Category Archives: Court Rules

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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Practicing Family Law In The 21st Century – Series Post No. 5: Swimming In The Mediators’ Pool

On March 14, 2013, the South Carolina Supreme Court had ordered that, effective June 1, 2013, family court mediation would now become mandatory in 33 counties [South Carolina Supreme Court Court-Annexed Alternative Dispute (ADR) Rules]; however, I would bet the ranch that, mandatory or not, there is not a single attorney practicing family law in any one of the 46 counties in South Carolina who has yet to participate in a family court mediation.  Mediation has now become not only an integral part of the family law lexicon in South Carolina, but it also is very much at risk as being viewed and considered merely another stage in the arc of the family court litigation process.

“Mediation is the art of recovery”.  The objective of mediation is, and always should be, to return your clients’ futures to them by wresting control of those “futures” from the hands of strangers (i.e., judges, attorneys, guardians ad litem, mediators, etc.); mediation is, and always should be, intended to keep your clients as far away as possible from the vagaries and uncertainties of the “family courtroom experience”; mediation is, and always will be, intended to stop the creation (or formation) of your clients becoming lifelong enemies of one another, while allowing your clients to settle and resolve their conflicts on their terms, not yours, and by doing so, enable them to recover from the exquisite, indescribable pain of divorce.

An excellent Upstate family law attorney and close friend told me she was delighted to know that, even in my semi-retirement, I would still remain part of the “mediators’ pool”.  I know she meant that as a compliment, and I took it as such.  But the larger point is the most obvious one …

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Practicing Family Law in the 21st Century – Series Post No. 1: South Carolina’s “365-Day Family Court Benchmark” – Tick, Tick, Tick

I would like to begin a series of posts which focus on how we might become better prepared to effectively practice family law in South Carolina in the 21st century (or at least through the rest of this decade), and I’m interested in focusing on practical ways in which you can use the existing “patchwork quilt” of family law statutes, appellate court opinions, court rules, and administrative orders to increase your chances of achieving a successful result for your clients, while also protecting your attorney-client relationship.

I’d like to begin by asserting there are (at least) three irrefutable “truths” associated with the practice of family law in South Carolina:

  • Policy has always been driven by the “politics of the moment” (which means that, especially in the area of family law and because our family courts are “courts of limited jurisdiction”, the enactment or creation of statutory policy is more often “reactive” than “contemplative”).
  • In the practice of family law, there are three distinct “tracks” in play in every domestic relations action filed in every county throughout the State: the “legal track”, the “track of the practical result”, and the “track of unintended consequences”.  And with rare exceptions (and there are exceptions), every new statute, family court rule, and administrative order always perfectly addresses – at the moment of its effective date – the “legal track” (e.g., the intended legal result of that specific act or action at that specific moment is “perfect”); however, rarely, if ever, do the “legal track”, the “track of the practical result” and the “track of unintended consequences” meld effectively together for any extended period of time.
  • A family law attorney can never control that single factor which always drives your case forward – the emotions or the emotional state of your client throughout the litigation.

Using that as our backdrop, let’s begin with an analysis of the “365-day Family Court Benchmark” which became effective on August 27, 2014 (with emphasis added):

  • “… all domestics relations and juvenile cases … shall be disposed of within 365 days of filing … “.
  • “Once a case older than 365 days has been scheduled for a final hearing, only the Chief Administrative Judge for the circuit or county may continue it, even if the request for continuance is received by the assigned judge during the week of trial.”
  • “In the event no request for a final hearing is received by the Clerk of Court within (365 days from the date of filing) and there is no order by the Chief Administrative Judge extending the case, the Clerk of Court shall prepare an Order of Dismissal without prejudice and provide the order and file for review by the Chief Administrative Judge. If it is determined that dismissal is appropriate, then the Chief Administrative Judge shall sign the Order of Dismissal.  If a case is continued for any reason past 365 days (from the date of filing), the Order of Continuance must include a time and date for rescheduling the case.“
  • ” … in the event an action is dismissed without prejudice pursuant to this Administrative Order, any existing orders in the affected case file which were not final (note: meaning every pendente lite order) will be considered null and void and no longer subject to enforcement by this court (including, but not limited to, the enforcement and collection of child support and/or alimony), with any support arrearages being thereby dismissed.“

This 2014 Administrative Order superseded the May 9, 2006 “Family Court Benchmark” which simply stated:  ” … all domestic relations and juvenile cases in South Carolina … shall be disposed of within 365 days of their filing.  … within each county, the Chief Administrative Judge for Family Court shall direct and oversee the monitoring of all cases which are older than 365 days, and for which no final hearing has been requested.  The Clerk of Court for each county shall provide all necessary reports and information as requested by the Chief Administrative Judge to assist in the timely disposition of cases as set by this Order.”

If the intent of the 2014 Family Court Benchmark is to place pressures on the family law attorneys to bring about a final resolution of litigation within this finite period of time, and if it is believed that a full calendar year is more than enough time to accomplish this purpose, then the “legal effect” of this Administrative Order is perfect.  The clock starts “ticking” from the moment you file your complaint in your Clerk of Court’s office, and you have 365 days with no exceptions, reasons, or excuses to file your request for your final hearing in your client’s case; and, even if your Chief Administrative Judge gives you a “get out of jail free” pass, and extends your case “for any reason”, that order of continuance is required to “include a time and date rescheduling the case” (for a final hearing).

