Section VI of VIII, Redundancy
An order is not a high school English paper with a minimum length of 500 or 1,000 words. Strive for clarity and brevity, not length and repetition.
- Redundancy. Avoid redundancies. Do not refer to the minor child or minor children unless there may be confusion with an emancipated child. Do not refer to statutory grounds for divorce. All divorce grounds in South Carolina are statutory. Never use the term and/or. I have about 30 pages of quotes from appellate opinions and books on legal writing on why one should not use and/or. If you want the authorities, email me.
- Dates. When a date is used in a sentence, a comma should separate the year from the remainder of the sentence. For example, Judge Robert E. Guess was born June 19, 1948, at Union, South Carolina.
- Unnecessary Facts. Eliminate unnecessary facts. If it is unnecessary, do not include it.
- Citizenship. Many lawyers allege that a party “is a citizen and resident of York County” and include that term in their orders. Generally, citizenship is unnecessary to establish a cause of action and it is rarely is proven at trial. The principle was best expressed by Abraham Lincoln who advised, “In law it is good policy never to plead what you need not, lest you oblige yourself to prove what you can not.” Pleading only what is necessary is a good habit.
- Procedural History. Recitation of the entire procedural history is unnecessary. The date of filing and the date of service are necessary to establish jurisdiction but it is unnecessary to recite every temporary hearing, motion, or order unless it goes to a specific issue decided by the order.
- Testimony. Do not state the testimony; state the facts. For example, “The defendant engaged in sexual intercourse with Jane Lovealot on January 1, 2021;” not “The plaintiff testified the defendant engaged in sexual intercourse with Jane Lovealot on January 1, 2021.” Not only is it shorter and easier to read, it strengthens the order. A recitation of the testimony has no effect while a statement of fact is necessary to support the order. Not all testimony is fact. See Section I, Findings of Fact.
- Findings of Fact. Many orders contain language such as “Based upon the testimony, exhibits, and financial declarations, I make the following findings of fact by a preponderance of the evidence.” That introductory sentence is written makes it unnecessary to start each succeeding sentence with, “I find that” or “Based upon the testimony of the parties, I find that.”
- Redundancy, AND IT IS THEREFORE ORDERED. Once a court issues an order, it is unnecessary to repeat it. The late Judge Berry L. Mobley frequently struck this language from orders saying that having ordered it once; he should not have to say it again.
- Redundancy, In this Case. It is rarely necessary to use the phrase “in this case” unless you are comparing the present case to another case cited as authority. The reader can safely infer that you are referring to the case stated in the title unless you specifically reference another case.
Section VII of VIII, Submission
- Submission of Proposed Order to Adverse Attorney. Rule 5(b)(3), SCRCP, requires service of a proposed order on the adverse attorney. The purpose of the rule is to avoid a violation of Rule 3.5(b), Rules of Professional Conduct, Rule 407, and SCACR, which prohibits ex parte contact with a judge. Despite the limited purpose of the rule, it provides a good opportunity for the lawyers to work together to produce an order that will avoid confusion by advising the parties of their rights, duties, and obligations in clear, precise, simple, and unambiguous language.
- Objections. What if after you prepare the perfect order and submit it to opposing counsel, she objects? One answer, Send it to the trial judge and send a copy at the same time by the same method to opposing counsel. The better answer, either make the correction or explain to opposing counsel why you are unwilling to make the changes. When you submit the proposed order to the judge, you may advise her generally that opposing counsel objects or you may state the specific objections.
Section VIII of VIII, Conclusion
Having assigned preparation of the order to you, most judges will sign and file whatever you present, but this leaves potential problems. Your client and the opposing party may not understand the order and that misunderstanding may lead either to a contempt proceeding, a modification proceeding or an appeal. The trial judge may find the order insufficient to support a contempt proceeding. An appellate court may find the order vague, ambiguous, or unclear and either make its own findings and ruling or remand the case to the family court for clarification. Whatever happens, your client will not be happy if he or she
perceives the problem was your poor drafting.
- When you have done the difficult and tedious work necessary to win your case, finish strong—just like your marathon. Do not toss it away with a poor order.