Many lawyers refer to any documents filed with the clerk of court as a pleading. Pleadings include the complaint, the answer, the reply to a counterclaim, and three third-party pleadings that rarely apply to family court. Rule 7(a), SCRCP. Those who do not understand what a pleading is should not attempt to prepare one.
Pleadings define the issues and determine relevance. Unlike the Federal Rules of Civil Procedure and the rules of many other states, South Carolina requires fact pleading rather than notice pleading. The requirements stated simply in Rule 8(a), SCRCP are:
(1) a short and plain statement of the grounds including facts and statutes upon which the court’s jurisdiction depends, unless the court already has jurisdiction to support it, (2) a short and plain statement of the facts showing that the pleader is entitled to relief, and (3) a prayer or demand for judgment for the relief to which he deems himself entitled.
Pleaders make two mistakes, pleading too little or pleading too much. I have made both. As a young lawyer, I prepared a complaint of three or four legal pages in a simple conversion case. Not content to allege my client owned the property, a small camping trailer, I wrote paragraphs of how my client purchased the camper and why he should have possession. Judge Agnew granted a nonsuit for the defendants. I appealed, and the Supreme Court reversed. Brown v. Reynolds, 266 S.C. 41, 221 S.E.2d 396 (1975). On remand, the jury focused on one of my irrelevant allegations and found for the defendants without reaching the legitimate issues. I learned what Abraham Lincoln meant in his advice to a young lawyer, “In law it is good policy never to plead what you need not, lest you oblige yourself to prove what you can not.” (emphasis in original)
Years later, in a family court I alleged, the defendant engaged in sexual intercourse after the marriage with someone other than the plaintiff. Opposing counsel Jane Randall called and told me either I must make the allegation more definite and certain with dates, times, places, circumstances, and paramour or I must strike the allegation. She was right. Rule 9(f), Time and Place, SCRCP. Because I could not allege it, I struck it. Consider how much time, money, and energy Jane saved herself, her client, the trial judge, my client, and me by insisting I comply with the rule. I learned the lesson Chief Justice Joseph R. Moss taught. “It is also a familiar principle that what is essential to be proved is essential to be alleged.” Hunter v. Hyder, 236 S.C. 378, 384, 114 S.E.2d 493, 496 (1960).
Do not confuse or jumble allegations of fact with the prayer for relief. When writing the complaint, consider the effect if opposing counsel admits or denies an allegation. In a recent ease, opposing counsel alleged as a fact in ¶ 13, “Plaintiff respectfully requests the Court to grant attorney’s fees, Private Investigator fees and suit money in this matter due to the nature of the litigation.” The plaintiff may have requested it respectfully but did not request it properly. My answer stated, “The defendant admits the allegations of ¶ 12 of the amended complaint but denies the allegation oor admission entitles the plaintiff to any relief.” If the allegation is unnecessary as an element or factor entitling your client to procedural or substantive relief, omit it. Recently I served discovery requests, including this interrogatory. “13. Relevance. Referring to ¶ 7 of your Complaint, what is the relevance of your allegation, ‘In 2013 and 2016 Defendant was desperately seeking to have more children with Plaintiff’ and what facts do you intend to offer in support of this allegation?” I look forward to the response.
My test of the quality of a pleading is the effort required to respond. If the pleading generates 12(b) motions and extensive qualifications to admissions or denials, it is a poor pleading. The more the allegations require only a simple admission or denial, the better the pleading.
Last, do not plead for relief, which the court is unlikely to grant or which makes no difference.
- One factor in awarding or withholding attorney’s fees is “the beneficial results obtained by the attorney.” Brown v. Brown, 408 S.C. 582, 587, 758 S.E.2d 922, 924 (Ct. App. 2014). If you seek attorney’s fees for a husband with five times the earnings of the wife, you set the wife up to show a beneficial result and set yourself and your client up for failure.
- Many lawyers routinely allege, “Plaintiff requires an Order barring Defendant from incurring any debt in his name or the parties’ joint name without permission. Plaintiff also requires an order prohibiting Defendant from selling, wasting, encumbering, hiding, destroying or otherwise diminishing the value of marital assets during the pendency of this action.” This relief is rarely needed and, if opposed, even less successful, yet it helps the opposing party claim a beneficial result.
Looking at a pleading for the last example, I found another lesson. The pleader alleged the plaintiff “has made substantial direct contributions to the marital estate through his direct and indirect (emphasis added) contributions. Understand your allegations and make sure they make sense.
Warning: family court judges who do not understand the role of pleadings may not welcome your insistence on correct pleading by your adversary. Some judges respond, “Can’t you get that through discovery?” My response is I cannot prepare narrow discovery requests until I have an appropriate pleading. The court should not require me to use my valuable time or to use my limited interrogatories or request for admissions of fact to ask opposing counsel what the issues are. When facing such a judge, create a thorough appellate record while exhibiting your best and most gracious attitude and demeanor.