attention to detail. Thus, it is important that you know what to file and how, when, and where to file it. With the advent of technology, there is no reason why you should not be able to access relevant law and practice information with the click of a mouse.
We can all agree that all lawyers, family lawyers included, have demanding and challenging workloads. It is the nature of our career choice. At least 50% of all case filings (a conservative estimate) in most of our state district courts are in family law and that percentage keeps rising. Many, if not most, of these cases involve self-represented litigants; in some courts, 70% of family cases have a self-represented litigant on one or both sides. Family law also makes up over 50% of all cases cumulatively handled by our Louisiana legal services programs. As family law changes and expands every year, it is crucial to maintain the highest standards of representation for our clients.
- 1These rules are available at the website of the Louisiana Supreme Court and are currently found here.
- 2For a more detailed discussion of some of these issues, Section 3.5 of this manual’s chapter on representing survivors of domestic violence.
- 3To that end, an attorney representing family law clients pro bono or through legal services should be familiar with the contents of this manual’s chapter on Louisiana domestic violence law.