CHANGING THE WAY YOU PRACTICE TO AVOID THE LEE v. LEE TRAP -- OR LEARNING TO BE AN OBNOXIOUS LOSER

[Site manager's note: In the years since this landmark case came down and this article was written, there have been numerous appellate decisions, nearly all of them rigorously applying the rule in this case but some of them easing its harshness somewhat. Nonetheless, the Lee rule remains something the Virginia lawyer has to deal with in every Circuit Court case.]

On June 5, 1990, the Virginia Court of Appeals decided a case that will profoundly affect the way we practice law in the courtroom -- particularly in equitable distribution trials. Many people promptly forgot about Lee v. Lee when reconsideration was granted, but then to nearly everyone's surprise and over the dissent of Chief Judge Koontz and Judges Benton and Coleman, the Court en banc affirmed it. The news of this rather bizarre opinion, and of the malpractice trap it creates, deserves the widest possible dissemination.

In short, Lee v. Lee, ___ Va. App. ___, 404 S.E. 2d 736 (1991), requires you to risk contempt by re-objecting after you have argued and the judge has ruled -- on both evidentiary and procedural points and substantive matters of divorce law. If you don't do this, or find some alternative post-ruling way of recording the objection, the point will not be saved for appeal. Signing the judge's order "seen and objected to" is not enough.

Lee v. Lee was a startling ruling that surprised both counsel, as well as the trial judge. They all thought that signing the order "seen and objected to" would preserve the objection.

In this case two lawyers in Salem argued their respective sides of the equitable distribution issue, including classification and valuation of property, and monetary award. Siding with one of the lawyers and not the other, the judge ruled. No transcript was made of the argument on these legal points. The losing lawyer signed the judge's order "seen and objected to" and took his appeal.

A majority of the Court of Appeals however, sua sponte and citing the text of the evidentiary Rule 5A:18, (which requires counsel in a trial to state the grounds of an evidentiary objection in order to make an adequate record), dismissed the appeal. It stated that the losing counsel's substantive-divorce-law "objections" -- meaning his arguments -- had not been adequately preserved for appeal.

The majority explained that after the judge ruled on the points of equitable distribution law, losing counsel was required to re-argue to the judge, pointing out why the judge was wrong, because otherwise the judge would not have an opportunity to reconsider and reverse himself on each point.

In fact, both counsel assured the Court of Appeals, as did the judge below, that it is not local custom to re-object after the judge has apparently ruled. The majority curtly answers that local custom is no excuse for ignoring the Supreme Court rules.

Chief Judge Koontz and two others dissented, urging that this decision elevates form over substance and produces an absurd result that the legislature never intended. He explained that what the majority wants counsel at trial to do is a useless act of pointing out the obvious. This grossly perverts Code Section 8.01-384, the statute abolishing the "Bill of Exceptions." In Judge Koontz's opinion, the majority's interpretation of Rule 5A:18 defeats the legislative intent to provide a review of the merits of equitable distribution cases as of right under Code Section 17-116.05(3).

There are some other disturbing things about Lee v. Lee that the dissenters did not point out, which counsel also have to keep in mind. First, what the majority requires and the dissenters label "a useless act" is also a dangerous act. It requires counsel to ruffle judicial feathers and come close to the brink of contempt. Thus it will be difficult for many beginning lawyers who would rather rely on meek and ingratiating behavior, but it must be done.

This unfortunate situation creates an opportunity for a judge who does not have unlimited stores of patience and is not feeling particularly charitable on a particular day to bully young attorneys who find themselves caught between the ineluctable imperatives of avoiding malpractice liability and avoiding disrespect to the judiciary.

Already, one Fairfax judge has replied to the usual Lee v. Lee speech ("Your Honor, I must respectfully repeat my objection for the record because of the case Lee v. Lee, which says...") with "I've heard that before and I'm still telling you to sit down and shut up or you'll be sorry. Not one more word."

