Category Archives: Professional Responsibilities

Resolutions For The Young Family Law Attorney – My Top Twelve List Of “Always” and “Nevers”

As much as I want to try and fight the notion that I’m in the twilight of my legal career, I have this often melancholy sense that the days when I felt I had a professional relevance – when my professional words and actions might have “mattered” to my family law colleagues – are now finite. And I now find myself struggling to warn and forewarn my young family law attorneys to perhaps pay closer attention when any of your more “seasoned” (as in, older and greyer) colleagues share suggestions, ideas, lessons, and thoughts which may extend and add to a more successful and impactful legal career for you.

I have shared these “always” and “nevers” over the years, but because we family law attorneys have an amazing tendency to live by the “reverse mantra” that “there is always a great lesson to be learned by the second, third, and fourth kick of a mule”, I wanted to re-send them to my young colleagues, but this time in the form of some “resolutions”. And here they are:

1. ALWAYS “deconstruct” your case by starting at the end of it and working back to the beginning. It is critical in both your case planning and especially in your case presentation at trial that you have a crystal clear understanding of the “end results” you’re wanting to achieve for your client.

2. At least monthly, ALWAYS 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 the “Court of Appeals Video” page and watch at least one case being argued before the Supreme Court and Court of Appeals (simply listening to the Justices and judges question and probe the arguments being made by the appellate attorneys 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. ALWAYS remember that it truly doesn’t matter as to whether or not you “think” you’re smarter than your opposing attorney…because it is much more important for you to develop your reputation among your peers that you will ALWAYS be prepared to “outwork and out prepare” them on a case.

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

5. ALWAYS know that it is (infinitely) more important for you to develop your reputation among your peers as being professionally considerate and ethical than for being a professional bully (stated otherwise, our “civility oath” matters in this State).

6. ALWAYS assume that your family court 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 South Carolina Rules of Family Court, Rule 9(b) … and NEVER forget it.

8. ALWAYS know that whenever your family court 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 matters 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, but especially in a family court.  And to insure that you remain professionally objective (so that you can do your job effectively), NEVER become your “client’s friend” during the litigation.

11. ALWAYS remember that your professional appearance matters.  (For the men) never meet with your clients in your office wearing a golf shirt or casual clothes; (for the women) wear professional attire when meeting with your client. ALWAYS remember that the “visual” of how you present yourself to your client is as important to them as the advice you’re giving them.

12. And ALWAYS remind yourself – daily, if possible – that we are all professionals in this very difficult and demanding profession that we have chosen, and where the effort and the excellence in practicing our craft are monumentally impactful on the lives of others.



“Early Neutral Evaluation” For The South Carolina Family Court Bench and Family Court Attorneys In The Wake Of Kosciusko v. Parham

For the South Carolina family court bench and family court bar, the South Carolina Court of Appeals in its published opinion in the case of Kosciusko v. Parham, S.C.Ct.App., Opinion No. 5690, filed November 6, 2019, (1) immediately compelled the cancellation of every scheduled binding arbitration where the issues for resolution were “child-related” [e.g., the school to be attended by the child; or the extracurricular activities in which a child could participate; etc.]; (2) immediately sent the family law attorney rushing to pull a file where a client’s court-approved settlement agreement had included a provision “compelling binding arbitration” in the event of the parents’ impasse on any child-related issue; (3) gave immediate pause to any sitting family court judge who, at some point during the trial of a case and while on the record, might have announced to the party-litigants that “I need to hear from the guardian ad litem who I consider to be the eyes and ears of the court”; and (4) required family law attorneys to determine what ADR “alternatives” now remained available to the attorney in the resolution of complex child-related issues given, perhaps, a client’s limited financial resources to wage seemingly unending litigation between warring parents.

Kosciusko v. Parham concluded by stating the following: “Based on the foregoing, we hold that the family court does not have subject-matter jurisdiction to sanction or approve binding arbitration of children’s issues. …”.

Full stop.

