Category Archives: Attorney-Client Relationship

Lessons For The Young Attorney – From An Old Attorney: Lesson No. 1

My intent is to take my time and really try to put some thought and effort into writing a series intended to focus on an “audience of just one” – on some young attorney out there who has practiced law for less than 5 years and who, even now, is wondering if he or she made the right career decision by choosing law school over, well, any other post-college career path.  And I’m driven to do this because, after now practicing law for almost 44 years, there have been so many times in my professional life where I have wondered if I made the right decision….and because the older one gets the more melancholy one becomes, I realize that my “professional clock” is winding down, and that the only “footprint” I can possibly leave is to share my wisdom (and there is very little wisdom) and my experience (but there is a great deal of experience, both good and bad) with the youngest of my colleagues.

I plan to include some anecdotal stories from my earliest days of practicing law up to the present time – but I promise to try and not bore you too much with these tales (and I certainly don’t intend on making this a “diary”, because then I would bore myself); and I will offer you only the ones which I hope will help you avoid the pitfalls and problems and agonies I experienced going through them (and maybe you would have even shared some of these exact same “experiences” with me).  And I will then give you a number of suggestions and lessons and “maxims” and ideas which I hope will keep you centered and moving forward in this most difficult of professions.

Let’s start.

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Noojin v. Noojin – The 2016 South Carolina Family Law Case Of The Year

If you practice family law in South Carolina, then you may agree that it is a rare occasion when our appellate courts publish an opinion during any given calendar year which changes the trajectory of how we practice family law.  More often than not, a published opinion tends to validate our collective understanding of how we are to micromanage various aspects of the clients’ cases moving forward (such as, the Wannamaker v. Wannamaker, 395 S.C. 592, 719 S.E.2d 261 (Ct.App.2011) case, which recognized the family court judge’s discretion in valuing a spouse’s retirement account based on that party’s actual contributions into the account rather than valuing it based on a “present value” computation of a forensic expert; or perhaps the Roof v. Steele, 413 S.C. 543, 776 S.E.2d 392 (Ct.App.2015) or Woods v. Woods, S.C.Ct.App. Opinion No. 5430, filed July 27, 2016 cases, which (once again) discussed the various factors applicable to an alimony modification case; or perhaps the Buist v. Buist, 410 S.C. 569, 766 S.E.2d 381 (2014) case, which addressed the factors in awarding – or challenging the award of – attorney’s fees).

However, there are also those occasions when our appellate courts publish opinions which were impactful enough to have forced us to rethink, refocus, and reprocess (1) the way in which we advised clients in the preparation of their family court case, (2) the way in which we prepared the evidence and testimony for the trial of those cases, and (3) the way in which we actually conducted ourselves inside the courtroom at motion hearings or during trial.  And the notion that there is, most probably, a trajectory-changing “case of the year”  lead me down a path of reviewing the various family law opinions published by our South Carolina Supreme Court and South Carolina Court of Appeals from 2011 through 2016, and I came up with my own personal “list of favorites” below (you have the absolute right to disagree with my selections…and choose your own).

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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” .

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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 Three Horsemen Of The Family Court – Animosity, Mistrust and Control

If you practice family law in South Carolina, then you’ve been introduced to these three specters seated between your client and you inside a family courtroom or at the mediator’s table. They are your three worst enemies in a courtroom or at your clients’ mediation, and you’ll never beat them…unless, that is, you’re clever enough and insightful enough to realize you were the one who invited them to this party…or you did nothing to prevent their attending.

They will stand in the way of your conversations with your clients. They will prevent all manner of rational and reasonable settlement discussions. Like a poltergeist, they will whisper controversy in your client’s ear and interfere with the presentation of your case. They will cause you to be second-guessed by everyone inside the courtroom – the judge, the other attorney(s), your own client. You will become victimized by them, vilified by them, cursed by them. You may even lose sleep over them and, perhaps worse, you will certainly lose money (not make money) because of them.

And this will happen in every divorce case you accept and in every divorce case you will mediate or litigate.

Let me introduce you to The Three Horsemen of The Family Court.

Seated to your right is Animosity – Horseman Number One. I’m sure the two of you have met…many times. Animosity drove your client to your office. It introduced your client to you, and, in fact, during your initial interview, Animosity was the voice of your client. Animosity answered all of your questions, and when, in responding to your client’s/Animosity’s questions, you said all the right things (necessary to fuel that emotion), Animosity convinced your client to pay you a retainer fee. It didn’t matter to you at the time whether you would be clever enough in the end to protect your client’s financial future and his/her interest in obtaining child-related relief.

The problem is this: Animosity doesn’t give a damn about those things. Continue reading →

The Imperfection Of The Family Court

I recently mediated a very difficult case in which the primary issues centered on the parties’ relationship with one another and the impact of that relationship on their very young children. As most often occurs in these always stressful mediations, the back-and-forth meetings and discussions with these parents resulted in often grudging concessions and inch-by-inch forward progress.