Second, it appears that the Court of Appeals has taken a rule which arguably applies to evidentiary rulings in jury trials and extended it to rulings on points of substantive law. There has long been serious doubt whether the old-fashioned trial practitioner who says "Please note my exception" after every adverse evidentiary ruling was performing an act of superfluous grandstanding. It now appears that these histrionic practioners not only were right, but should have been even more theatrical.

It is obvious that in Lee v. Lee the Court of Appeals has created an even more dangerous environment for trial practitioners. There is the danger of contempt when one is restating objections after the judge says "I repeat, counsel: I have ruled. That will be all." There is the danger of losing any chance to even argue an appeal, and of course there is potential malpractice liability. The question is what you will have to do to avoid these dangers. How will you change your practice to live with the Lee v. Lee opinion?

First, don't try to save the client money. Bring a court reporter to final argument, and make a verbatim record of legal arguments as well as the evidence. Though the court in Lee did not expressly say so, it appears that this might be adequate to satisfy the appellate judges and avoid the problem the Salem lawyers unwittingly fell into. (However, a Fairfax judge ordered the lawyers in an equitable distribution case to spare him the oratory and furnish written closing arguments. They did so, and the Court of Appeals held that this does not take the case outside the Lee v. Lee rule. Skubal v. Skubal, unpublished, Record No. 350-90-4, June 3, 1991, 5 VLW 1196.)

Second, if you have the cooperation of opposing counsel and the judge who ruled against you (which the Court of Appeals seems to think you always have), you can craft one of those Final Orders that says after each legal ruling and fact-finding "to which complainant (or defendant) objects." This apparently would do it if it is coupled with a transcript which shows the argument which you unsuccessfully made. Of course what the Court of Appeals seems to overlook is that most judges ask the winning side to draft the Final Order, so without some measure of professional courtesy, the losing counsel will have to take the case through that extra step, the "order-presentation hearing," with all the delay and expense that that entails. Only that will ensure that there is a final order which preserves appellate points satisfactorily to the Court of Appeals.

But these may not necessarily be true alternatives to confrontational courtroom practice, though, because of the vital matter of timing. Since you can't be absolutely certain in advance that you will succeed in obtaining the carefully-crafted order, you cannot really feel safe without making those truculent re-objections to each legal decision as the judge makes it. It would probably be wise to say each time "Your Honor, although I did hear what the Court just said, I am nevertheless compelled by the Court of Appeals' ruling in Lee v. Lee to respectfully articulate my obvious exception to that particular ruling." If you still don't feel safe, because you have one of those bristling judges who considers this unduly abrasive law practice, you will just have to summon up reserves of courage from somewhere -- and bring your toothbrush.

The one thing you must never, never do is to endorse any order you don't like as "Seen" or "Seen and Objected to." The Court of Appeals majority has put together a rule from the combined results and interpretations of Lee v. Lee; Langley v. Meredith, 237 Va. 55, 376 S.E. 2d 519 (1989); and Weidman v. Babcock, 241 Va. 40, 400 S.E. 2d 164 (1991); that no matter how many citation-laden legal arguments are placed in the record at trial, no point is saved for appeal unless it is repeated on the losing party's endorsement line on the final order appealed from. Skubal, supra. This leads to absurdly long written repetitions of legal argument covering more lines than the order's operative text does, all following the words "Seen and objected to because..." In other words, you should list on the draft final order every conceivable error that you might later (after reviewing the transcripts and the legal authorities) want to assign on appeal. Yet at least one circuit judge simply refuses to sign draft orders with these "speaking endorsements," and another has taken to writing in below his signature the comment that what is objected to did not happen and the losing party's counsel is untruthful.

Then there is the Motion for Reconsideration, something else the Lee majority scolded trial-level counsel for not doing. This, too, will now become an obligatory part of Virginia trial practice. Once again, don't try to save the client money: do it. And don't try to cut corners by merging the reconsideration hearing with the order-presentation hearing, bringing no court reporter to it, or failing to make the reconsideration motion in writing -- all of which proved fatal to the appellant in Skubal.

To lawyers the only comfort is that the problem may be capable of legislative solution. As for clients, well ... show your client a copy of Lee v. Lee. He or she is sure to understand.