Category Archives: Court Rules

South Carolina Supreme Court’s New Revisions To Rule 8 (Confidentiality) Of The South Carolina Alternative Dispute Resolution Rules

On or immediately after May 1, 2018, the South Carolina General Assembly will most probably have approved the South Carolina Supreme Court’s Order of January 31, 2018, making substantive and impactful revisions to Rule 8 of the South Carolina Alternative Dispute Resolution Rules (SCADR); and I believe, at least from my perspective, that the South Carolina family court practitioners should be aware that there may be certain “unintended consequences” resulting from these Rule 8 revisions.

SCADR Rule 8 is, and has been from its inception, the Rule governing the confidentiality of the mediation process.  Currently, Rule 8 begins by stating that “(C)ommunications during a mediation settlement conference shall be confidential”; and then the Rule moves forward from there.

The genesis for the “revised Rule 8” most probably came from the fairly recent case of Huck v. Avtex Commercial Properties, Op. No. 5500 (S.C. Ct.App. refiled on March 28, 2018), where one of the appellate issues focused on the appellant’s effort to disclose and introduce at trial a purported agreement which had been reached by the parties during their mediation; and in addressing that particular issue, the South Carolina Court of Appeals stated the following, in pertinent part:

“We find the trial court erred in denying Avtex’s motion to disclose settlement.  The documents referred to in Rule 8 are designed to protect any documents prepared for use by the mediator and the parties to the mediation itself.  Once the parties reach a settlement, documents prepared in conjunction with the settlement and release are not for the purpose of, or in the course of, mediation.  Rather, they are documents prepared in connection with the litigation and to bring the litigation to a close.  Rule 8 is designed to protect the communications made during the mediation itself and to protect the process.  The parties’ mediation agreement reinforces the rule and simply incorporates the same language.  The request for production of the settlement documents does not disclose confidential information from the mediation (i.e., it does not disclose or discuss information the parties utilized to reach the settlement).  Further, any confidential matters the parties do not want disclosed can be protected through court proceedings including confidential provisions.” (Emphasis added)

Our Supreme Court’s ordered revisions to SCADR Rule 8 are intended to offer more clarity (1) as to parameters of “confidentiality” during the “course of the mediation proceeding”, and (2) as to what can, will – or might – fall outside these “confidentiality parameters”.  And so with that stated, I would like to try and breakdown, section-by-section, the revisions to Rule 8 which will now govern the mediation process beginning around May 1, 2018, and I have tried to emphasize in bold lettering the “new revisions” from the current SCADR Rule 8, and then provide some brief “comments” regarding each of these revisions:

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Early Neutral Evaluation In The South Carolina Family Courts – Finding A New (Better) ADR Way Forward

I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.

However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar.  Period.

In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”.  I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time).  Here they are (and I’ve taken some slight editorial license on the emphasis):

“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose.  This structural ‘baggage’, like everything else in life, always has a plus and minus to it.  For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …

The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …

The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions.  This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …

Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”

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Ashburn v. Rogers and SCDSS/CSD – The South Carolina 2017 Family Law Case Of The Year

Last  year I wanted to try and single out what I felt to be one of our South Carolina appellate courts’ published opinions which I believed to be of some significance for our State’s family court bench and bar and/or which, at least in my view, represented a unique use of our existing statutes, court rules, or Supreme Court orders (1) to achieve a successful outcome for that affected client, (2) to provide appellate court “clarity” to certain difficult and complex areas of family law, and/or (3) to perhaps add another, significant “arrow into the quiver” of the family court bar moving forward.

For 2016, I had selected the case of Noojin v. Noojin, which not only had a significantly interesting fact-pattern, but one which addressed in great detail a range of contempt of court-related and parental alienation-related issues; and which also provided our family court bar with a more defined “road map” on when and how to address these issues both with the client (in advance of trial) and at the trial of the case which involved these issues.

And with that brief background stated, I have selected as my “2017 South Carolina Family Law Case Of The Year” the case of Ashburn v. Rogers and SCDSS/CSD, S.C.Ct.App., Opinion No. 5505, filed August 2, 2017.

