Practing Family Law In The 21st Century – Series Post No. 2: “In The Law The Power Of Clear Statement Is Everything”

A number of years ago I wrote an article for a legal publication, and in that article I made the following statement:

“First of all, there is one universal maxim in the practice of family law: The judges’ orders are the beating heart of every case…no other documents in the case file are more important. You can have a “banker’s box” full of pre-trial motions, discovery, and work product, and you can try a case for days on end, but at the conclusion of that case (and every hearing involved in that case) nothing happens until your family court judge both signs and enters his or her order in the clerk’s office.”

If at the conclusion of your family court hearing (either at a pendente lite stage or after a multi-day trial) you are the “prevailing attorney” and you’ve been instructed by your judge to draft his or her “proposed order”, the following should be your mindset throughout your “crafting” process:

First, think like your trial judge (“…be the ball” [from “Caddyshack”]).  The order belongs to the judge; it will ultimately (you hope) be signed by the judge; and your judge wants his or her order to be appeal-proof – and so do you.

Second, never delegate this process to your paralegal or administrative assistant because they are “better at it” or “that’s what you pay them to do”.  Can you imagine how infuriating it would be for an appellate court to remand (bad enough) or reverse (a nightmarish result) your judge’s order because of the order’s failure to specifically include and address each of the statutory alimony or equitable apportionment factors or the case law factors as to an award of attorney’s fees.  And perhaps your judge later became aware that you didn’t prepare the order.  The good news-bad news for you, I suppose, is that you’d never be instructed by that judge to prepare another order, not to mention that you have also now delayed your client’s long-sought relief from the court. [Also see: Rule 5.3 of the Rules of Professional Conduct.]

Third, one of the first Associate Justices of the United States Supreme Court (and, historically, one of the Court’s greatest justices), Joseph Story, wrote that “(I)n the law the power of clear statement is everything”.  I would urge that in crafting a proposed order for the judge, less is better, and clarity is everything.  Not only do you want your order signed as you’ve drawn it, but you want to make absolutely certain (if you’re forced to file a future contempt action) that nothing in this order is vague (or subject to various interpretations by the opposing party) regarding any term, provision or condition of the judge’s ruling or decision.

Finally, never, never, NEVER delay getting this proposed order, first to the opposing attorney pursuant to Rule 5(b)(3), SCRCP, and then to your judge for his or her signature (see the “first point”, above).  As just one example of a potential act of malpractice, assume you were at a temporary hearing on a Monday and the judge awarded your client weekly child support, payable directly to your client, and beginning on the “first Friday after the entry date of the court’s order”; assume the judge is from another circuit, and that you’ve delayed getting the order prepared and then mailed to that judge’s office, and by the time the order is signed and mailed back to your clerk’s office, seven weeks have elapsed.  Your client’s first child support payment begins on the following Friday, and your delay in getting the order signed has most probably cost your client hundreds of dollar of tax-free income in child support.  You don’t want to do that.

Be the ball.