These materials may not be reproduced in whole or in part without the express written permission of the individual speaker.
Super CLE, February 10, 2020
The information herein is provided for attendees of the Hilton Head Bar Association CLEs and is NOT intended as legal advice from this association or any of its speakers. Should you need legal advice, please consult with a licensed attorney.
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Steven Spitz, Esquire
A Quick Review of Fundamental Equity Principles
By Stephen Spitz
Stevens & Lee
151 Meeting Street
Charleston, SC 29401
Phone (843) 414-5085
Email sasp@stevenslee.com
An Equitable Cause of Action Directly Dealing With MONEY
“Money Had and Received” is an Equitable Cause of Action; Even Though The General Rule is that Monetary Damages is an Action at Law, Nonetheless a Cause of Action called “Money Had and Received” is actually an action at equity.
In the past 20 years, “Money Had and Received” Has Fallen Into Real Non-use In S.C. Since the year 2000, a search of Westlaw Suggests It Has Only Been Used A Very Few Times In This State.
But, The three Elements of “Money Had and Received”
•Are still a really valid, and highly useful, S.C. claim that often can be successful where other causes of action, can’t or don’t work!
Surprisingly, Only 3 Elements Are Necessary To Prove A Valid Claim For “Money Had & Received”:
1. The Defendant holds money;
2. That In equity and in good conscience;
3. Should be paid to Plaintiff
It Is Totally Unnecessary To Even Prove:
•A contract, or quasi-contract, or some sort of tort wrongdoing, as part of the plaintiff’s case, for “money had and received,” although often one or more of these different theories, is not infrequently, part of the Plaintiff’s proof
Some Classic Examples:
•As early as 1839, South Carolina recognized a case of monies had and received: See Marvin v. M’Rae, 1 Rice 171 (S.C. 1839) (“if a party has money in his or her hand that belongs to another, that other party may sue the first in an action for monies had and received”)
• Actions for Money Had and Received can include a wide variety of fact situations, including:
A Wide Variety of Fact Situations Where Money Had and Received May Exist
•Mistaken Rent Payments: McDonald’s Corp v. Moore, 237 F.Supp. 874 (D.S.C. 1965) (The plaintiff-tenant proved the rent overpayment to the defendant-landlord was in error each month for a number of years and was a result of the tenant’s “inadvertence.” The Court found those mistaken rent overpayments were therefore recoverable, because the defendant was not entitled to those overpayments, and could not in good conscience retain them)
More Examples of: “Money Had and Received”
•Pilot Life Ins. Co. v. Cudd, 208 S.C. 6 (S.C.1945)
•In this case, the Supreme Court confronted a claim for money had and received based upon payment of life insurance proceeds that were wrongfully paid on the basis that someone was deceased. In fact, they were still alive, and when that fact was discovered, the Insurance Co. sought for the money to be repaid.
Repayment was Ordered by the Court
•The Court said the monies should be repaid, even though the parties involved did not know the insured was still alive when the insurance money was paid in good faith, based upon a mutual mistaken fact held by both sides in good faith.
•The Court held that a mistake of fact, at least in this case, was not a valid defense.
One additional example
•Okatie River v. Southeastern Site Prep, 577 S.E. (S.C. App. 2003) Here the critical question was whether the money held by one person really was a loan, an advance, a down deposit, or a sum to be repaid upon specific terms to another person.
Court’s Reasoning
•The Court found there was evidence that supported the conclusion (supported by tax documents) that this was a loan that should be repaid, and since no work was done for which the money had been originally intended, that it was inequitable for Southeastern Site Prep to retain these funds.
•Accordingly, this was in fact a classic Money Had and Received Claim, and the funds should be returned to Okatie River.
Worth Remembering: “Inherent Powers” of Equity Court
•“Courts have the inherent power to do all things reasonably necessary to insure that just results are reached to the fullest extent possible” Ex parte Dibble, 279 S.C. 592 (S.C.App. 1983).
Defenses to Money Had and Received
Possible Defense No. 1 (Balancing Equities)
•Wachovia Bank, N.A. v. Thomasko, 339 S.C. 592, 529 S.E.2d 554 (S.C. App. 2000): To prevail under theory of detrimental reliance on overpayment, party must demonstrate that in paying back the money, he or she would suffer greater detriment that they would have incurred had he or she never received payment. (Sort of balancing the equities)
A Possible Defense No. 2 (Waiver)
•Saunders v. A.C. Phelps Co., 31 S.E. 54 (S.C. 1898): Recovery of money on an illegal contract that has been fully paid will ordinarily not be permitted on grounds of waiver and / or estoppel, especially if the facts of the case suggest that money was paid with full knowledge of all material facts.
Possible Defense No. 3 (Statute of Limitations)
•Who knows? This is an uncertain question with unclear answer in S.C. One possible answer is S.C. Code Section 15-3-530(1) where implied contract obligations can sometimes carry with it a 3 year Statute of Limitation under this Statute.
•Another possible partial answer, directly contrary to my first answer, is County Anderson v. Joey Preston, (Aug. 2019) when there was an insufficient quorum for the County to make a decision. In this case, the Court permitted a much longer period of time then the statute of limitations just cited above . We should carefully study and talk about this case.
Statute of Limitations Equity Claims
•Third Alternative Answer: No Legal Answer at all. Instead, since this is an Equitable Cause of Action, there is only an equitable and no legal defense. Laches: Equitable Defense for Delay
–1. Delay
–2. Unreasonable In Length Under the Circumstances
–3. That Causes Prejudice and Injury to the Defendant
• Two Examples: (next slide)
Laches: As An Equitable Alternative to Legal Statute of Limitations
•Laches is Highly Factual Defense
•A) Successful Laches Defense
–Chambers of S.C. v. Lee County, 434 S.E.2d 279 (S.C. 1973) (Yes, even a one year delay, is too long a wait under the circumstances of this case)
•B) Unsuccessful Laches Defense
–Wall v. Huguenin, 406 SE2d 347 (SC 1991) (No, a 13 year delay is permissible, under the circumstances found here)
By Stephen Spitz
Stevens & Lee
151 Meeting Street
Charleston, SC 29401
Phone (843) 414-5085
Email sasp@stevenslee.com
An Equitable Cause of Action Directly Dealing With MONEY
“Money Had and Received” is an Equitable Cause of Action; Even Though The General Rule is that Monetary Damages is an Action at Law, Nonetheless a Cause of Action called “Money Had and Received” is actually an action at equity.
In the past 20 years, “Money Had and Received” Has Fallen Into Real Non-use In S.C. Since the year 2000, a search of Westlaw Suggests It Has Only Been Used A Very Few Times In This State.
But, The three Elements of “Money Had and Received”
•Are still a really valid, and highly useful, S.C. claim that often can be successful where other causes of action, can’t or don’t work!
Surprisingly, Only 3 Elements Are Necessary To Prove A Valid Claim For “Money Had & Received”:
1. The Defendant holds money;
2. That In equity and in good conscience;
3. Should be paid to Plaintiff
It Is Totally Unnecessary To Even Prove:
•A contract, or quasi-contract, or some sort of tort wrongdoing, as part of the plaintiff’s case, for “money had and received,” although often one or more of these different theories, is not infrequently, part of the Plaintiff’s proof
Some Classic Examples:
•As early as 1839, South Carolina recognized a case of monies had and received: See Marvin v. M’Rae, 1 Rice 171 (S.C. 1839) (“if a party has money in his or her hand that belongs to another, that other party may sue the first in an action for monies had and received”)
• Actions for Money Had and Received can include a wide variety of fact situations, including:
A Wide Variety of Fact Situations Where Money Had and Received May Exist
•Mistaken Rent Payments: McDonald’s Corp v. Moore, 237 F.Supp. 874 (D.S.C. 1965) (The plaintiff-tenant proved the rent overpayment to the defendant-landlord was in error each month for a number of years and was a result of the tenant’s “inadvertence.” The Court found those mistaken rent overpayments were therefore recoverable, because the defendant was not entitled to those overpayments, and could not in good conscience retain them)
More Examples of: “Money Had and Received”
•Pilot Life Ins. Co. v. Cudd, 208 S.C. 6 (S.C.1945)
•In this case, the Supreme Court confronted a claim for money had and received based upon payment of life insurance proceeds that were wrongfully paid on the basis that someone was deceased. In fact, they were still alive, and when that fact was discovered, the Insurance Co. sought for the money to be repaid.
Repayment was Ordered by the Court
•The Court said the monies should be repaid, even though the parties involved did not know the insured was still alive when the insurance money was paid in good faith, based upon a mutual mistaken fact held by both sides in good faith.
•The Court held that a mistake of fact, at least in this case, was not a valid defense.
One additional example
•Okatie River v. Southeastern Site Prep, 577 S.E. (S.C. App. 2003) Here the critical question was whether the money held by one person really was a loan, an advance, a down deposit, or a sum to be repaid upon specific terms to another person.
Court’s Reasoning
•The Court found there was evidence that supported the conclusion (supported by tax documents) that this was a loan that should be repaid, and since no work was done for which the money had been originally intended, that it was inequitable for Southeastern Site Prep to retain these funds.
•Accordingly, this was in fact a classic Money Had and Received Claim, and the funds should be returned to Okatie River.
Worth Remembering: “Inherent Powers” of Equity Court
•“Courts have the inherent power to do all things reasonably necessary to insure that just results are reached to the fullest extent possible” Ex parte Dibble, 279 S.C. 592 (S.C.App. 1983).
Defenses to Money Had and Received
Possible Defense No. 1 (Balancing Equities)
•Wachovia Bank, N.A. v. Thomasko, 339 S.C. 592, 529 S.E.2d 554 (S.C. App. 2000): To prevail under theory of detrimental reliance on overpayment, party must demonstrate that in paying back the money, he or she would suffer greater detriment that they would have incurred had he or she never received payment. (Sort of balancing the equities)
A Possible Defense No. 2 (Waiver)
•Saunders v. A.C. Phelps Co., 31 S.E. 54 (S.C. 1898): Recovery of money on an illegal contract that has been fully paid will ordinarily not be permitted on grounds of waiver and / or estoppel, especially if the facts of the case suggest that money was paid with full knowledge of all material facts.
Possible Defense No. 3 (Statute of Limitations)
•Who knows? This is an uncertain question with unclear answer in S.C. One possible answer is S.C. Code Section 15-3-530(1) where implied contract obligations can sometimes carry with it a 3 year Statute of Limitation under this Statute.
•Another possible partial answer, directly contrary to my first answer, is County Anderson v. Joey Preston, (Aug. 2019) when there was an insufficient quorum for the County to make a decision. In this case, the Court permitted a much longer period of time then the statute of limitations just cited above . We should carefully study and talk about this case.
Statute of Limitations Equity Claims
•Third Alternative Answer: No Legal Answer at all. Instead, since this is an Equitable Cause of Action, there is only an equitable and no legal defense. Laches: Equitable Defense for Delay
–1. Delay
–2. Unreasonable In Length Under the Circumstances
–3. That Causes Prejudice and Injury to the Defendant
• Two Examples: (next slide)
Laches: As An Equitable Alternative to Legal Statute of Limitations
•Laches is Highly Factual Defense
•A) Successful Laches Defense
–Chambers of S.C. v. Lee County, 434 S.E.2d 279 (S.C. 1973) (Yes, even a one year delay, is too long a wait under the circumstances of this case)
•B) Unsuccessful Laches Defense
–Wall v. Huguenin, 406 SE2d 347 (SC 1991) (No, a 13 year delay is permissible, under the circumstances found here)
The Honorable Heather Galvin, Associate Probate Judge, Beaufort County
Navigating Guardianship and Conservatorship Matters
Danny had a nice peaceful life until. . . .
Mama fell from the train.
After her fall she made bad decisions, the worst of which was to move in with Richard, who told Mama she was a pretty woman who deserved the finer things in life.
