Rules are Rules for a Reason, Part I, Outline

Most Family Court judges and lawyers fail to understand and appreciate the benefits to themselves and others from following the rules and insisting that others follow the rules. Following the rules serves the best interest of the litigants, their children, their lawyers, the taxpayers, and the rule of law.

The South Carolina Rules of Civil Procedure govern all civil suits. “They shall be construed to secure the just, speedy, and inexpensive determination of every action.” Rule 1, SCRCP. If judges and lawyers follow this simple rule, everyone benefits. The parties obtain a just result. The process is speedy without the uncertainty and anguish of delay. Fees and costs for litigants are reduced, allowing them to afford lawyers. Judges and lawyers following the law create respect for the judiciary, the legal profession, and the rule of law. When lawyers and judges, through ignorance, apathy, disinterest, indifference, lack of concern, or laziness, fail to follow the rules, problems emerge. A few examples:

  • Affidavits exceeding page limits at temporary hearings make it less likely the judge will read the excessive pages. Excessive pages reduce the ability of opposing counsel to respond. This reduces the chance of a just determination. It also requires opposing counsel, once back at the office, to spend much more time reading and digesting the contents. This increases the client’s expense. Judges allowing excessive pages, even when there is no objection, increase everyone’s work and the litigant’s expense. Lawyers who fail to object then have the burden of review they deserve.
  • The most important document in any case involving a financial issue is the financial declaration required by Rule 20, SCRFC. Rule 20 provides a method to make financial issues simpler, easier, faster, and cheaper. The problem is South Carolina Court Administration provided an awful form no one understands. Judges could overcome some of this obstacle by insisting on accurate financial declarations prepared in good faith. Lawyers should prepare their financial declarations working with their clients, not giving the client a form to complete and submitting it with no review or guidance. A good financial declaration must accurately state the income, expenses, debts, and the marital and nonmarital property of the parties. Judges could overcome many problems with financial declarations by liberally and strictly applying Rule 20(d): “Reasonable sanctions may be imposed upon an attorney or party for willful noncompliance with this rule.” Judges could refuse to adjudicate an item of property, whether a $500,000 401(k) or a pizza cutter, not listed and described in the financial declaration of either party.
  • Discovery prevents trial by ambush or guessing games. CEL Prod., LLC v. Rozelle, 357 S.C. 125, 132, 591 S.E.2d 643, 646 (Ct. App. 2004). It promotes “the prompt and just disposition of litigation by educating the parties in advance of trial as to the real value of their claims and defenses.” 27 C.J.S. Discovery, § 8. If lawyers and judges follow these rules, they narrow the issues, reduce preparation and trial times, save the parties money, and make a just result more likely. When judges and lawyers ignore the rules, cases take longer, settlement is less likely, fees and costs increase, and the result is less likely to be just. Lawyers should tailor their discovery requests to the facts of the case rather than send broad, boilerplate requests poorly prepared by bad lawyers a generation ago and continually updated with equally bad additions. These junk forms rob the receiving lawyer of time and effort in responding, but then burden the sending lawyer with having to review hundreds of pages of unhelpful responses. From a judge’s perspective, efficient and effective discovery reduces the time the judge must listen to the squabbling of lawyers and litigants.
  • Pleadings define issues and issues define relevance. The rules of fact pleading in South Carolina are simple (Rule 7-16, SCRCP). Accurate pleadings complying with the rules lessen the need for discovery, prevent inadvertently trying unpled issues by consent, shorten trial time, and make the litigation more just, faster, and less expensive. Lawyers who do not plead properly and judges who do not enforce the rules of pleading do a disservice to the judge, the litigants, other lawyers, and themselves.
  • Rule 16(c), SCRCP, requires a uniform pretrial brief for pretrial conferences. Adherence to the rule requires familiarity of their cases by the lawyers, avoids irrelevance, and helps schedule the correct amount of time (too much or too little times creates waste, expense, and delay). It frequently resolves issues, avoiding the need for preparation and litigation of those issues for trial. Judges should insist on the uniform pretrial brief. Even if there were no Rule 16(c), lawyers and litigants would benefit if the lawyers wrote the pretrial brief only for their own benefit.
  • Opening arguments summarize what a party intends to prove and the relief the party seeks. Closing arguments summarize what the parties proved or failed to prove, and the relief to which the party is entitled. Opening arguments define the issues and alert the judge on what points a party hopes to make. Closing arguments tie the testimony and exhibits into a neat package, making it easier for the judge to correctly find the facts and apply the correct principles of law to reach a just result. Denying lawyers the right to opening and closing arguments is akin to trying to understand a motion picture after skipping the first fifteen minutes and last fifteen minutes. Lawyers who do not understand their case well enough to summarize their positions in five or ten minutes, should not have days and hours of precious court time to muddle through a trial.
  • Rule 26, SCRFC, requires judges to issue orders as soon as possible after trial, including findings of fact and conclusions of law supporting their decision. This is difficult for most lawyers and judges as they fail to understand the requirements of conclusions of law. The conclusions of law result from applying the law of the jurisdiction to the fact. The conclusions of law follow, “It is therefore ordered.” Clear, complete, and unambiguous findings of fact and conclusions of law avoid the misunderstandings that cause avoidable future contempt proceedings and appeals.
  • Judges, even the best judges, make mistakes. Rules 59 and 60, SCRCP, provide for the correction of those mistakes before there are alleged violations of the order or an appeal from the order. Motions to reconsider are the embodiment of the proverb, “A stitch in time saves nine.” Lawyers should insist upon either oral arguments on motions to reconsider rather than permitting the trial judge to decide the motions without argument or briefs. When judges dismiss motions to reconsider without thought and without writing clear orders addressing each point raised, they increase the chances of an appeal increasing the expense of both parties and risking embarrassment by a published opinion of the Court of Appeals or the Supreme Court (although I know only one judge who admitted concern about an appeal).

South Carolina Court Administration contributes to the problems with rules for forms that should not be forms. Examples are the Temporary Hearing Background Information and the Proposed Parenting Plan. The legislature, shares the blame for the Proposed Parenting Plan (§ 63-15-220). Both lawyers and judges are responsible for meeting the goals of Rule 1, SCRCP, regarding just, speedy, and inexpensive determinations, but only judges can mandate adherence to the rule. As the late Judge David N. Wilburn was fond of saying, “The bar is a reflection of the bench. If you have a strong bench, you will have a strong bar.”

The rules exist for a reason and most of the reasons benefit lawyers, judges, and litigants. As Pogo famously said, “We have met the enemy and he is us.”

My next nine posts will address the subjects of each of the above bullet points.