Although there is so much to “unpack” within Kosciusko, I found the following excerpts to be the beating heart of this opinion:

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The Quest For Precision In The Practice Of Family Law – When Words Matter

I love words.

I absolutely love to find where and when the writer’s economic use of words becomes both effective and impactful [as just one such example, one of the first associate justices of the United States Supreme Court, Justice Joseph Story (1811 – 1845), wrote this: “In the law, the power of clear statement is everything”].

I love how words such as “binary” or “concurrent” or “paradox” or “compel” or “expressly” or “constellation” or “default position” or “pertinent” or “nuanced” – along with many, many other such words – just sound so right to me, and fit so seamlessly into sentences and paragraphs and documents and agreements.  I love to have read a great book and find some turn of a phrase from the author – perhaps even a single sentence – which became memorable to me.  And (maybe much to your chagrin) I also love footnotes…I love the way a footnote can be effectively used to explain a point, but not to “get in the way” of the writer’s intent in making that particular point.

I love the constant struggle (and for family law attorneys it most definitely is a struggle) – that quest – to translate a negotiation or a discussion or “spoken-out-loud” streams of thought into a clarity of words, phrases, and paragraphs so that, no matter the reader, everyone immediately knows not only the intent of the use of those words, but also the precise point being made by them.

Last year an excellent and skilled young attorney asked that I review a final marital settlement agreement which some years earlier had been approved by the family court judge and entered of record (note here: the “requesting attorney” was not the one who had drafted this settlement agreement); and I was struck by this provision which had become court-approved so as to govern the parties’ conduct under the court’s contempt powers:

“Children’s Extracurricular Expenses:  The parties acknowledge that the children have historically been involved in various sports and other extracurricular activities, lessons, church activities, and overnight summer camps, and that they wish to have the children continue with such activities.  The parties shall pay the expenses related to all agreed upon extracurricular activities, sports, lessons, and camps, as follows: 90% Husband and 10% Wife.” Continue reading

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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How Do You Successfully Mediate Feelings – And Why Is “Validation” So Critical (And So Frequently Overlooked And Misunderstood By The Mediator)?

[Note to the reader: In 2010 I wrote much of what I’ve put into this particular post below, with the rather odd exception of my having failed to include “validation” as one of those “feelings” I was so often encountering as a family court mediator (and, most recently, as an early neutral evaluator).  However, over the years it has most often been validation which I have allowed to elude me, and which has created a significant hurdle in helping the parties reach a successful resolution of their litigation.  And so I thought it might be timely to revisit this particular subject, just to see if (and how) I had allowed my family court mediation practice to morph into its most current form.  Let me quickly add that for the many of us who have attended “mediation school” while becoming a certified family court mediator, our instructors use the word and the term, validation”, within the first 2 hours of an intensive 40-hour course.  So let’s just start there.]

“Validation” is defined as “the recognition or affirmation that a person or their feelings or opinions are valid or worthwhile”.  And …

“Mediation is the art of recovery.” (From “Family Court Mediation Training Program”)

Having practiced family law for over 44 years, I am well now into my 9th year as a fulltime family court mediator and an early neutral evaluator, and I have determined that, on many levels, alternative dispute resolution (either as a mediator or an early neutral evaluator) has presented me with my greatest professional challenge…and here’s why:

I retired from the South Carolina family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator.  I just knew I could settle every case by sheer force of will and experience.  Wrong…and big mistake.

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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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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 4 (Practicing Family Law In “Never-Never Land”)

“Never-never land

Meaning:  A utopian dreamland.

Origin:   The term ‘never-never land’ is now usually applied with a sense of dismissiveness – used when someone is dreaming unrealistically about a utopian future.”  …

Welcome back, my young colleague … but it’s been a while since I visited with you, and that’s been entirely my fault.  You see, I’ve been spending a great deal of time recently in “never-never land”, and, if you don’t mind, I’d like to share with you what I learned during my time there (I’ve often traveled there over my professional career, and I’ve learned many of these lessons the hard way).