Finally, in trying to settle a visitation date, time and location exchange, we hit the “proverbial wall”, at which time one the parties’ attorneys (both parties’ attorneys in this case were excellent, and in that regard, their clients were fortunate) could no longer restrain himself as he continued to argue to me that the other parent’s position was “not logical…there is no logic in their position!”. I listened patiently and when the attorney was finished, I asked him this question:

Can you tell me when “logic” was ever involved in a family court case?

As I have repeated many times over the years, and certainly many times during my family law mediation practice, every case inside a family courtroom is driven by emotions – animosity, mistrust and issues of control run rampant during mediation sessions and certainly outside and inside the courtroom. I’m referring, of course, not just to the litigants, but also to their attorneys. Consequently, I have yet to encounter a single mediation conference where “logic” had anything to do with the settlement or impasse reached in the case.

To the family law attorney: please do your clients a tremendous favor and tell them that the family courtroom is the most imperfect place for decision-making on the planet.  And let me add the following to the mix:

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A “Guest Blog Post” From Family Law Attorney Nancy Jo Thomason – “The Ease (And Sense Of Security) In Filing A Family Court Transcript Of Judgment”

My good friend, and mentor, Barry Knobel, recently wrote a blog about protecting your family court client’s potential assets in a divorce case by filing a lis pendens at the commencement of the action, and that blog concluded with a reference to filing a transcript of judgment as “additional protection”.  The blog could not have been more timely.

Recently, I had my first opportunity in my 21-year family law career where I found it necessary to file a family court-authorized transcript of judgment, and I asked Barry if he would be willing to let me share with you the very simple steps necessary to perfect such a lien.  Since I don’t have my own blog (and rarely have anything new or useful to offer), Barry said he would welcome my being his “guest blogger” so that I could share my experience with you.

There are two sections found in Title 20 (domestic relations) of the South Carolina Code of Laws which govern the filing and enrolling of a transcript of judgment with the clerk of court’s office – South Carolina Code Ann. §20-3-670 and §20-3-680. The first section gives you the authority to record the transcript of judgment; the second actually gives you the form to use and file. Very easy!

In my case, my client (the wife) is to receive certain payments when some land which was solely in the former husband’s name is sold. Since a title search might “miss” the order entered by the family court, it was essential to file, record, and index a transcript of judgment which would better protect her financial interest in this property.

The husband’s attorney and I agreed to include a “transcript of judgment” provision in the parties’ divorce decree, and I then sent the judge both the decree and the transcript of judgment. Continue reading →

For The South Carolina Family Law Attorney – “Scenarios” To Read At Your Own Peril: Scenario No. 2

Last week I posted the first “scenario” in a blog series which I’ve entitled “Scenarios” To (Insure) You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril; and rather than my restating the “history” behind these “scenarios”, I would simply request that you read that last post … and I’ll press on.

Scenario No. 2

You represent the husband in a contentious divorce action resulting from an even more contentious, long-term marriage.  The litigation has been pending for some time now, and finally after engaging in several previous settlement conferences and a protracted mediation, progress has finally been made in the parties reaching a complete agreement.

Your client is an engineer who has been employed for a number of years by a well-known and hugely successful engineering firm, and he’s convinced that he’ll become a partner in this firm sometime in the future.  The husband has been the sole source of income for the family throughout this lengthy marriage.  The wife has been a homemaker.  The children are all now adults and living away from home. The wife’s attorney and you have been diligently working on drafting a detailed marital settlement agreement covering a variety of marital issues, including the division of extensive financial holdings acquired by the husband over the years of their marriage.

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“Scenarios” To (Almost) Insure You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril) – Scenario No. 1

On October 30, 2008, I made an ethics presentation to our Anderson, South Carolina Inn of Court during which I presented 18 different “scenarios” of varying fact patterns regarding real-world issues encountered in family court litigation.  What remains fascinating to me, however, is that in the 6+ years following that presentation, I still continue to see (and to encounter in my mediations) those identical problems and pitfalls.  So I thought it might be interesting to share these “scenarios” with a wider range of family law attorneys to see whether and how you address them in your family law practices.  At the very least, I hope that some of you will find this informative (and maybe, at times, even helpful).  Here’s the first one:

Scenario No. 1:

The husband and wife are both represented by attorneys in their divorce action. You represent the wife. The parties have reached an agreement which is approved by the family court judge at their final, uncontested hearing. The judge signs the divorce decree which provides for a merger of the agreement into the decree.

The agreement provides, in part, that the parties will sell “by owner” a 20-acre tract of land and divide the net sales proceeds equally. This tract is titled solely in the husband’s name.  Aside from this “marital asset”, which is the most valuable one to the parties, the other marital assets were several bank accounts and the furnishings, all of which have already been divided between the parties prior to their final divorce hearing.

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