In Ashburn v. Rogers Beaufort attorney, Sharnaisha Naki Richardson-Bax, utilized and applied Rule 60(b)(5), SCRCP in a manner which ultimately opened the proverbial door for our appellate courts to revisit – and offer some clarity to – the legal doctrines of res judicata and collateral estoppel. [The Ashburn decision turned on the inequitable notion that once a putative father made an admission of paternity of a child who, it was subsequently determined, was not his child, then under these legal theories of res judicata and collateral estoppel, it was too late to challenge that admission.]

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A Proposed Revision to Rule 25, SCRFC – Making Pretrial Discovery In The South Carolina Family Courts More “Lean, Mean…And Affordable (To The Clients)”

Do all of you attorneys who practice family law in South Carolina know what the current Rule 25, SCRFC, actually says…or have we all now simply become accustomed to announcing to the presiding family court judge at the initial temporary hearing that “(we attorneys) have agreed to ‘open discovery’, your Honor … we’ve agreed to use the Rules of Civil Procedure”.

The current Rule 25, SCRFC, says this:

“RULE 25
DISCOVERY

Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”

Unfortunately, practicing family law in the 21st century, and especially in the larger judicial circuits in South Carolina, is akin to playing some type of “video combat game”, and the notion that family law attorneys will “voluntarily” exchange, well, anything, much less “information and documents”, is practicing family law without a safety net (can you say “malpractice”?).  Consequently, the use of the pretrial discovery “sword-and-shield” provided by the Rules of Civil Procedure offers that layer of protection to those of you who might be more, well, litigious-minded (i.e., how many hours can you bill for drafting interrogatories or requests for production of documents or taking the deposition of the guardian ad litem….you know, those things which have a “meaningful” impact on your evaluation of your client’s case and your trial strategy?).

Ask yourself this question: in a calendar year of family court cases, in how many of those cases did the time spent in your “pretrial discovery process” generate a final financial result for your client which exceeded the client’s fees in paying for the time spent by your paralegal and/or you in pretrial discovery?  And in how many of those cases did the information produced in your using this same discovery process have a direct result in your client “winning” custody of the children?  If the answer to this question was “every time”, then stop reading this blog post, and have a good life.

In 2005 there was an effort among several family court judges to make significant revisions to Rule 25, SCRFC (which I will set forth below).  Those efforts were met by varying emotions, reactions, and comments from both the family court bench and bar ranging from benign silence, to scorn, to outright derision.  The “framers” of these revisions did NOT take it personally,..however, all subsequent efforts ceased.

And so, here they are once again, over a decade and, perhaps collectively, millions of dollars of your clients’ attorneys’ fees, later….read on at your own peril: Continue reading

(My Former) Pet Peeves Regarding Proposed Family Court Orders – Misguided, Misunderstood And Misconduct

Note: A number of years ago I had written an article which I was fortunate to have published in the SC Lawyer magazine centering on the significance of family court orders.  Of interest (at least to me) is that even now I have continued to “cross paths” with family court orders which might be problematic to the attorneys and their clients; and so I thought that some of you family court attorneys out there might have and take the time to read what I had described as a “cautionary tale”, hoping that you might find something helpful to you.  Good luck out there.  [Disclaimer: this article is longer than a more “typical” blog.]

” Twas brillig, and the slithy toves did gyre and gimble in the wabe; all mimsy were the borogroves, and the mome raths outgrabe.  Beware the Jabberwock, my son! The jaws that bite, the claws that catch! Beware the Jubjub bird, and shun the brumious Bandersnatch!”*

[*“Jabberwocky” (in part) from Through the Looking-Glass and What Alice Found There” (1872 by Lewis Carroll): “When Alice has finished reading the poem she gives her impressions:  ‘It seems very pretty’, she said when she had finished it, ‘but it’s rather hard to understand! (You see she didn’t like to confess, even to herself, that she couldn’t make it out at all.) ‘Somehow it seems to fill my head with ideas – only I don’t exactly know what they are!’ ]            

 Did you read this, and did you understand what it says…and what it means? And are you certain the opposing attorney and his or her client understood it?  Perfect.  You’ve just sent your family court judge your proposed order for the judge to sign.

When you sent the “proposed order” to the judge, what exactly did you want the order to accomplish, and what result did you seek?  Did you want to sound smart?  Did you want the order to sound or be purposely vague? Were you guessing at what the judge had ordered and instructed? Did you try to cleverly add several “findings” or “conclusions” or (please say no) slip in some additional relief for your client that the judge never ordered?

Answer this question for me: in order of priorities from the list below, what do you believe is most important to your family court judge after the conclusion of your case?