The “practical effects” and the “effects of unintended consequences” of this new Benchmark are more far-reaching both for you and certainly for your clients (I’ll give you just four examples, obviously assuming that you would have not yet filed your request for a final hearing):

  • If you’re now going to engage in “open discovery”, then you’ll need to fully complete your discovery well prior to your trial date (forget about filing “motions to compel” at the last minute because that motion may not be scheduled for weeks or longer, and the clock keeps ticking).
  • If you’ve “won too big at your temporary hearing”, and your client has a terrific pendente lite order in effect – e.g., sole custody, substantial child support, alimony, the other spouse is saddled with paying all the monthly expenses, etc. – you can no longer “slow play” your case beyond the 365-day deadline, because ” … all existing orders which were not final will be considered null and void …” [also see: Terry v. Terry, 400 S.C. 453, 734 S.Ed2d 646 (2012) ].  Conversely, be careful about the opposing attorney who has “lost too big at the temporary hearing”, because as you approach the 365-day deadline, that attorney (who wants all of those pendente lite orders to go away) is going to do everything possible to lull you into delaying your filing a request for a final hearing.
  • In a mandatory mediation county, in the event of an impasse in your mediation, your mediators are now required, at the time they file their mediation report(s) with the clerk’s office, to indicate the amount of “trial time” necessary to complete your case.  Consequently, you may have no choice but to accelerate the date to mediate your case even though the case and the parties are “not ready” for mediation.  Furthermore, you’ll most probably have to guess as to the amount of time you’ll need to request for your final hearing.  And the clock keeps ticking.
  • As you approach your 365-day deadline without having requested your final hearing, you’re going to have to be careful about filing subsequent motions for temporary relief requesting a modification of an existing temporary order, because you may not have enough time to do so.

Recommendations and suggestions:

1.  In those counties where you routinely practice family law and file your cases, find out from that county’s clerk of court whether the clerk can implement an emailed “early warning alert” once a case hits, for example, 270 days from its file date.  In various counties the clerks have provided this service in the past, and I can find nothing in the new Family Court Benchmark which prohibits that activity. This could also apply to those cases filed by self-represented litigants (the clerks can, or most already do, require an email address from these litigants).

2.  To protect yourself professionally, attach a copy of this Administrative Order to your detailed attorney-client retainer agreement, and make certain that your client initials this attachment.  Put a provision in your retainer agreement which acknowledges (a) that you have informed your client of the critical importance of working within this 365-day timeline, and the legal consequences in the event the client’s case is dismissed pursuant to this Administrative Order, (b) that your client agrees to fully and timely cooperate with all of your requests for information, documents, and materials, and (c) that your client will at all times keep you informed as to his/her residence address, mailing address, current email address and current cellphone or telephone number.

3.  If you have not already been using some type of computer-based or internet-based “case tracking” system, then you might want to create one within your office, where you will immediately enter the filing (commencement) date of every new family court case, with a “notification” automatically sent you on the 270th day of filing.

4.  This Administrative Order expressly states that “[I]f it is determined that dismissal is appropriate … “.  Perhaps your county or circuit has a family court liaison committee which could meet concurrently with your current Chief Administrative Judge and your clerk of court in an effort to put together some type of protocol that will provide clarity to your family court bar as to how, and under what circumstances, your Chief Administrative Judge would “determine that dismissal (or a continuance) is appropriate”.

5.  As strange as this sounds – and as counter-intuitive as this may seem to a family law attorney – as soon as you’ve completed your mediation (you can’t wait until the bitter end to mediate your case), or even as soon as you’ve completed your first temporary hearing, send in your request for a final hearing.

6.  And, in tandem with No. 5, if you practice law in a county which has a court coordinator who then sends you an email to inform you that your filed final hearing request is premature because the case has not yet been mediated, then at the very least you’ll have written confirmation that you made this filing (if that sounds like a stretch, so what…and it may show just enough due diligence on your part to convince your Chief Administrative Judge that you made a good faith effort to comply with this Administrative Order).

In the months ahead, as this 365-Day Family Court Benchmark is put into practice, then I’ll want to revisit it and discuss how this particular Administrative Order has affected your family law practice, if at all.  However, I’m going to stop at this point because this seems to be a good stopping point [and I also want you to know that future posts in this series will be much more succinct and more tightly focused on one particular family law issue].

 

Do We Modify Or Just Ignore The South Carolina Family Court’s Discovery Rule?

I, for one, always found comfort in the simplicity of this State’s long-standing “discovery rule” for the Family Courts – Rule 25, SCRFC.

“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.”

How times have changed.

In the current 21st century practice of family law in South Carolina no attorney would dare rely upon Rule 25 as the mechanism for engaging in pretrial discovery, and I’m not aware of a single sitting family court judge who strictly enforces the use of this Rule. Rather, due to (1) the very nature of litigation and advocacy in general, (2) the often high stakes involved in marital litigation (whether the issues are child-related or the division of marital assets), and (3) attorneys suing attorneys in legal malpractice actions, the common practice is for the attorney to stand up in family court at a temporary (pendente lite) hearing and announce, “Your Honor, all of the issues are presently contested, except that both attorneys stipulate we will be allowed to use the discovery rules of the South Carolina Rules of Civil Procedure.  By the Court: That request is granted, now please be seated so I can review the parties’ affidavits”.

Rule 25, SCRFC? … long forgotten.

The “Pandora’s Box” of the Family Court – referred to as “pretrial discovery” – is opened, and along with it are your clients’ bank accounts, as the litigation-related costs of discovery move ahead virtually unchecked.

In 2005, Family Court Judge Jerry D. (Jay) Vinson, Jr., and I proposed the following Rule 25 amendments to the South Carolina Conference of Family Court Judges.  Our proposal was defeated unanimously by a voice vote…well, not quite unanimously, Jay and I voted “yes”.

….read more

In the modern-day practice of family law in South Carolina do we modify Rule 25 in a meaningful, useful, and cost-effective way, or do we just ignore it?  I, for one, believe that decision was made a long time ago.