Danny was concerned that Richard was spending all of Mama's money and that Mama needed to see a doctor.
Danny comes to you for help. How do you proceed?
Is this an emergency?
62-5-101(7) defines emergency as:
•circumstances that are likely to result in substantial harm to the alleged incapacitated individual's health, safety, or welfare or in substantial economic loss to the alleged incapacitated individual
Emergency Relief Timeline 62-5-108
Temporary Relief Timeline 62-5-108
Tips for Lawyers
1. Make sure that you have adequately investigated the situation to determine that an emergency does exist and that you have supporting affidavits, especially the physician’s affidavit.
2.Make sure you know all the parties that need to be served and notified prior to filing the action.
3. Make sure your client is available to attend the emergency hearing.
4. Make sure before filing that your client is credit worthy enough to obtain a surety bond.
5. Make sure you have done your homework before bringing the matter before the Court.
Danny was appointed as Temporary Guardian.
Richard has moved on to greener pastures.
Danny would like to move forward with plenary guardianship and conservatorship. He calls you and discloses that he has an evil twin brother. Arnold who has been estranged for years.
After being served Arnold files an Answer and competing petitions. He claims Mama has capacity, but even if she doesn't she signed healthcare and durable powers of attorney naming Arnold as her agent.
Just when you think things could not get worse, Richard returns claiming he and Mama had entered into a common law marriage and he wasn't just a gigolo.
What do you do?
Serve the interested parties. Answer Arnold's competing petition. Review the DE Report and GaL report.
Important Caveat: The Consent Order expires in 30 days. If Mama does not request a formal hearing within those 30 days, THEN the court will issue a final order.
BUT… a hearing may still be required…
•If there is no agreement between the parties, then the Court will hold a FORMAL hearing.
•Even if everyone agrees, the Court may still require a FORMAL hearing or an INFORMAL proceeding.
•In most instances with a lay Guardian or Conservator, a formal hearing or an informal proceeding will likely be required.
Tips for Lawyers
1. Make sure everyone has been served.
2. Make sure that all the proper exams have been completed and reports filed and served.
3. Make sure that there is either an agreement in place or a hearing is requested.
4. Before proceeding to a hearing, make sure you have done your homework and everything is in order. Don’t forget to send out notice of the hearing.
5. Make sure your client is prepared if there is no agreement.
After the dust is cleared Danny is appointed. He now needs your help as he invested Mama's funds with a nice fellow named Leo and things didn't go so well.
What do you do?
Conservator Report Details
After receiving the report, interested parties can seek relief. Danny must include all assets received and disbursed. The Court may require a physical examination or check of Mama's assets. Danny must support
Tips for Lawyers
1. Assist client with compiling financial information by having client provide or assisting client in obtaining copies of all financial documents, bank statements, investment statements, income, expenses, etc.
2. Financial information will be used for the Financial Plan, Inventory, and Accounting.
3. Work with a financial planner if necessary for the financial plan depending on the complexity of the individual’s assets and needs. Having a budget of what and the money can be used for will keep the client on the right path.
4. Prepare the Financial Plan, Inventory, and Accounting with the information provided and verified by the client.
5. Stay involved with the client throughout the initial process to guide them down the right path and keep them from going astray.
§ 62-5-306 Termination of Guardianship for incapacitated person; accounting of funds.
•(A) Upon the death of the ward, the guardian shall notify the court and file a death certificate confirming the ward's death. The court may then issue an order terminating the guardianship and the appointment of the guardian.
•(B) If there is no conservatorship for the ward, the guardian may file an application for specific authority to use the ward's funds for the final disposition of the ward's remains.
1.File an Application for Relief to Terminate Guardianship
2.If no Conservator, the Guardian may file an Application for Use of Deceased Ward’s Funds for final disposition of the Ward’s remains
3.If the funds are used by the Guardian for the final disposition of the remains, an Accounting must be filed with the Court.
a.It must be filed within 10 days of the Order approving the expenditure.
b.A Proof of Delivery must be filed showing delivery to last known address of Personal Representative.
c.If no Will is located, a copy to one of ward’s closest adult relatives.
§ 62-5-428 Termination of Conservatorship for incapacitated person; accounting of funds.
§Upon the death of the ward, the Conservator may request an Order terminating the Conservatorship and approving a final accounting
§Shall deliver to the Court any Will in his/her possession and inform the Personal Representative or a beneficiary named in the will of delivery.
§Retain the estate for delivery to Personal Representative or other person entitled to it
§After 30 days without appointment or pending appointment the Conservator may apply for appointment as Personal Representative
§File a Conservator Report requesting discharge and approval of Final Accounting
§Distribute assets to PR (62-5-423)
§Turn over the Will
§Apply to be PR
Tips for Lawyers
1. Make sure that the client has accurately accounted for everything up until the date of death.
2. Make sure the client understands that the Conservatorship does not continue after death.
3. Make sure the client does not keep paying for expenses out of the Conservatorship account(s) after death that are expenses that should cease after death.
4. Make sure the client does not treat anything left in the Conservatorship account(s) as client’s own.
5. Assist the client with appointment as Personal Representative in the Estate or in turning over assets to the Personal Representative of the Estate.
Danny had a nice peaceful life until. . . .
Mama fell from the train.
After her fall she made bad decisions, the worst of which was to move in with Richard, who told Mama she was a pretty woman who deserved the finer things in life.
Danny was concerned that Richard was spending all of Mama's money and that Mama needed to see a doctor.
Danny comes to you for help. How do you proceed?
Is this an emergency?
62-5-101(7) defines emergency as:
•circumstances that are likely to result in substantial harm to the alleged incapacitated individual's health, safety, or welfare or in substantial economic loss to the alleged incapacitated individual
Emergency Relief Timeline 62-5-108
Temporary Relief Timeline 62-5-108
Tips for Lawyers
1. Make sure that you have adequately investigated the situation to determine that an emergency does exist and that you have supporting affidavits, especially the physician’s affidavit.
2.Make sure you know all the parties that need to be served and notified prior to filing the action.
3. Make sure your client is available to attend the emergency hearing.
4. Make sure before filing that your client is credit worthy enough to obtain a surety bond.
5. Make sure you have done your homework before bringing the matter before the Court.
Danny was appointed as Temporary Guardian.
Richard has moved on to greener pastures.
Danny would like to move forward with plenary guardianship and conservatorship. He calls you and discloses that he has an evil twin brother. Arnold who has been estranged for years.
After being served Arnold files an Answer and competing petitions. He claims Mama has capacity, but even if she doesn't she signed healthcare and durable powers of attorney naming Arnold as her agent.
Just when you think things could not get worse, Richard returns claiming he and Mama had entered into a common law marriage and he wasn't just a gigolo.
What do you do?
Serve the interested parties. Answer Arnold's competing petition. Review the DE Report and GaL report.
Important Caveat: The Consent Order expires in 30 days. If Mama does not request a formal hearing within those 30 days, THEN the court will issue a final order.
BUT… a hearing may still be required…
•If there is no agreement between the parties, then the Court will hold a FORMAL hearing.
•Even if everyone agrees, the Court may still require a FORMAL hearing or an INFORMAL proceeding.
•In most instances with a lay Guardian or Conservator, a formal hearing or an informal proceeding will likely be required.
Tips for Lawyers
1. Make sure everyone has been served.
2. Make sure that all the proper exams have been completed and reports filed and served.
3. Make sure that there is either an agreement in place or a hearing is requested.
4. Before proceeding to a hearing, make sure you have done your homework and everything is in order. Don’t forget to send out notice of the hearing.
5. Make sure your client is prepared if there is no agreement.
After the dust is cleared Danny is appointed. He now needs your help as he invested Mama's funds with a nice fellow named Leo and things didn't go so well.
What do you do?
Conservator Report Details
After receiving the report, interested parties can seek relief. Danny must include all assets received and disbursed. The Court may require a physical examination or check of Mama's assets. Danny must support
Tips for Lawyers
1. Assist client with compiling financial information by having client provide or assisting client in obtaining copies of all financial documents, bank statements, investment statements, income, expenses, etc.
2. Financial information will be used for the Financial Plan, Inventory, and Accounting.
3. Work with a financial planner if necessary for the financial plan depending on the complexity of the individual’s assets and needs. Having a budget of what and the money can be used for will keep the client on the right path.
4. Prepare the Financial Plan, Inventory, and Accounting with the information provided and verified by the client.
5. Stay involved with the client throughout the initial process to guide them down the right path and keep them from going astray.
§ 62-5-306 Termination of Guardianship for incapacitated person; accounting of funds.
•(A) Upon the death of the ward, the guardian shall notify the court and file a death certificate confirming the ward's death. The court may then issue an order terminating the guardianship and the appointment of the guardian.
•(B) If there is no conservatorship for the ward, the guardian may file an application for specific authority to use the ward's funds for the final disposition of the ward's remains.
1.File an Application for Relief to Terminate Guardianship
2.If no Conservator, the Guardian may file an Application for Use of Deceased Ward’s Funds for final disposition of the Ward’s remains
3.If the funds are used by the Guardian for the final disposition of the remains, an Accounting must be filed with the Court.
a.It must be filed within 10 days of the Order approving the expenditure.
b.A Proof of Delivery must be filed showing delivery to last known address of Personal Representative.
c.If no Will is located, a copy to one of ward’s closest adult relatives.
§ 62-5-428 Termination of Conservatorship for incapacitated person; accounting of funds.
§Upon the death of the ward, the Conservator may request an Order terminating the Conservatorship and approving a final accounting
§Shall deliver to the Court any Will in his/her possession and inform the Personal Representative or a beneficiary named in the will of delivery.
§Retain the estate for delivery to Personal Representative or other person entitled to it
§After 30 days without appointment or pending appointment the Conservator may apply for appointment as Personal Representative
§File a Conservator Report requesting discharge and approval of Final Accounting
§Distribute assets to PR (62-5-423)
§Turn over the Will
§Apply to be PR
Tips for Lawyers
1. Make sure that the client has accurately accounted for everything up until the date of death.
2. Make sure the client understands that the Conservatorship does not continue after death.
3. Make sure the client does not keep paying for expenses out of the Conservatorship account(s) after death that are expenses that should cease after death.
4. Make sure the client does not treat anything left in the Conservatorship account(s) as client’s own.
5. Assist the client with appointment as Personal Representative in the Estate or in turning over assets to the Personal Representative of the Estate.
Barbara Seymour, Esquire: A Healthy Lawyer is a Good Lawyer
SC Ethics and Discipline Update
Barbara M. Seymour
Clawson and Staubes, LLC
(800) 774-8242
barbara@cslaw.com
Substance Abuse and Mental Health Resources for
South Carolina Lawyers
Barbara M. Seymour
Clawson and Staubes, LLC
(803) 904-1458
barbara@cslaw.com
(11/11/2019)
DO YOU NEED HELP?
DOES A LAWYER OR JUDGE YOU KNOW NEED HELP?
Thoughts or Talk of Suicide:
Hotline: 1-800-273-8255
Text: TALK to 741741
Other Mental Health Issues:
Hotline: 800-950-6264
Text: NAMI To 741741
Lawyers Helping Lawyers:
(877) 797-2227 EXT 181 or 140
A healthy lawyer is a good lawyer. Far too often, attorneys and law students suffer in silence while experiencing prolonged stress and anxiety. Sometimes, that suffering leads to depression and substance use. This talk will review symptoms and available treatments and resources to assist in defeating this problem in the legal community.