  • Making certain the proposed order accurately states the judge’s ruling?
  • Making certain the proposed order is grammatically correct, with the judge’s name spelled correctly?
  • Making certain the proposed order is sent to the judge as soon after the hearing or trial as possible?
  • Making certain that if you cited statutes or appellate court opinions in the proposed order, they were a correct statement of the law applicable to the judge’s ruling?
  • Making certain the proposed order, as to form, complied with the South Carolina Rules of Family Court or the South Carolina Rules of Civil Procedure?
  • All of the above?
  • Any of the above?

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Your Client’s Financial Declaration – The Most Important (And Often The Most Poorly Prepared) Document In Family Court Litigation

If you’ve practiced family law in South Carolina for any length of time and attended mandatory CLEs where one of the presenters was a South Carolina Court of Appeals judge, how many times have you heard that judge state (1) if the issue is related to equitable apportionment of the marital estate, then the family court judge’s order is required to have addressed in some form all of the “15 equitable apportionment factors” – or – (2) if the issue is related to alimony, then the family court judge’s order is required to have addressed in some form all of the “13 statutory alimony factors”?

And if you are the “prevailing attorney” and have been requested by your trial judge to prepare the proposed order, how would you explain to your client why the trial judge’s appealed order was “remanded” by an appellate court for (your?) failure to have expressly addressed these various, point-by-point “factors” in the order?

While remanding a case back to the family court can be costly to your client (if you’re continuing to charge a fee for this “scenario” which you may have created) and certainly time-consuming, a failure to have prepared and presented to your trial judge a client’s financial declaration which is accurate, truthful to the best knowledge of the client, thorough and thoroughly prepared (with annotations and footnotes, if necessary, or having an attached, detailed “marital assets addendum”) is a fatal error by the attorney, which can (and most often will) have a substantial effect on the financial issues decided by your trial judge.

And yet the financial declaration remains one of the most poorly prepared documents covering the entire spectrum of family court litigation.

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SEVERAL “SUGGESTIONS” TO THE YOUNG ATTORNEY FOR A LONG (AND HOPEFULLY SUCCESSFUL) LEGAL CAREER

Several months ago I had the pleasure and privilege of being asked to make a presentation to the Anderson County Young Lawyers Division, and I discussed with them the following “suggestions” and points which I had found useful over the years.  [I realize that the audience for this particular blog is the attorney practicing for less than 10 years, and that the more “seasoned” attorneys will “hit delete” very quickly…and I’m OK with that.]

1. Always, always, ALWAYS “deconstruct” your case by starting at the end of it and working back to the beginning.

2. At least once a week, go the South Carolina Judicial Department’s website – www.sccourts.org – and click on the “Video Portal” menu, and then go the “Supreme Court Archived Video” page and watch at least one case being argued before the Supreme Court (it will send chills up and down your spine, but you’ll learn more about the practice of law than any book or website or CLE can ever teach you).

3. Whether or not you think you’re smarter than an opposing attorney never matters…because it’s much more important that you develop a reputation among your peers as ALWAYS being prepared to “outwork” them on a case.

4. Your lifelong reputation among your peers is made within the first 10 years of your professional life.

5. It is (infinitely) more important for you to develop a reputation among your peers as being professionally considerate and ethical than for being a professional bully.

6. Always assume that the judge knows more about your case than you do … and, at the same time, always assume the judge knows nothing about your case.

7. If you practice family law, then memorize SCRFC, Rule 9(b) … and live by it.

8. Finally – always know that whenever judges meet anywhere – either at conferences or at lunch or in the hallways behind their courtrooms – they’re asking/talking/gossiping about YOU… and know that YOUR reputation and ability matter to them (more than you’ll ever know).

9. ALWAYS give your clients “the bad news – 100% of the time”. Since you can’t guarantee a “result” or “outcome” for your client, then it’s professionally dangerous on your part to “paint a rosy picture” about anything involved with your client’s case.

10. NEVER represent a family member or a friend in ANY contested case, in any court of law. And to insure that you remain professionally objective (so that you can do your job), never become your “client’s friend” during the litigation.

11. DRESS LIKE AN ATTORNEY. (For the men) never meet with your clients in your office – or at a mediation – wearing a golf shirt or casual clothes; (for the women) wear professional attire when meeting with your clients. I assure you that the “visual” of how you present yourself to your client is as important (to them) as the advice you’re giving them.

