Rules are Rules for a Reason, Part 6, Pretrial Briefs

Of all the tools provided in the South Carolina Rules of Civil Procedure, the most ignored and underused is the pretrial brief required by Rule 16(c), SCRCP. Lawyers and judges could make their lives and jobs simpler and more pleasant by following this rule. Few lawyers in South Carolina comply with this rule, even in the “big” or “important” cases. The pretrial brief is almost unheard of in smaller or routine cases. I use the terms trial brief and pretrial brief almost interchangeably.

Rule 16(c), 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 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 use. The requirements for the pretrial brief are:

(1) A concise, non-argumentative statement of the facts of the case. The best practice is to start your pretrial brief with your initial interview. You must record the facts somewhere. You could use a legal pad, an old envelope, a 3×5-index card, a post-it note, or some other scrap of paper, which is easily lost or misplaced. The easiest and best place is the pretrial brief. As the case develops and additional facts are learned, add them to your pretrial brief. As trial approaches, delete those facts no longer relevant or useful.

(2) An objective statement of the facts in controversy. You may not learn what facts are in controversy until the pleadings are completed, you have received affidavits from the temporary hearing, or until discovery is completed. Working on this section will help you prepare relevant and incisive discovery requests, determine your needs for witnesses and evidence, and prepare your trial outline. Even an objective statement of the facts in controversy should suggest to the judge that your version is correct. “The husband denies adultery despite, the credit card receipts from the Red Roach Motel, photographs with his paramour, and the private investigator’s report.”

(3) The legal issues involved. This includes the law applicable to the cause of action and the defense. Bryan A. Garner, author of The Winning Brief, teaches issues are best stated as syllogisms. Example. Adultery is a ground for divorce (S. C. Code Ann. § 20-3-10(1)) and may “be proven by circumstantial evidence showing inclination and opportunity to commit adultery (Panhorst v. Panhorst, 301 S.C. 100, 102, 390 S.E.2d 376, 377 (Ct. App. 1990). The husband and his paramour were alone overnight in a room at the Red Roach Motel on May 7, 2020. Is the wife entitled to a divorce on the ground of adultery?”

(4) A listing of exhibits, indicating those to which there is disagreement and a listing of witnesses who may be called and, if available, their address and phone number. When you learn of a potential witness, list the name, contact information, and substance of the witness’ knowledge or  testimony. This will help when answering interrogatories. When time for the pretrial conference or trial approaches, delete those who will not testify.

(5) Any unusual problems relating to evidence to be introduced, such as “Business Records as Evidence Act,” hearsay, use of depositions, etc. Example: “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Rule 401, SCRE) The wife’s photographs of the husband and his paramour are admittedly of poor quality but they corroborate the husband’s adultery. The photographs are admissible.

(6) Any unusual question or matter, which should be brought to the attention of the court. Example: Condonation is conditional, but subsequent conduct leading the other party “to reasonably believe that the original offense will be repeated or that some other act constituting a ground of divorce will be committed” may revive the original ground (McLaughlin v. McLaughlin, 244 S.C. 265, 275, 136 S.E.2d 537, 542 (1964)). The husband committed adultery, which the wife condoned, but later the husband slapped the wife. Although a mere slap may not suffice as a ground for divorce, the wife’s reasonable fear of physical cruelty revived the adultery as a divorce ground. This is an argument you are likely to lose if you spring it on a judge at trial but which you are likely to win if you prepare the judge and he or she has time to consider it.

(7) A statement that settlement negotiations were attempted before the date of the pre-trial hearing and the status of settlement negotiations. This is a good place to keep a journal of settlement negotiations, including dates, mediators, and the offers of each party. Also, list stipulations. Small stipulations regarding jurisdiction and venue, date and place of marriage, names, dates of birth, and paternity of children, identification of property (even with no agreement of value or apportionment), and admissible exhibits save time, money, and frustration.

A 1993 amendment to Rule 16, SCRCP, requires that you serve your pretrial brief on opposing counsel by the same means you serve the court. The trial brief is only for the court; do not file it, as it is not part of the record. You must serve the pretrial brief on opposing counsel, but it is not part of the record.