In 2016, the results of the most comprehensive mental health study of the legal profession was released with startling results. The Hazelden/Betty Ford Study was commissioned by the ABA Commission on Lawyer Assistance Programs (CoLAP). More than 12,800 licensed, employed lawyers participated in this national research on lawyer impairment and mental health by completing a detailed survey. The study found that:
28% of responding lawyers had experienced symptoms of depression
19% of responding lawyers had experienced symptoms of anxiety
23% of responding lawyers had experienced symptoms of stress
21% of responding lawyers engaged in hazardous, harmful, and potentially
dependent alcohol consumption
The study revealed somewhat higher rates of mental health issues for male lawyers, younger lawyers, newer lawyers, and lawyers in private practice. However, female lawyers, older lawyers, and government and corporate lawyers still out-paced members of comparable professions.
Among those who felt alcohol use has been a problem:
27.6% indicated the problem manifested before law school
14.2% indicated the problem manifested during law school
43.7% indicated the problem manifested during the first 15 years of practice
14.6% indicated the problem manifested after the first 15 years of practice
The authors of the study wanted to find out why lawyers who experienced mental health issues or who exhibited problematic behaviors didn’t seek help. Study participants who reported these problems identified two barriers to seeking out help: not wanting others to find out they need help (50.6%) and concerns regarding privacy or confidentiality (44.2%).
Those who have analyzed the study’s results believe that rates of mental health issues reported are likely much higher than what was found in the study for several reasons. The study sought voluntary participation by email. Lawyers with current issues might not have noticed the invitation or might have decided to disregard it. In addition, potential participants might have feared that their answers to the study’s questions about “intimate” issues might be monitored, jeopardizing their careers. And, of course, it is human nature to be inclined to present yourself in a more favorable light.
The fact is, mental health and wellbeing are matters of professional responsibility for lawyers and judges. When a lawyer’s mental health and wellbeing is compromised, client interests are compromised. When a judge’s mental health and wellbeing is compromised, the integrity of, and public confidence in, the judicial system is compromised
LAWYER CONDUCT COMPROMISED BY SA/MH/LW ISSUES
RULE 1.1: COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
RULE 1.3: DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
RULE 1.4(a): COMMUNICATION
RULE 1.16(a)(2): DECLINING OR TERMINATING REPRESENTATION
A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
RULE 5.1(a): RESPONSIBILITIES OF PARTNERS & MANAGERS
A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
RULE 5.1(b): RESPONSIBILITIES OF SUPERVISORY LAWYERS
A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
RULE 5.1(d): RESPONSIBILITIES OF PARTNERS & MANAGERS
Partners and lawyers with comparable managerial authority who reasonably believe that a lawyer in the law firm may be suffering from a significant impairment of that lawyer's cognitive function shall take action to address the concern with the lawyer and may seek assistance by reporting the circumstances of concern pursuant to Rule 428, SCACR.
RULE 8.3: DUTY TO REPORT OTHERS
Rule 8.3, RPC, requires you to report a judge or another lawyer if you know that person has committed a violation of the ethical rules that "raises a substantial question as to … honesty, trustworthiness, or fitness … in other respects." A lawyer who knowingly fails to report serious misconduct is subject to discipline for violating Rule 8.3.
SC BAR RESOURCES
Attorneys to Intervene
RULE 428(a), SCACR: INTERVENTION TO PROTECT CLIENTS
The Executive Director of the South Carolina Bar, upon receipt of a written report or referral pursuant to Rule 5.1 or from a member of the South Carolina Bar expressing concern about cognitive impairment of another lawyer shall take such actions as he or she deems advisable.
Upon the Executive Director's recommendation, the President of the Bar may appoint one or more Attorneys to Intervene.
The Attorneys to Intervene shall attempt to meet with the lawyer alleged to be impaired and, if in the best interest of both the lawyer and the public, propose a course of conduct to be followed.
The Attorneys to Intervene shall promptly report to the Executive Director whether any actions were recommended to the lawyer, whether the lawyer agreed to any recommendations, and whether further action is recommended. Further action may include action under Rule 28, RLDE, Rule 413, SCACR. In the event a referral to the Commission on Lawyer Conduct is recommended by the Attorneys to Intervene, that referral shall be made by them promptly.
Information received by the Attorneys to Intervene shall not be forwarded to the Commission on Lawyer Conduct in the event that a referral is not recommended under paragraph (b).
Lawyers Helping Lawyers
www.scbar.org/LHL
Robert Turnbull, Director
Beth Padgett, Assistant Director
(866) 545-9590
(803) 603-3807
(877) 797-2227 EXT 181 or 140
CorpCare provides up to five FREE hours of intervention counseling for attorneys experiencing emotional or stress-related issues. The call is free and anonymous (855) 321-4384.
SC Bar Wellness Committee
www.livingabovethebar.org
OTHER RESOURCES
National Association of Mental Illness
www.nami.org
NAMI Helpline: 800-950-6264
Or, in a crisis: Text NAMI To 741741
American Foundation for Suicide Prevention
www.afsp.org
Advice from AFSP:If you think someone is thinking about suicide, assume you are the only one who will reach out. Here’s how to talk to someone who may be struggling with their mental health. Have an honest conversation.
WHEREAS we acknowledge that lawyers are three times as likely to suffer from depression as any other profession;
WHEREAS we acknowledge that suicide is the third leading cause of death among lawyers;
WHEREAS we acknowledge that the rate of death by suicide for lawyers is nearly six times the suicide rate for the general population;
WHEREAS we acknowledge that lawyers are twice as likely to suffer from substance abuse as the general population;
WHEREAS the South Carolina Bar formed the HELP Task Force to raise awareness and promote prevention of substance abuse, mental illness, and suicide within the legal profession;
WHEREAS the South Carolina Bar’s Lawyers Helping Lawyers program provides support and services to members of the legal profession in South Carolina who suffer from substance abuse or depression;
WHEREAS we recognize that raising awareness and promoting prevention of substance abuse, mental illness, and suicide within the legal profession will save lives and restore integrity to the profession;
WHEREAS we recognize that such awareness and prevention efforts will also protect the public from lawyers whose performance is impaired by these problems;
BE IT THEREFORE RESOLVED that the South Carolina Bar is committed to the goal of bringing an end to the epidemic of depression, suicide, and substance abuse among lawyers, and therefore, supports the efforts of the HELP Task Force and Lawyers Helping Lawyers. We further encourage lawyers, judges, law students, law firms, corporate legal departments, legal service organizations, government offices, the court system, and related agencies, and all other employers of lawyers to support the goal of raising awareness and promoting the prevention of substance abuse, mental illness, and suicide. We encourage these organizations to work with the HELP Task Force and Lawyers Helping Lawyers to promote a better understanding of mental health issues in the legal profession.
Barbara M. Seymour
Clawson and Staubes, LLC
(800) 774-8242
barbara@cslaw.com
Substance Abuse and Mental Health Resources for
South Carolina Lawyers
Barbara M. Seymour
Clawson and Staubes, LLC
(803) 904-1458
barbara@cslaw.com
(11/11/2019)
DO YOU NEED HELP?
DOES A LAWYER OR JUDGE YOU KNOW NEED HELP?
Thoughts or Talk of Suicide:
Hotline: 1-800-273-8255
Text: TALK to 741741
Other Mental Health Issues:
Hotline: 800-950-6264
Text: NAMI To 741741
Lawyers Helping Lawyers:
(877) 797-2227 EXT 181 or 140
A healthy lawyer is a good lawyer. Far too often, attorneys and law students suffer in silence while experiencing prolonged stress and anxiety. Sometimes, that suffering leads to depression and substance use. This talk will review symptoms and available treatments and resources to assist in defeating this problem in the legal community.
In 2016, the results of the most comprehensive mental health study of the legal profession was released with startling results. The Hazelden/Betty Ford Study was commissioned by the ABA Commission on Lawyer Assistance Programs (CoLAP). More than 12,800 licensed, employed lawyers participated in this national research on lawyer impairment and mental health by completing a detailed survey. The study found that:
28% of responding lawyers had experienced symptoms of depression
19% of responding lawyers had experienced symptoms of anxiety
23% of responding lawyers had experienced symptoms of stress
21% of responding lawyers engaged in hazardous, harmful, and potentially
dependent alcohol consumption
The study revealed somewhat higher rates of mental health issues for male lawyers, younger lawyers, newer lawyers, and lawyers in private practice. However, female lawyers, older lawyers, and government and corporate lawyers still out-paced members of comparable professions.
Among those who felt alcohol use has been a problem:
27.6% indicated the problem manifested before law school
14.2% indicated the problem manifested during law school
43.7% indicated the problem manifested during the first 15 years of practice
14.6% indicated the problem manifested after the first 15 years of practice
The authors of the study wanted to find out why lawyers who experienced mental health issues or who exhibited problematic behaviors didn’t seek help. Study participants who reported these problems identified two barriers to seeking out help: not wanting others to find out they need help (50.6%) and concerns regarding privacy or confidentiality (44.2%).
Those who have analyzed the study’s results believe that rates of mental health issues reported are likely much higher than what was found in the study for several reasons. The study sought voluntary participation by email. Lawyers with current issues might not have noticed the invitation or might have decided to disregard it. In addition, potential participants might have feared that their answers to the study’s questions about “intimate” issues might be monitored, jeopardizing their careers. And, of course, it is human nature to be inclined to present yourself in a more favorable light.
The fact is, mental health and wellbeing are matters of professional responsibility for lawyers and judges. When a lawyer’s mental health and wellbeing is compromised, client interests are compromised. When a judge’s mental health and wellbeing is compromised, the integrity of, and public confidence in, the judicial system is compromised
LAWYER CONDUCT COMPROMISED BY SA/MH/LW ISSUES
RULE 1.1: COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
RULE 1.3: DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
RULE 1.4(a): COMMUNICATION
- A lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished.
- A lawyer shall keep the client reasonably informed about the status of the matter.
- A lawyer shall promptly comply with reasonable requests for information.
RULE 1.16(a)(2): DECLINING OR TERMINATING REPRESENTATION
A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
RULE 5.1(a): RESPONSIBILITIES OF PARTNERS & MANAGERS
A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
RULE 5.1(b): RESPONSIBILITIES OF SUPERVISORY LAWYERS
A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
RULE 5.1(d): RESPONSIBILITIES OF PARTNERS & MANAGERS
Partners and lawyers with comparable managerial authority who reasonably believe that a lawyer in the law firm may be suffering from a significant impairment of that lawyer's cognitive function shall take action to address the concern with the lawyer and may seek assistance by reporting the circumstances of concern pursuant to Rule 428, SCACR.
RULE 8.3: DUTY TO REPORT OTHERS
Rule 8.3, RPC, requires you to report a judge or another lawyer if you know that person has committed a violation of the ethical rules that "raises a substantial question as to … honesty, trustworthiness, or fitness … in other respects." A lawyer who knowingly fails to report serious misconduct is subject to discipline for violating Rule 8.3.
SC BAR RESOURCES
Attorneys to Intervene
RULE 428(a), SCACR: INTERVENTION TO PROTECT CLIENTS
The Executive Director of the South Carolina Bar, upon receipt of a written report or referral pursuant to Rule 5.1 or from a member of the South Carolina Bar expressing concern about cognitive impairment of another lawyer shall take such actions as he or she deems advisable.
Upon the Executive Director's recommendation, the President of the Bar may appoint one or more Attorneys to Intervene.
The Attorneys to Intervene shall attempt to meet with the lawyer alleged to be impaired and, if in the best interest of both the lawyer and the public, propose a course of conduct to be followed.
The Attorneys to Intervene shall promptly report to the Executive Director whether any actions were recommended to the lawyer, whether the lawyer agreed to any recommendations, and whether further action is recommended. Further action may include action under Rule 28, RLDE, Rule 413, SCACR. In the event a referral to the Commission on Lawyer Conduct is recommended by the Attorneys to Intervene, that referral shall be made by them promptly.
Information received by the Attorneys to Intervene shall not be forwarded to the Commission on Lawyer Conduct in the event that a referral is not recommended under paragraph (b).