Let’s start:

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 3 (Learning The Craft Of Practicing Law – From The Sledgehammer To The Scalpel)

Welcome back, my young colleague, and first answer this: when you stood inside the South Carolina Supreme Court on the day you were sworn in as an attorney, and when you then signed the formal “enrollment of attorneys” and received your certificate formally admitting you into the profession, did you read the certificate while still inside the Supreme Court building?  Have you ever read it?

Here’s how mine begins: “IT APPEARING unto us, That Barry Wayne Knobel has complied with the requirements of the Law of this State in respect to the admission of persons to practice as Attorneys in the Courts of this State, and is duly qualified to act as such….”

That was on November 3, 1973.  My certificate of admission was signed by the Chief Justice and the associate justices (all of whom have long since passed away); and I vividly remember that on that day I was wearing a black, pin-striped suit, white shirt and black tie with white polka-dots…and spit-shined shoes.  On that auspicious (at least for me) day I absolutely looked the part….but on that same day, and for very, very many days which followed that day, I most certainly did NOT have a clue as to where my legal “roads not taken” would eventually take me; and I didn’t know then whether my choice to become an attorney would become my lifelong “profession”, or my “career”, or my “craft”….or simply the way in which to make enough money to pay my monthly bills, including repaying my law school loans.

And on November 3, 1973, how could the Justices of the South Carolina Supreme Court, along with any of the other thousands of members of the South Carolina Bar Association possibly know that I was “duly qualified” to practice law along side them or in front of them, when I wasn’t at all sure that I was duly qualified (if truth be told – and as I write this – I’m still not so sure)?

Consequently, as we all did then and as brand new attorneys do now, I began practicing law with a sledgehammer.  Just slamming my way forward and throwing everything at the “most immediate problem at hand”.  I stretched out the Socratic Method like a huge rubber band – arguing my “legal points” based on what little tidbits I could glean from law books while blending those tidbits into my clients’ “versions of the truth”, all the while trying to sound and act like I knew what I was talking about…but while facing much more seasoned and polished attorneys who were constantly “schooling me” on the finer (and most often the correct) points of law and facts involved in the case.  And I had my share of those “seasoned attorneys’ tire tracks” running up and down my black pin-striped suit.

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 2 (Is This Really How You’re Supposed To Practice Law?)

To my young colleague: thank you for dropping back in for “Lesson No. 2″….hop in and take a ride with me, and I’ll tell you this brief story, and all you have to do is just listen quietly.

After graduating from law school I knew that I wanted to return to my hometown (Anderson) to begin practicing law because after 7 straight years of living there, Columbia was too hot for me in the summer, too cold in the winter, and already overcrowded with attorneys, and I knew that I could be a great “fit” for the larger, mainline law firms in Anderson.  I was wrong about that.

I first interviewed with the largest law firm in Anderson at the time (all of them were excellent attorneys, and brilliant, who universally enjoyed great area, even statewide, reputations).  All the partners gathered around their conference room table to interview me, and the most senior partner began by asking me two questions: what areas of the law practice were the most interesting to me, and what was my graduating grade point average from law school?  WHAT!!!!  And so with that, after I answered I believed I could be a “pretty good” TRIAL attorney and gave them my GPA (I’ll never reveal it here, so let’s just say it was high enough to let me graduate from law school), the interview was over!  Record time. They thanked me for meeting with them, and they were gracious enough to let one of the partners “show me around” their law library and walk me to my car.

Four months, 2 more “live” interviews, and around 8 “cold calls” to Anderson attorneys later, in December, 1973, I was hired as an associate by a two-man partnership at an annual salary of $9,000.  Both attorneys were excellent (the “senior partner” was the Circuit Solicitor at the time, and the “junior partner” was also a terrific trial attorney, but they had completely different and compelling personalities and work ethic.  And in the time I was with them, they each became my mentors and my tor-mentors.  But to their everlasting credit, they instilled in me the early awakenings of what would become my love for the practice of law…and here’s why:

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