12. FINALLY – always remember that “this is the business we have chosen” , so NEVER take anything said to you by an opposing attorney personally…”it’s not personal Sonny, it’s strictly business” .

* * * * * * * *

The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 2 [The Attorneys’ Side – There Is A Difference Between ‘Wanting To’ And ‘Needing To’]

Let me say this up front: I candidly admit that I’m the embodiment of the “professional oxymoron” (most of my colleagues would prefer to just ignore the “oxy” part).  On the one hand I am, and have been for many years, very cynical regarding all things family court (i.e., you cannot be given a 15-minute block of time within which to decide the fate and immediate futures of spouses, parents, and children,  based on a maximum 8-page affidavit that is most always “borderline perjury”) … while on the other hand I remain the eternal optimist (the Pollyanna) who wants to believe that all party-litigants, when given the choice between doing the right thing by making meaningful compromises in order to achieve total control over their joint or collective futures [“Plan A”] versus these same parties placing these decisions (which will affect their lives and the lives of their children) into the hands of perfect strangers [“Plan B”], would choose “Plan A” 100% of the time.

And the eternal optimist in me would be wrong at least 50% of the time.

Having now been swimming in the mediators’ pool for approaching 7 years, I’m convinced there are unintended consequences resulting from the mandatory part of mediation in family court litigation in South Carolina.

I’ll try to explain if you’re interested in reading on.

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The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 1 [The Judges’ Side -Trying To “Outrun The Numbers” And The 365-Day Benchmark Rule]

For a number of years now, but most significantly from around 2004 to the present, the family court system in this State became a seemingly never-ending process of trying to “outrun the numbers”; that is, the now 58 active family court judges were (and continue to be) each tasked with hearing and deciding approximately 3,000+ cases per year, which included, but were not necessarily limited to, motion hearings, contempt hearings, juvenile hearings, DSS hearings, child support hearings, domestic abuse hearings, pro se filings, bench warrants, and contested final hearings…and that was just a judge’s standard “in-court” work, and not his/her “in camera” requirements.

With the implementation of the revised August 27, 2014 “365-day Benchmark Rule” it was the obvious intent of that South Carolina Supreme Court order to force litigants and attorneys (the “attorneys’ side”), not necessarily to have completed the litigation within a 365-day period of its commencement (i.e., filing) date but, to have requested a final hearing within 365 days of the commencement date.  However, the flip side of that “benchmark” (the “judges’ side”) was clearly intended to give another “arrow in the quiver” – albeit a draconian one – to the chief administrative family court judges in controlling/reducing the number of pending cases by providing for the absolute dismissal of any case which failed to comply with the 365-day timeline requirements imposed by this benchmark order.

Provided you not tell anyone, I’ll let you in on a secret:

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Was Ray v. Ray A Herald For “Open Discovery” In The Family Courts?

How many family law attorneys reading this blog believe that it’s now a form of legal malpractice not to request an “open discovery” order (i.e., permission to use the discovery rules set forth in the South Carolina Rules of Civil Procedure) at the earliest possible time and in virtually every family court case?  And in what percentage of those cases where you engaged in “open discovery” did you find it to be significantly cost-effective to your client (in other words, by the sole and specific use of pretrial discovery, you were able to achieve a final, financial result for your client which exceeded that client’s costs in attorney’s fees and litigation expenses directly related to the additional time spent in engaging in such pretrial discovery)?

Although there are most always “unintended consequences” flowing from virtually every legislative act and court rule affecting family court processes, “open discovery” in our family courts has clearly resulted in increased litigation costs, more motions to compel, delayed mediations, delayed final hearings, motions to continue for lack of the production of documents, more depositions….on and on.

As you are most probably aware, the long-standing “discovery rule” in our family courts is brief and to the point.  Rule 25, South Carolina Rules of Family Court states:

“Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”]

In the practice of present-day family law in South Carolina I’m not aware of a single family court judge or family law attorney who use and rely solely upon Rule 25 to limit or constrict  the framework within which to navigate a domestic relations case.  I am very much aware, however, that a decade ago there were significant efforts by several family court judges to overhaul and expand Rule 25, all of which were “shot down in flames” by both the bench and bar.

And then along came the case of Ray v. Ray, 647 S.E.2d 237, 374 S.C. 79 (S.C., 2007).

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