Lawyers Helping Lawyers
www.scbar.org/LHL
Robert Turnbull, Director
Beth Padgett, Assistant Director
(866) 545-9590
(803) 603-3807
(877) 797-2227 EXT 181 or 140
CorpCare provides up to five FREE hours of intervention counseling for attorneys experiencing emotional or stress-related issues. The call is free and anonymous (855) 321-4384.
SC Bar Wellness Committee
www.livingabovethebar.org
OTHER RESOURCES
National Association of Mental Illness
www.nami.org
NAMI Helpline: 800-950-6264
Or, in a crisis: Text NAMI To 741741
American Foundation for Suicide Prevention
www.afsp.org
Advice from AFSP:If you think someone is thinking about suicide, assume you are the only one who will reach out. Here’s how to talk to someone who may be struggling with their mental health. Have an honest conversation.
- Talk to them in private
- Listen to their story
- Tell them you care about them
- Ask directly if they are thinking about suicide
- Encourage them to seek treatment or to contact their doctor or therapist
- Avoid debating the value of life, minimizing their problems or giving advice
- Take them seriously
- Stay with them
- Help them remove lethal means
- Call the National Suicide Prevention Lifeline: 1-800-273-8255
- Text TALK to 741741 to text with a trained crisis counselor - FREE 24/7
- Escort them to mental health services or an emergency room
WHEREAS we acknowledge that lawyers are three times as likely to suffer from depression as any other profession;
WHEREAS we acknowledge that suicide is the third leading cause of death among lawyers;
WHEREAS we acknowledge that the rate of death by suicide for lawyers is nearly six times the suicide rate for the general population;
WHEREAS we acknowledge that lawyers are twice as likely to suffer from substance abuse as the general population;
WHEREAS the South Carolina Bar formed the HELP Task Force to raise awareness and promote prevention of substance abuse, mental illness, and suicide within the legal profession;
WHEREAS the South Carolina Bar’s Lawyers Helping Lawyers program provides support and services to members of the legal profession in South Carolina who suffer from substance abuse or depression;
WHEREAS we recognize that raising awareness and promoting prevention of substance abuse, mental illness, and suicide within the legal profession will save lives and restore integrity to the profession;
WHEREAS we recognize that such awareness and prevention efforts will also protect the public from lawyers whose performance is impaired by these problems;
BE IT THEREFORE RESOLVED that the South Carolina Bar is committed to the goal of bringing an end to the epidemic of depression, suicide, and substance abuse among lawyers, and therefore, supports the efforts of the HELP Task Force and Lawyers Helping Lawyers. We further encourage lawyers, judges, law students, law firms, corporate legal departments, legal service organizations, government offices, the court system, and related agencies, and all other employers of lawyers to support the goal of raising awareness and promoting the prevention of substance abuse, mental illness, and suicide. We encourage these organizations to work with the HELP Task Force and Lawyers Helping Lawyers to promote a better understanding of mental health issues in the legal profession.
J. Steve Mixon, Esquire and Lauren Zeldin, Esquire
Tips for Litigating
Plaintiffs’ Employment Cases
EVALUATING THE PLAINTIFF
John Stephen "Steve" Mixon
The Mixon Law Firm
Lauren Zeldin, Esq
Ogletree Deakins Nash Smoak & Stewart P.C
One of the hardest lessons to learn as a Plaintiff practitioner is that in addition to evaluating the merits of the case, you must also learn to evaluate the plaintiff herself. Given the average length of an employment case and the amount of time you will inevitably spend with your client, it is important to screen not just the case but the person as well. Ideally, case evaluation begins the moment you first speak with a potential client. Evaluation of the case and the client are critical tasks and this article explores a framework for the evaluation of such claims. A successful attorney must remember that the potential client needs to be interviewed before we allow ourselves to be hired. These skills are particularly important in employment cases where a high percentage of potential clients may not have a legally viable claim.
I. Evaluating the Merits & Value of a Case
A. Telephonic Conference, Intake Form & In-Person Conferences If we met with every single potential client who called, we would never do any actual work. Instead, as practitioners we learn to first evaluate a potential claim through either a single or a series of telephonic interviews. A short telephone conversation with a potential client can yield a wealth of knowledge but you must remember that you need to guide the conversation to prevent being directed off track or for a stroll down memory lane. You should be direct with the potential client and explain that you do not want all the details at this juncture, and you are looking for an overview of her issues. Tell the potential client that you need to know certain information to ascertain, initially, if you are able to help the individual and if not, why give a professional, honest reason. Tell the individual if you do not think she has a case. If you are not interested, explain why even if the reason is current case load, larger issues which would be better handled by another attorney, or there would be inadequate damages to make litigation worthwhile. While it may be tempting to let another attorney be the bearer of bad news, do not simply send potential clients to another attorney because the individual does not have a case and you do not want to be the bearer of bad news.
Begin the telephone interview by asking where the employee works or worked. Then, presuming you do not have any conflicts, ask the individual why they are calling. For example, if the client was fired, you may want to ask what the individual was told was the reason for his or her termination. Then ask what the individual believes the reason for termination really was. This will usually get you to the heart of the matter and helps the individual to articulate what she may not have tried to put into words before. Often, potential clients want to discuss every wrongful or unethical behavior that has occurred at any time during the course of their employment; try to keep the individual focused. Find out the reason for adverse employment action given by the employer and then ask for the true reason. Then, take a few minutes to explore whether you can help the potential client establish her harm, and if appropriate discuss the consequences that quitting or failing to seek employment could have on a potential claim.
Presuming that you are still interested in the case and the potential client, the next step would be two simultaneous actions: asking the client to complete a detailed intake form, and scheduling an appointment for an intake interview. Exhibit A provides sample client intake questionnaires used in employment disputes. Despite the use of an intake form, always assume you are still only getting half the picture and do not rely on the client haphazardly filling out the form. A great intake practice is to review the information on the intake form with the client to make sure information is complete, in the appropriate area of the form, and accurate.
Asking the client to fill out a detailed intake form before coming in for her initial meeting gives you a greater opportunity to evaluate the client; first, it gives you an opportunity to ascertain whether the potential client is capable of following instructions; second, it permits you the time to digest the facts of the case in a quiet setting without the client interjecting additional information or questions; third, it allows you to gather many of the pertinent facts prior to spending hours in a meeting with a client whom you may determine is not right for your practice. It is hard for an attorney to get excited about a case when she is not excited about the action, so make sure the case is one you feel passionate about and believe merits your support.
The most important tool in screening clients, however, is the initial meeting. By this stage, you should have determined that you think there is a case, that it can be supported by evidence, and that you and potential client are forming a bond which is sustainable. You should generally spend a few hours in this initial meeting; however, if you can discern immediately that your initial feelings were incorrect, and that the representation will not be appropriate, terminate the meeting and avoid continuing to expend resources where no case exists. If the initial meeting progresses consistent with your expectations, spend a few hours exploring the potential client’s allegations, his or her history, and the potential client as a person. This initial meeting is your best opportunity to get to know the potential client, establish a rapport, and begin building trust between you and the potential client.
2. Factual History & Supporting Evidence What better way is there for an attorney to become motivated than to step into the shoes of her client? A useful means of evaluating a case and potential plaintiff is to spend the first meetings and weeks before accepting a potential client learning the facts, obtaining supporting documentation and other evidence, talking to witnesses, establishing a timeline, and other activities with a factual emphasis. While this topic will be explored in greater detail later in this seminar, it is important to note that with everything you do, you must make certain that you can prove each element of the case with credible evidence.
II. Evaluating Procedural Elements
While the focus of this particular presentation is not the procedural issues related to employment litigation, it is worthwhile to briefly address the importance of evaluating the procedural elements of the case from the start. A significant consideration in any potential representation is determining what stage of litigation or pre-litigation activity is this potential client’s claim is in. If applicable, has she or he satisfied her or his administrative prerequisite by timely filing a Charge of Discrimination with the United States Equal Employment Opportunity Commission (“EEOC”)? If so, does it need to be amended to include all necessary elements of the complaint? Or is it later in the proceedings and a Notice of Right to Sue had already been issued and the time to file suit is limited? Based on the procedural status, you need to ensure that you have adequate time to investigate the case and the client.
Counsel must also ascertain whether this is the most advantageous time to become involved in the proceedings. Sometimes, an employer will be less defensive before an attorney is hired by the aggrieved employee, and in other situations, the employer will truthfully participate in the EEOC or Department of Labor investigation without retaining counsel, thereby increasing the actual information received in those processes, if the employer thinks the employee is not represented by counsel. As a third of many possibilities and in the rarest of situations, your explanations, evaluations and recommendations are all that is needed to amicably resolve the case without the necessity of protracted litigation between the employer and employee.
Whatever the procedural posture of the case, counsel must ensure that the current caseload permits the additional anticipated workload and that any further proceedings are within the applicable statute of limitations.
III. Evaluating the Person
You should not limit your factual investigation to the claims of the case, but also accept that a person is attached to that claim and just as the claim can have an effect on the person, the person can affect the claim.
A. Potential Client’s Objectives When thinking about objectives of litigation, an attorney may be tempted to define success in terms of a litigation outcome. It is also of upmost importance to realize that any potential representation is not about what is best for you as the attorney. The potential client is coming to you seeking assistance in resolving her employment dispute. A successful attorney will understand that on occasion, the case will be resolved fairly quickly or even when setting up any potential claims. While the loss of a potential case may seem discouraging, do not focus on what you will not make on that case as in likelihood you will receive significantly more referrals for doing the right thing than for obtaining a larger fee.
You must also realize that the potential client does not have your education. The potential client may not know even what potential remedies are available; accordingly, the responsibility falls on your shoulders to start at the outset and establish realistic expectations. After gathering the facts and explaining an overview of the law, one of your very first questions for the potential client should ask what does this potential client want as part of our job as attorneys is managing client expectations and making sure they are realistic. Remind the potential client of your limitations and tell the potential client what remedies are available to her under the applicable laws. Potential clients need to be reminded that you are often limited to stopping the discrimination or harassment that most often, these cases end with a simple monetary recovery. Are they looking for an apology? Vengeance? Can you get the recovery your potential client seeks and can you make a living doing it? These are the questions that you need to ask yourself.
One of the best methods of establishing a prospective client’s objectives are to remind the potential client that you cannot turn back the hands of time and undo what was done to them but that you can help them to stop the offensive conduct, make sure it does not happen to others and to help the potential client be compensated for her injuries. Ask your potential client what financial recovery they expect before giving them a number. It will sometimes be necessary to tell your potential client that you will, in turn, explain what you believe is a realistic recovery and to tell them why you believe this recovery to be reasonable. Provide the prospective client with examples of other settlements and jury verdicts obtained for other clients.
B. Do You Get Along? The primary objective when conducting these initial telephonic and in person conferences is to determine if you can work with the potential client together as a team. Do you trust the potential client? Does she seem to trust you; is she able to rely on your advice; does she respect your experience and knowledge? The ability to create and maintain a relationship is critical, and demonstrates why it is important to work together before accepting the potential client. Is she able to make it to your appointments on time? Do she dress appropriately? Is she courteous? How does she look? Unfortunately, we live in a superficial world and our client will be judged on her appearance, as will you! If your potential client cannot get to you for appointments, work on solutions but make sure you meet in person. Do not be afraid to go to the prospective client, see the potential client’s home, meet families, and become acquainted with your prospective client’s life. There is no better way to get to know a potential client than becoming a friend, a confidant and someone they can rely on as we are, after all, not just legal advisors but counselors as well.
While very little in life can be unconditionally guaranteed, this is absolutely guaranteed: you will not get along with every potential client who walks through your door. You may have habits that the potential client cannot tolerate and vice versa. Explore these personality conflicts before you become wed to a client for years to come. Explain why the prospective client’s appearance matters. If the potential client is offended by the truth and will not accept constructive criticism, this is not a client you want to represent.
C. Credibility Do you believe the potential client? If you do not, how can you ever believe you are going to convince a judge, a jury or defense counsel of their credibility? Some lawyers say they do not want to know the truth. In employment cases, however, not only do you want to know the truth, you must demand the truth. You cannot protect your client from evils you do not even know are lurking; that means you cannot sit in judgment of the person sitting before you, however, you must know them inside out as described in detail infra.
D. Presentability & Likability Credibility is different and should not be confused with presentability and likability. You must remember, if the potential client does not impress you, the task of impressing the fact finder may be significantly more difficult. You need to make a determination concerning how the potential client will present to a jury, and be honest in your assessment. If this is a sexual harassment victim, will anyone believe they were harassed? Like a rape victim, you have to make sure your client does not appear to have instigated the activity at issue. You need a presentable and likeable client, who, when she testifies, will evoke a strong and positive response from the jury on behalf of the potential client.
You also need to compare the prospective client’s likability with the defendant, its employees, opposing counsel, and key witnesses. Discover all the negative stories these persons or parties may tell about your potential client.
Do not take a case simply because it is viable. A case is only as good as your plaintiff and you must learn to ascertain if they came likeable or can be taught.
E. The Past & Miscellaneous Issues You also need to become intimately familiar with your potential client’s past, which means she needs to trust you implicitly. If a potential client exhibits reservations on being honest, take it as a warning sign. Remind the potential client that everything you discuss is confidential, that you are not judging her but need to know how to protect her from the other side. Explain that the defense will often try to bully plaintiffs in employment litigation by investigating the plaintiff’s past, even when unrelated to the case and even try to open up medical histories and explore prior allegations, as if those issues were somehow relevant. You must ensure that a potential client understand the ramifications of pursuing litigation and the emotion toll. In other words, you must make sure the prospective client is emotionally, physically and mentally stable.
F. Background Information Explore your potential client’s past before opposing counsel does. Has she ever been known by other names (not only maiden names)? Has she had more than one social security number? Where has she lived for the past 10 years and why did she move each time? Remind the potential client that you come after family and spiritual advisors in terms of who the prospective client calls in emergency. You must engrain in the potential client’s minds the importance of always staying in contact. What is her date of birth? Get a copy of the potential client’s driver’s license. Find out about family life, military service, and the martial history. Does the prospective client have children?
Be suspect of anyone unwilling to share this information – your role requires candor from your client, and your representation could be quickly undermined by a client that has withheld information.
1. Financial Background Does your potential client have motivation to lie?
Does the prospective client have a cell phone and/or email address? If not, are you willing to shoulder the additional burdens of contacting a hard to reach client?
2. Education Employers will often verify educational credentials in employment actions. Ask the prospective client about any high school, college, post graduate, programs, military service, certification, and training. Ask for specific details such as when and where degrees or certifications were obtained.
3. Employment Ask for a list of employers for last ten years including the location, telephone number, position, supervisor, duties, wages and benefits, reason left employment, eligible for rehire. Make sure to supplement intake questionnaire with important information.
4. Medical You need to know whether to the potential client is sensitive about her medical history. If she was raped, if she has private issues she has explored with her therapist unrelated to her claims, you need to discuss these issues openly and frankly. Such discussions will define your claims. For example, a garden variety emotional damage claim will not subject your client to an independent medical examination. A claim for intentional infliction of emotion distress, however, may. See Dominguez-Silva v. Harvey, 2006 U.S. Dist. LEXIS 20885 (N.D. Ga. Mar. 23, 2006); Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551 (N.D. Ga. 2001).
5. Prior Litigation You should be weary of serial plaintiffs. You need to find out if the prospective client ever sued anyone before. You also need to ask when, where, the nature of the claim, who represented them, who represented the employer, what the result of that action was.
You also want to determine if the potential client was ever sued before. If so, ask who, when, where, what was the nature of the claim, who was the potential client’s attorney, what was the result.
While the issues of bankruptcy and divorce may seem wholly unrelated to an employment action, these issues can have consequences for the prospective client. Ask the client if they are engaged in either bankruptcy or divorce, or are contemplating either type of action.
6. Skeletons While discovery may be limited regarding criminal charges, you can, however, demand to know a prospective client’s criminal history, any alleged criminal activities and what skeletons lurk in this closet.
G. Ability to Follow Instructions - Intelligence Do yourself a favor: do not accept any client that cannot follow instructions or respect your decisions. By now, you should have established that the prospective client or client can follow instructions, stays in contact as promised and trusts you. You must make a determination that the prospective client or client has the ability to understand the anticipated process and what you will expect of her between now and the end of the litigation. You must determine that she is in it for the long haul if need be. Give your client homework, such as a list of items on Exhibit B. Give the prospective client due dates and make sure she adheres strictly to your instructions.
Establish ground rules. While you are there to listen and the prospective client should feel free to come to you, she should not rely on you as a mental health professional. At times, it may be necessary for you to refer the potential client to a professional for counseling. Make sure they understand and respect your privacy. Make sure the potential client is intelligent enough to understand what you say and what you direct her to do. While it is your job to explain the issues and process to your clients clearly, your job will not permit you to spend every day repeating yourself.
Ability to understand fee agreement
Tell stories so the potential client can relate – tell her about other cases, lessons learned, and personal information issues that needed to be addressed.
IV. Evaluating the Evidence
Once you have determined that you like the allegations, that they are viable, and you and the potential client are a match, then you need to ensure that you have the evidence squared away necessary to support your claim. Set up the case - take the time before being hired to make sure all loose ends are wrapped up and foreclose the defense from creating issues. For example, if the client belongs to a union, make sure that the grievance process was exhausted. Allow the client time to do what needs to be done in the most advantageous manner and do not allow the client to control the schedule. Most potential clients are aggrieved and want you to help right the wrong immediately. A client who does not listen to your advice is not a client you want.
Therefore, before you take your first action or send your very first letter, have your searches done on your witnesses (hostile or otherwise), the client and the defendant. Use the web, social networking sites, research pacer, preserve records with the Department of Labor, get the Commission’s files, prepare your discovery requests, calendar deposition notices and the order thereof, have your audio and video transcribed, calendar your statutes of limitations.
You also need to ensure that you have all your ducks in a row. Make sure your potential client has provided you with all documentation she has in any way related to her employer. Do not allow the potential client to judge what is important and what is not, as few prospective clients have adequate experience to accurately judge what information is important or unimportant. Undoubtedly, it is much safer to err on the side of obtaining too much information than too little. Make sure you get any handbooks, medical documentation, personnel information, prior write ups or counselings, compensation records, EEOC, Department of Labor, witness statements, audio and video recordings, documents establishing corporate structure, phone logs, employee contact information, etc. Make sure your evidence is preserved for long-term litigation use if necessary.
V. Evaluating the Costs
Now that you have determined you like the case, the facts and the client, you need to determine if the upside is worth your involvement. Sometimes the damages simply will be so insignificant that your involvement simply does not make financial sense. If your anticipated hourly compensation will be greater than any potential recovery, the ethical thing to do is advise your client the best course of action. Because most of the employment laws are fee shifting, clients with small wage losses are able to afford representation despite the potentially low income or small wage losses.
You as the lawyer, however, need to determine your chances of success, the anticipated costs of proving your case and whether you can afford the expenses or will need the client to remit payment for the expenses. Either way, counsel must remember that her own inability to advance case expenses should not limit the representation and work done on a client’s behalf. It is not acceptable to say that the attorney cannot afford the depositions, so the deposition will not be done. Accordingly, at the outset, a lawyer must make a judgment call at how many depositions will be needed, whether expert testimony will assist in proving the case, how much time and energy will it take to get a recovery, will travel expenses be required, and other decisions with financial consequences.
While we do not a crystal ball to see the future, a good lawyer will discuss with the potential client the process, the likelihood of settlement at any given stage, and to make sure that the potential client fully understands the terms and obligations of the fee agreement. A lawyer should also take the time early on to determine if the defendant is solvent and that a potential client can withstand the financial strains that generally coincide with lawsuit in light of the realistic probability of retaliation and even termination.
VI. Conclusion
While the courting stage between lawyer and client holds enormous importance and should not be rushed, representation and acceptance of a potential client remains a multi-stage process in getting to know the prospective client and the case. Becoming familiar with both the potential client and the case will allow you to evaluate the allegations, the facts, the evidence, the process, and ultimately the client. Because the vast majority of Plaintiff’s employment cases are taken on a contingency fee basis, the necessity of properly utilizing your time and energy is paramount. Do not allow yourself to be convinced to take a case out of sympathy or the inability to say no; while almost every attorney has felt sympathy for clients in difficult situations, the learning experience of taking a bad case should never be repeated twice.
EXHIBIT A
CLIENT INTAKE QUESTIONNAIRE EMPLOYMENT DISPUTES
General Information
Last Name First Name ___________ Middle Initial
Nickname Driver’s License State/Number
Date of Birth _______________ State of Birth
Social Security Number Sex Disability
Race National Origin
Address_______________________________________________________
Home Telephone ___________ Work Telephone ____________________
Cellular Telephone ___________ Alternative Telephone ________________
E-mail __________________ Alternative E-Mail _______________________
Marital Status Spouse’s Name
Spouse’s Telephone
Name(s) & Birth Dates of Child(ren)
Medical Issues
Emergency Contact
Current or Most Recent Employment
Please provide the following information in full detail regarding your current or most recent employment:
Company: __________________________ Tel. No. _________________
Address: ____________________________________________________________
How many employees are: At your location? __________ Company wide? ______
Your job title: __________________________
Date of hire:
Your pay rate when hired: ____________ per hr./day/wk/yr
Your pay rate now: ____________ per hr./day/wk/yr
Your duties and responsibilities:
Promotions:
Who is your immediate supervisor?
Last name First name ______________ Middle Initial ____
Approximate age: Race: Sex: ______________
Your Current Employment Dispute
Please describe in as much detail as possible each and every way that you believe you were subjected to discrimination, harassment, and/or retaliation. In completing this description, be sure to include the identity of the company against whom your claims are brought, the dates of harm, the identity of the person(s) responsible for the discrimination, harassment, and/or retaliation, and a complete description of the acts of discrimination, harassment, and/or retaliation taken. Also include the reasons given to you for the acts you consider discriminatory. Attach additional sheets if necessary.
If your alleging discrimination because of your disability, what is the name of your disability? How does your disability affect your daily life or work activities, e.g., what does your disability prevent or limit you from doing, if anything? (Examples: lifting, sleeping normally, breathing normally, pulling, walking, climbing, caring for yourself, working, etc.). Did you ask your employer for any assistance or change in working condition because of your disability? Did you need this assistance or change in working condition
Witnesses
Please identify all current and former employees who may have information that is useful in your case. Please identify all employees, including those who you think may assist your employer against you.
Employee # 1: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
What information/knowledge does this person have that could be helpful to your case?
Employee # 2: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
What information/knowledge does this person have that could be helpful to your case?
Please attach additional sheets if there are additional favorable witnesses.
Persons Treated More Favorably
Identify all persons who you believe were treated more favorably than you in similar circumstances and for each such person, provide the following information. Attach additional sheets if necessary.
Employee # 1: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
How was this person treated better than you (i.e., hired, promoted, not disciplined)?
Have you told this person you are pursuing a claim? (circle one) Yes No
Will this person provide information about your claims? (circle one) Yes No Unsure
Employee # 2: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
How was this person treated better than you (i.e., hired, promoted, not disciplined)?
Have you told this person you are pursuing a claim? (circle one) Yes No
Will this person provide information about your claims? (circle one) Yes No Unsure
Please attach additional sheets if there are additional favorable witnesses.
Complaints and Grievances
Does the employer against whom you are filing a claim have: (circle your response)
An employee handbook? Yes No Don't know
A personnel policy? Yes No Don't know
A grievance policy? Yes No Don't know
A discrimination or harassment policy? Yes No Don't know
An employee hotline? Yes No Don't know
A union/collective bargaining agreement? Yes No Don't know
Identify each and every complaint of discrimination, harassment and/or retaliation you have made against the employer whom you are filing a claim, and provide the following information:
The date you first complained to anyone in management about such conduct:______
Each and every date after your first complaint that you complained to management:
Identify all persons and departments to whom you complained:
Describe, in as much detail as possible, exactly what you told each person to whom you complained:
Describe, in as much detail as possible, exactly how the company responded to your complaint:
Have you lodged a formal complaint with the Department of Labor or EEOC or other agency, if so, what agency?: ; when? ; please provide copies
Have you ever made a prior complaint with another agency? If so, when, for what and against who?
Document List
If you have any of the following documents, please bring or send photocopies of the documents along with your completed questionnaire:
1. Job descriptions for your job and any job for which you applied;
2. Your entire personnel file if available;
3. All company policy manuals and employee handbooks;
4. All write-ups, warnings and disciplinary actions you were issued;
5. Your separation notice if you have been terminated;
6. Any journals, diaries or notes that you kept during your employment;
7. All past reviews and performance appraisals;
8. Earnings statements and income tax records for the past five years;
9. All photographs, audiotapes and videotapes you have relating to your employment or your claims;
10. A detailed time line of all significant events during your employment, including promotions, demotions, discriminatory discipline, harassment and disparate treatment;
11. A summary of any company employment policies you believe were violated;
12. A summary of persons you reported any discrimination or harassment to, what was said or done in response to your complaints and copies of all complaints you made in writing;
13. A summary of all damages and mental and emotional distress you have suffered as a result of the discrimination or harassment you have been subjected to;
14. A detailed time line of all significant events during your employment or your claims;
15. Anything else relating to your employment that you have not yet provided to me.
Additional Documents
Have you kept a journal, diary, notes, or calendar during your employment with the employer against whom you are filing a claim? Yes No
If so, please provide our firm with a complete copy of the same.
Please list any other documents, photographs, videos, audiotapes and anything else you have relating to your employment:
Employment History
Please list your last five employers:
Company # 1: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 2: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 3: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 4: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 5: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Employee Reviews
How often are/were employee reviews conducted at your current or most recent job? (i.e. quarterly, biannually, annually, never, etc.):
When was your last review given?
What were the results of your last employee review?
What were the results of your previous reviews?
Were your raises contingent upon your reviews?
When was the last time you received a raise or a bonus?
When was the last time you received a negative review?
Have you ever been written-up or disciplined in any way for dishonesty, insubordination, or any other type of misconduct at your last job or at any job you have held? If so, please describe in detail. Attach additional sheets if necessary.
Arrest and Convictions
If you have ever been arrested or convicted of a criminal offense, please provide a complete description of the incident, including date of incident, location, court where proceedings were conducted, how you pled to the charge, and the disposition of the charges (convicted, paid a fine, served prison time, etc.)
Drug, Alcohol and Mental Health Treatment
If you have ever been treated for drug or alcohol abuse or for any mental health problem, please provide complete information regarding the type of treatment, date of treatment, location of treatment and whether you are you still treating, etc.
Other Lawsuits
If you have ever been a party to a lawsuit or other legal action (including bankruptcies, divorces, collection actions, landlord/tenant matters, personal injury claims and magistrate or small claims court), please provide the following information.
Date of Lawsuit #1:
Nature of the lawsuit, parties and claims made:
Name, address and telephone number of your attorney:
Date of Lawsuit #2:
Nature of the lawsuit, parties and claims made:
Name, address and telephone number of your attorney:
Attach additional sheets if there are other lawsuits.
Other Complaints of Discrimination, Harassment and/or Retaliation
Have you ever made a claim of discrimination, harassment and/or retaliation against any person or company (whether or not an employer)? If so, describe, in as much detail as possible, the circumstances surrounding the claim(s) and the status and outcome of the same:
ADDITIONAL RESPONSES
EXHIBIT B
CLIENT TO DO LIST
Complete By:
Tax returns for last 5 years
Employment search log
DATE OF CONTACT
NAME OF COMPANY
COMPLETE ADDRESS
TELEPHONE
NAME OF CONTACT
TYPE OF JOB APPLIED FOR
METHOD OF CONTACT
RESULT
Addresses for past ten years and dates at each location - evictions
Education, where, years, degree(s)
List of witnesses - names, positions, contact information, opinion about whether favorable or unfavorable
Jobs for past ten years, position, supervisor, contact information, reason left, reemployment eligibility
10 year personal medical history (doctors, name and address, purpose of visit, nature of treatment, medications prescribed)
List of effects of job loss (sleep, eat, trust, weight, nausea, headaches, emotional state, impact on work, family, life, car)
Other stressors, other things that make you upset
Marital status, children, ages, names, other names (maiden, married, former) marriages, divorce(s), spouse’s name
Prior/maiden names, Social Security Number, Date of Birth
Other sources of income since termination – list amount; dates; and payee
Prior lawsuits, claims, other grievances against any employer – detailed description
Legal history, including bankruptcy, divorce, eviction, personal injury claims
Criminal history (arrest(s), conviction(s), charges whether or not taken into custody, criminal investigation, DUI)
Who you talk to about what happened (including family, friends and therapist)
List of other acts of discrimination you saw, who, what where when witnesses & contact information
Prior discrimination against you
Timeline
Department of Labor paperwork
Medical Documentation
HIPAA release
[1] Exhibit A is a compilation of client intake questionnaires developed by various attorneys over the years and is not the exclusive work product of the authors hereof.
Plaintiffs’ Employment Cases
EVALUATING THE PLAINTIFF
John Stephen "Steve" Mixon
The Mixon Law Firm
Lauren Zeldin, Esq
Ogletree Deakins Nash Smoak & Stewart P.C
One of the hardest lessons to learn as a Plaintiff practitioner is that in addition to evaluating the merits of the case, you must also learn to evaluate the plaintiff herself. Given the average length of an employment case and the amount of time you will inevitably spend with your client, it is important to screen not just the case but the person as well. Ideally, case evaluation begins the moment you first speak with a potential client. Evaluation of the case and the client are critical tasks and this article explores a framework for the evaluation of such claims. A successful attorney must remember that the potential client needs to be interviewed before we allow ourselves to be hired. These skills are particularly important in employment cases where a high percentage of potential clients may not have a legally viable claim.
I. Evaluating the Merits & Value of a Case
A. Telephonic Conference, Intake Form & In-Person Conferences If we met with every single potential client who called, we would never do any actual work. Instead, as practitioners we learn to first evaluate a potential claim through either a single or a series of telephonic interviews. A short telephone conversation with a potential client can yield a wealth of knowledge but you must remember that you need to guide the conversation to prevent being directed off track or for a stroll down memory lane. You should be direct with the potential client and explain that you do not want all the details at this juncture, and you are looking for an overview of her issues. Tell the potential client that you need to know certain information to ascertain, initially, if you are able to help the individual and if not, why give a professional, honest reason. Tell the individual if you do not think she has a case. If you are not interested, explain why even if the reason is current case load, larger issues which would be better handled by another attorney, or there would be inadequate damages to make litigation worthwhile. While it may be tempting to let another attorney be the bearer of bad news, do not simply send potential clients to another attorney because the individual does not have a case and you do not want to be the bearer of bad news.
Begin the telephone interview by asking where the employee works or worked. Then, presuming you do not have any conflicts, ask the individual why they are calling. For example, if the client was fired, you may want to ask what the individual was told was the reason for his or her termination. Then ask what the individual believes the reason for termination really was. This will usually get you to the heart of the matter and helps the individual to articulate what she may not have tried to put into words before. Often, potential clients want to discuss every wrongful or unethical behavior that has occurred at any time during the course of their employment; try to keep the individual focused. Find out the reason for adverse employment action given by the employer and then ask for the true reason. Then, take a few minutes to explore whether you can help the potential client establish her harm, and if appropriate discuss the consequences that quitting or failing to seek employment could have on a potential claim.
Presuming that you are still interested in the case and the potential client, the next step would be two simultaneous actions: asking the client to complete a detailed intake form, and scheduling an appointment for an intake interview. Exhibit A provides sample client intake questionnaires used in employment disputes. Despite the use of an intake form, always assume you are still only getting half the picture and do not rely on the client haphazardly filling out the form. A great intake practice is to review the information on the intake form with the client to make sure information is complete, in the appropriate area of the form, and accurate.
Asking the client to fill out a detailed intake form before coming in for her initial meeting gives you a greater opportunity to evaluate the client; first, it gives you an opportunity to ascertain whether the potential client is capable of following instructions; second, it permits you the time to digest the facts of the case in a quiet setting without the client interjecting additional information or questions; third, it allows you to gather many of the pertinent facts prior to spending hours in a meeting with a client whom you may determine is not right for your practice. It is hard for an attorney to get excited about a case when she is not excited about the action, so make sure the case is one you feel passionate about and believe merits your support.
The most important tool in screening clients, however, is the initial meeting. By this stage, you should have determined that you think there is a case, that it can be supported by evidence, and that you and potential client are forming a bond which is sustainable. You should generally spend a few hours in this initial meeting; however, if you can discern immediately that your initial feelings were incorrect, and that the representation will not be appropriate, terminate the meeting and avoid continuing to expend resources where no case exists. If the initial meeting progresses consistent with your expectations, spend a few hours exploring the potential client’s allegations, his or her history, and the potential client as a person. This initial meeting is your best opportunity to get to know the potential client, establish a rapport, and begin building trust between you and the potential client.
- Case Merits & Recognizing The Elements
2. Factual History & Supporting Evidence What better way is there for an attorney to become motivated than to step into the shoes of her client? A useful means of evaluating a case and potential plaintiff is to spend the first meetings and weeks before accepting a potential client learning the facts, obtaining supporting documentation and other evidence, talking to witnesses, establishing a timeline, and other activities with a factual emphasis. While this topic will be explored in greater detail later in this seminar, it is important to note that with everything you do, you must make certain that you can prove each element of the case with credible evidence.
II. Evaluating Procedural Elements
While the focus of this particular presentation is not the procedural issues related to employment litigation, it is worthwhile to briefly address the importance of evaluating the procedural elements of the case from the start. A significant consideration in any potential representation is determining what stage of litigation or pre-litigation activity is this potential client’s claim is in. If applicable, has she or he satisfied her or his administrative prerequisite by timely filing a Charge of Discrimination with the United States Equal Employment Opportunity Commission (“EEOC”)? If so, does it need to be amended to include all necessary elements of the complaint? Or is it later in the proceedings and a Notice of Right to Sue had already been issued and the time to file suit is limited? Based on the procedural status, you need to ensure that you have adequate time to investigate the case and the client.
Counsel must also ascertain whether this is the most advantageous time to become involved in the proceedings. Sometimes, an employer will be less defensive before an attorney is hired by the aggrieved employee, and in other situations, the employer will truthfully participate in the EEOC or Department of Labor investigation without retaining counsel, thereby increasing the actual information received in those processes, if the employer thinks the employee is not represented by counsel. As a third of many possibilities and in the rarest of situations, your explanations, evaluations and recommendations are all that is needed to amicably resolve the case without the necessity of protracted litigation between the employer and employee.
Whatever the procedural posture of the case, counsel must ensure that the current caseload permits the additional anticipated workload and that any further proceedings are within the applicable statute of limitations.
III. Evaluating the Person
You should not limit your factual investigation to the claims of the case, but also accept that a person is attached to that claim and just as the claim can have an effect on the person, the person can affect the claim.
A. Potential Client’s Objectives When thinking about objectives of litigation, an attorney may be tempted to define success in terms of a litigation outcome. It is also of upmost importance to realize that any potential representation is not about what is best for you as the attorney. The potential client is coming to you seeking assistance in resolving her employment dispute. A successful attorney will understand that on occasion, the case will be resolved fairly quickly or even when setting up any potential claims. While the loss of a potential case may seem discouraging, do not focus on what you will not make on that case as in likelihood you will receive significantly more referrals for doing the right thing than for obtaining a larger fee.
You must also realize that the potential client does not have your education. The potential client may not know even what potential remedies are available; accordingly, the responsibility falls on your shoulders to start at the outset and establish realistic expectations. After gathering the facts and explaining an overview of the law, one of your very first questions for the potential client should ask what does this potential client want as part of our job as attorneys is managing client expectations and making sure they are realistic. Remind the potential client of your limitations and tell the potential client what remedies are available to her under the applicable laws. Potential clients need to be reminded that you are often limited to stopping the discrimination or harassment that most often, these cases end with a simple monetary recovery. Are they looking for an apology? Vengeance? Can you get the recovery your potential client seeks and can you make a living doing it? These are the questions that you need to ask yourself.
One of the best methods of establishing a prospective client’s objectives are to remind the potential client that you cannot turn back the hands of time and undo what was done to them but that you can help them to stop the offensive conduct, make sure it does not happen to others and to help the potential client be compensated for her injuries. Ask your potential client what financial recovery they expect before giving them a number. It will sometimes be necessary to tell your potential client that you will, in turn, explain what you believe is a realistic recovery and to tell them why you believe this recovery to be reasonable. Provide the prospective client with examples of other settlements and jury verdicts obtained for other clients.
B. Do You Get Along? The primary objective when conducting these initial telephonic and in person conferences is to determine if you can work with the potential client together as a team. Do you trust the potential client? Does she seem to trust you; is she able to rely on your advice; does she respect your experience and knowledge? The ability to create and maintain a relationship is critical, and demonstrates why it is important to work together before accepting the potential client. Is she able to make it to your appointments on time? Do she dress appropriately? Is she courteous? How does she look? Unfortunately, we live in a superficial world and our client will be judged on her appearance, as will you! If your potential client cannot get to you for appointments, work on solutions but make sure you meet in person. Do not be afraid to go to the prospective client, see the potential client’s home, meet families, and become acquainted with your prospective client’s life. There is no better way to get to know a potential client than becoming a friend, a confidant and someone they can rely on as we are, after all, not just legal advisors but counselors as well.
While very little in life can be unconditionally guaranteed, this is absolutely guaranteed: you will not get along with every potential client who walks through your door. You may have habits that the potential client cannot tolerate and vice versa. Explore these personality conflicts before you become wed to a client for years to come. Explain why the prospective client’s appearance matters. If the potential client is offended by the truth and will not accept constructive criticism, this is not a client you want to represent.
C. Credibility Do you believe the potential client? If you do not, how can you ever believe you are going to convince a judge, a jury or defense counsel of their credibility? Some lawyers say they do not want to know the truth. In employment cases, however, not only do you want to know the truth, you must demand the truth. You cannot protect your client from evils you do not even know are lurking; that means you cannot sit in judgment of the person sitting before you, however, you must know them inside out as described in detail infra.
D. Presentability & Likability Credibility is different and should not be confused with presentability and likability. You must remember, if the potential client does not impress you, the task of impressing the fact finder may be significantly more difficult. You need to make a determination concerning how the potential client will present to a jury, and be honest in your assessment. If this is a sexual harassment victim, will anyone believe they were harassed? Like a rape victim, you have to make sure your client does not appear to have instigated the activity at issue. You need a presentable and likeable client, who, when she testifies, will evoke a strong and positive response from the jury on behalf of the potential client.
You also need to compare the prospective client’s likability with the defendant, its employees, opposing counsel, and key witnesses. Discover all the negative stories these persons or parties may tell about your potential client.
Do not take a case simply because it is viable. A case is only as good as your plaintiff and you must learn to ascertain if they came likeable or can be taught.
E. The Past & Miscellaneous Issues You also need to become intimately familiar with your potential client’s past, which means she needs to trust you implicitly. If a potential client exhibits reservations on being honest, take it as a warning sign. Remind the potential client that everything you discuss is confidential, that you are not judging her but need to know how to protect her from the other side. Explain that the defense will often try to bully plaintiffs in employment litigation by investigating the plaintiff’s past, even when unrelated to the case and even try to open up medical histories and explore prior allegations, as if those issues were somehow relevant. You must ensure that a potential client understand the ramifications of pursuing litigation and the emotion toll. In other words, you must make sure the prospective client is emotionally, physically and mentally stable.
F. Background Information Explore your potential client’s past before opposing counsel does. Has she ever been known by other names (not only maiden names)? Has she had more than one social security number? Where has she lived for the past 10 years and why did she move each time? Remind the potential client that you come after family and spiritual advisors in terms of who the prospective client calls in emergency. You must engrain in the potential client’s minds the importance of always staying in contact. What is her date of birth? Get a copy of the potential client’s driver’s license. Find out about family life, military service, and the martial history. Does the prospective client have children?
Be suspect of anyone unwilling to share this information – your role requires candor from your client, and your representation could be quickly undermined by a client that has withheld information.
1. Financial Background Does your potential client have motivation to lie?
Does the prospective client have a cell phone and/or email address? If not, are you willing to shoulder the additional burdens of contacting a hard to reach client?
2. Education Employers will often verify educational credentials in employment actions. Ask the prospective client about any high school, college, post graduate, programs, military service, certification, and training. Ask for specific details such as when and where degrees or certifications were obtained.
3. Employment Ask for a list of employers for last ten years including the location, telephone number, position, supervisor, duties, wages and benefits, reason left employment, eligible for rehire. Make sure to supplement intake questionnaire with important information.
4. Medical You need to know whether to the potential client is sensitive about her medical history. If she was raped, if she has private issues she has explored with her therapist unrelated to her claims, you need to discuss these issues openly and frankly. Such discussions will define your claims. For example, a garden variety emotional damage claim will not subject your client to an independent medical examination. A claim for intentional infliction of emotion distress, however, may. See Dominguez-Silva v. Harvey, 2006 U.S. Dist. LEXIS 20885 (N.D. Ga. Mar. 23, 2006); Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551 (N.D. Ga. 2001).
5. Prior Litigation You should be weary of serial plaintiffs. You need to find out if the prospective client ever sued anyone before. You also need to ask when, where, the nature of the claim, who represented them, who represented the employer, what the result of that action was.
You also want to determine if the potential client was ever sued before. If so, ask who, when, where, what was the nature of the claim, who was the potential client’s attorney, what was the result.
While the issues of bankruptcy and divorce may seem wholly unrelated to an employment action, these issues can have consequences for the prospective client. Ask the client if they are engaged in either bankruptcy or divorce, or are contemplating either type of action.
6. Skeletons While discovery may be limited regarding criminal charges, you can, however, demand to know a prospective client’s criminal history, any alleged criminal activities and what skeletons lurk in this closet.
G. Ability to Follow Instructions - Intelligence Do yourself a favor: do not accept any client that cannot follow instructions or respect your decisions. By now, you should have established that the prospective client or client can follow instructions, stays in contact as promised and trusts you. You must make a determination that the prospective client or client has the ability to understand the anticipated process and what you will expect of her between now and the end of the litigation. You must determine that she is in it for the long haul if need be. Give your client homework, such as a list of items on Exhibit B. Give the prospective client due dates and make sure she adheres strictly to your instructions.
Establish ground rules. While you are there to listen and the prospective client should feel free to come to you, she should not rely on you as a mental health professional. At times, it may be necessary for you to refer the potential client to a professional for counseling. Make sure they understand and respect your privacy. Make sure the potential client is intelligent enough to understand what you say and what you direct her to do. While it is your job to explain the issues and process to your clients clearly, your job will not permit you to spend every day repeating yourself.
Ability to understand fee agreement
Tell stories so the potential client can relate – tell her about other cases, lessons learned, and personal information issues that needed to be addressed.
IV. Evaluating the Evidence
Once you have determined that you like the allegations, that they are viable, and you and the potential client are a match, then you need to ensure that you have the evidence squared away necessary to support your claim. Set up the case - take the time before being hired to make sure all loose ends are wrapped up and foreclose the defense from creating issues. For example, if the client belongs to a union, make sure that the grievance process was exhausted. Allow the client time to do what needs to be done in the most advantageous manner and do not allow the client to control the schedule. Most potential clients are aggrieved and want you to help right the wrong immediately. A client who does not listen to your advice is not a client you want.
Therefore, before you take your first action or send your very first letter, have your searches done on your witnesses (hostile or otherwise), the client and the defendant. Use the web, social networking sites, research pacer, preserve records with the Department of Labor, get the Commission’s files, prepare your discovery requests, calendar deposition notices and the order thereof, have your audio and video transcribed, calendar your statutes of limitations.
You also need to ensure that you have all your ducks in a row. Make sure your potential client has provided you with all documentation she has in any way related to her employer. Do not allow the potential client to judge what is important and what is not, as few prospective clients have adequate experience to accurately judge what information is important or unimportant. Undoubtedly, it is much safer to err on the side of obtaining too much information than too little. Make sure you get any handbooks, medical documentation, personnel information, prior write ups or counselings, compensation records, EEOC, Department of Labor, witness statements, audio and video recordings, documents establishing corporate structure, phone logs, employee contact information, etc. Make sure your evidence is preserved for long-term litigation use if necessary.
V. Evaluating the Costs
Now that you have determined you like the case, the facts and the client, you need to determine if the upside is worth your involvement. Sometimes the damages simply will be so insignificant that your involvement simply does not make financial sense. If your anticipated hourly compensation will be greater than any potential recovery, the ethical thing to do is advise your client the best course of action. Because most of the employment laws are fee shifting, clients with small wage losses are able to afford representation despite the potentially low income or small wage losses.
You as the lawyer, however, need to determine your chances of success, the anticipated costs of proving your case and whether you can afford the expenses or will need the client to remit payment for the expenses. Either way, counsel must remember that her own inability to advance case expenses should not limit the representation and work done on a client’s behalf. It is not acceptable to say that the attorney cannot afford the depositions, so the deposition will not be done. Accordingly, at the outset, a lawyer must make a judgment call at how many depositions will be needed, whether expert testimony will assist in proving the case, how much time and energy will it take to get a recovery, will travel expenses be required, and other decisions with financial consequences.
While we do not a crystal ball to see the future, a good lawyer will discuss with the potential client the process, the likelihood of settlement at any given stage, and to make sure that the potential client fully understands the terms and obligations of the fee agreement. A lawyer should also take the time early on to determine if the defendant is solvent and that a potential client can withstand the financial strains that generally coincide with lawsuit in light of the realistic probability of retaliation and even termination.
VI. Conclusion
While the courting stage between lawyer and client holds enormous importance and should not be rushed, representation and acceptance of a potential client remains a multi-stage process in getting to know the prospective client and the case. Becoming familiar with both the potential client and the case will allow you to evaluate the allegations, the facts, the evidence, the process, and ultimately the client. Because the vast majority of Plaintiff’s employment cases are taken on a contingency fee basis, the necessity of properly utilizing your time and energy is paramount. Do not allow yourself to be convinced to take a case out of sympathy or the inability to say no; while almost every attorney has felt sympathy for clients in difficult situations, the learning experience of taking a bad case should never be repeated twice.
EXHIBIT A
CLIENT INTAKE QUESTIONNAIRE EMPLOYMENT DISPUTES
General Information
Last Name First Name ___________ Middle Initial
Nickname Driver’s License State/Number
Date of Birth _______________ State of Birth
Social Security Number Sex Disability
Race National Origin
Address_______________________________________________________
Home Telephone ___________ Work Telephone ____________________
Cellular Telephone ___________ Alternative Telephone ________________
E-mail __________________ Alternative E-Mail _______________________
Marital Status Spouse’s Name
Spouse’s Telephone
Name(s) & Birth Dates of Child(ren)
Medical Issues
Emergency Contact
Current or Most Recent Employment
Please provide the following information in full detail regarding your current or most recent employment:
Company: __________________________ Tel. No. _________________
Address: ____________________________________________________________
How many employees are: At your location? __________ Company wide? ______
Your job title: __________________________
Date of hire:
Your pay rate when hired: ____________ per hr./day/wk/yr
Your pay rate now: ____________ per hr./day/wk/yr
Your duties and responsibilities:
Promotions:
Who is your immediate supervisor?
Last name First name ______________ Middle Initial ____
Approximate age: Race: Sex: ______________
Your Current Employment Dispute
Please describe in as much detail as possible each and every way that you believe you were subjected to discrimination, harassment, and/or retaliation. In completing this description, be sure to include the identity of the company against whom your claims are brought, the dates of harm, the identity of the person(s) responsible for the discrimination, harassment, and/or retaliation, and a complete description of the acts of discrimination, harassment, and/or retaliation taken. Also include the reasons given to you for the acts you consider discriminatory. Attach additional sheets if necessary.
If your alleging discrimination because of your disability, what is the name of your disability? How does your disability affect your daily life or work activities, e.g., what does your disability prevent or limit you from doing, if anything? (Examples: lifting, sleeping normally, breathing normally, pulling, walking, climbing, caring for yourself, working, etc.). Did you ask your employer for any assistance or change in working condition because of your disability? Did you need this assistance or change in working condition
Witnesses
Please identify all current and former employees who may have information that is useful in your case. Please identify all employees, including those who you think may assist your employer against you.
Employee # 1: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
What information/knowledge does this person have that could be helpful to your case?
Employee # 2: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
What information/knowledge does this person have that could be helpful to your case?
Please attach additional sheets if there are additional favorable witnesses.
Persons Treated More Favorably
Identify all persons who you believe were treated more favorably than you in similar circumstances and for each such person, provide the following information. Attach additional sheets if necessary.
Employee # 1: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
How was this person treated better than you (i.e., hired, promoted, not disciplined)?
Have you told this person you are pursuing a claim? (circle one) Yes No
Will this person provide information about your claims? (circle one) Yes No Unsure
Employee # 2: Last Name First Name Middle Initial ____
Approximate age: Race: __________ Sex: _____________
Address Email:
Home Telephone Work Telephone
Mobile Telephone Alt. Telephone
Is this employee still working for the company? (circle one) Yes No Don't know
What was this employee's last position with the company?
How was this person treated better than you (i.e., hired, promoted, not disciplined)?
Have you told this person you are pursuing a claim? (circle one) Yes No
Will this person provide information about your claims? (circle one) Yes No Unsure
Please attach additional sheets if there are additional favorable witnesses.
Complaints and Grievances
Does the employer against whom you are filing a claim have: (circle your response)
An employee handbook? Yes No Don't know
A personnel policy? Yes No Don't know
A grievance policy? Yes No Don't know
A discrimination or harassment policy? Yes No Don't know
An employee hotline? Yes No Don't know
A union/collective bargaining agreement? Yes No Don't know
Identify each and every complaint of discrimination, harassment and/or retaliation you have made against the employer whom you are filing a claim, and provide the following information:
The date you first complained to anyone in management about such conduct:______
Each and every date after your first complaint that you complained to management:
Identify all persons and departments to whom you complained:
Describe, in as much detail as possible, exactly what you told each person to whom you complained:
Describe, in as much detail as possible, exactly how the company responded to your complaint:
Have you lodged a formal complaint with the Department of Labor or EEOC or other agency, if so, what agency?: ; when? ; please provide copies
Have you ever made a prior complaint with another agency? If so, when, for what and against who?
Document List
If you have any of the following documents, please bring or send photocopies of the documents along with your completed questionnaire:
1. Job descriptions for your job and any job for which you applied;
2. Your entire personnel file if available;
3. All company policy manuals and employee handbooks;
4. All write-ups, warnings and disciplinary actions you were issued;
5. Your separation notice if you have been terminated;
6. Any journals, diaries or notes that you kept during your employment;
7. All past reviews and performance appraisals;
8. Earnings statements and income tax records for the past five years;
9. All photographs, audiotapes and videotapes you have relating to your employment or your claims;
10. A detailed time line of all significant events during your employment, including promotions, demotions, discriminatory discipline, harassment and disparate treatment;
11. A summary of any company employment policies you believe were violated;
12. A summary of persons you reported any discrimination or harassment to, what was said or done in response to your complaints and copies of all complaints you made in writing;
13. A summary of all damages and mental and emotional distress you have suffered as a result of the discrimination or harassment you have been subjected to;
14. A detailed time line of all significant events during your employment or your claims;
15. Anything else relating to your employment that you have not yet provided to me.
Additional Documents
Have you kept a journal, diary, notes, or calendar during your employment with the employer against whom you are filing a claim? Yes No
If so, please provide our firm with a complete copy of the same.
Please list any other documents, photographs, videos, audiotapes and anything else you have relating to your employment:
Employment History
Please list your last five employers:
Company # 1: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 2: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 3: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 4: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Company # 5: Tel. No.
Address:
Date you were hired and your position when hired:
Date you left and your position when you left:
Duties and responsibilities during your employment:
Who were your immediate supervisors?
Last name: First name:
Approximate age: Race: _________ Sex:
Why did you leave and are you eligible for rehire?
Employee Reviews
How often are/were employee reviews conducted at your current or most recent job? (i.e. quarterly, biannually, annually, never, etc.):
When was your last review given?
What were the results of your last employee review?
What were the results of your previous reviews?
Were your raises contingent upon your reviews?
When was the last time you received a raise or a bonus?
When was the last time you received a negative review?
Have you ever been written-up or disciplined in any way for dishonesty, insubordination, or any other type of misconduct at your last job or at any job you have held? If so, please describe in detail. Attach additional sheets if necessary.
Arrest and Convictions
If you have ever been arrested or convicted of a criminal offense, please provide a complete description of the incident, including date of incident, location, court where proceedings were conducted, how you pled to the charge, and the disposition of the charges (convicted, paid a fine, served prison time, etc.)
Drug, Alcohol and Mental Health Treatment
If you have ever been treated for drug or alcohol abuse or for any mental health problem, please provide complete information regarding the type of treatment, date of treatment, location of treatment and whether you are you still treating, etc.
Other Lawsuits
If you have ever been a party to a lawsuit or other legal action (including bankruptcies, divorces, collection actions, landlord/tenant matters, personal injury claims and magistrate or small claims court), please provide the following information.
Date of Lawsuit #1:
Nature of the lawsuit, parties and claims made:
Name, address and telephone number of your attorney:
Date of Lawsuit #2:
Nature of the lawsuit, parties and claims made:
Name, address and telephone number of your attorney:
Attach additional sheets if there are other lawsuits.
Other Complaints of Discrimination, Harassment and/or Retaliation
Have you ever made a claim of discrimination, harassment and/or retaliation against any person or company (whether or not an employer)? If so, describe, in as much detail as possible, the circumstances surrounding the claim(s) and the status and outcome of the same:
ADDITIONAL RESPONSES
EXHIBIT B
CLIENT TO DO LIST
Complete By:
Tax returns for last 5 years
Employment search log
DATE OF CONTACT
NAME OF COMPANY
COMPLETE ADDRESS
TELEPHONE
NAME OF CONTACT
TYPE OF JOB APPLIED FOR
METHOD OF CONTACT
RESULT
Addresses for past ten years and dates at each location - evictions
Education, where, years, degree(s)
List of witnesses - names, positions, contact information, opinion about whether favorable or unfavorable
Jobs for past ten years, position, supervisor, contact information, reason left, reemployment eligibility
10 year personal medical history (doctors, name and address, purpose of visit, nature of treatment, medications prescribed)
List of effects of job loss (sleep, eat, trust, weight, nausea, headaches, emotional state, impact on work, family, life, car)
Other stressors, other things that make you upset
Marital status, children, ages, names, other names (maiden, married, former) marriages, divorce(s), spouse’s name
Prior/maiden names, Social Security Number, Date of Birth
Other sources of income since termination – list amount; dates; and payee
Prior lawsuits, claims, other grievances against any employer – detailed description
Legal history, including bankruptcy, divorce, eviction, personal injury claims
Criminal history (arrest(s), conviction(s), charges whether or not taken into custody, criminal investigation, DUI)
Who you talk to about what happened (including family, friends and therapist)
List of other acts of discrimination you saw, who, what where when witnesses & contact information
Prior discrimination against you
Timeline
Department of Labor paperwork
Medical Documentation
HIPAA release
[1] Exhibit A is a compilation of client intake questionnaires developed by various attorneys over the years and is not the exclusive work product of the authors hereof.
The Honorable George C. James, Jr., South Carolina Supreme Court
CONSIDERATIONS OF ISSUE PRESERVATION
George C. James, Jr.
George C. James, Jr.
- Your case has wound its way to the Supreme Court of South Carolina
- What happens? How does it really work in the Supreme Court?
- Staff attorneys, law clerks, justices, and the standard of review. Who does what and when do they do it?
- What is the Court's agenda?
- The handling of the case in chambers: bench memoranda, oral argument, submitted cases, DIG
- The vote
- The preparation and circulation of an opinion
- Why should all this matter to the trial court and to the lawyer?
- Does the appellate opinion bear any resemblance to the case as tried?
- If not, why not?
- Who's on First?
- Examples from transcripts
- What's the lawyer to do?
- What's the judge to do?
- Proposed orders
- Motions to alter or amend/for reconsideration
- Final cleanup
The Honorable Stephanie P. McDonald, Court of Appeals
Practical Considerations and Professionalism
Some Tips from the Bench
Get to the point: Although Rule 208(b)(5), SCACR, generally allows for 50-page briefs, this is meant to be a ceiling rather than a target. Judges (and their clerks) would rather have an organized and succinct argument than a lengthy one filled with fluff, irrelevant arguments, or insignificant points.
Follow the rules: The court cannot consider facts which do not appear in the record. See Rules 210(h), SCAR. Likewise, beware of arguments abandoned or unpreserved. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal); see also Rule 208(b)(1)(B), SCACR (requiring "discussion and citations of authority" for each issue in an appellant's brief).
Point out your flaws: The court is going the notice the holes in your case so there is no point in trying to dodge them. Sometimes, a better strategy is to first point out your flaws and then diffuse them.
For example, explain why your case is different from other cases with similar issues.
Answer the question: At oral argument, always make sure to answer the judges' questions before pivoting back to your argument. For example, "Yes, Judge, you are correct—the video does not conclusively show the appellant robbing the bank and although he later recanted his confession . . . his fingerprints were found all over the inside of the safe."
"More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public's perception of lawyers."
Sandra Day O'Connor, Professionalism, 76 Wash. U. L.Q. 5, 8 (1998).
Incivility makes litigation more intense, and undermines a lawyer's ability to objectively represent his or her client. “This kind of personal attack against a family member of opposing counsel with no connection to the litigation brings into question the integrity of the judicial system and prejudices the administration of justice.”
In re Anonymous, 392 S.C. 328, 334-335, 709 S.E.2d 633, 637 (S.C. 2011).
Some Thoughts about
What not to Do Or
How to Avoid Becoming a CLE Story
Do not act like a belligerent child.
Really ever, but I am mostly talking about in court. Where it is captured, In a transcript.
Obstruction of justice case:
● SLED recording of complainant and public official
● SLED agent testified at trial to authenticate
● Other participant in the conversation to lay further
foundation
● Obviously admissible – by definition an admission by a
party-opponent is not hearsay pursuant to 801(d)(1)
Civility as the Core of Professionalism
Jayne R. Reardon
ABA Business Law Today
September 19, 2018
Don’t accuse opposing counsel of being untruthful unless you can back it up.
And even then, stay above the fray.
Be the zealous advocate, but remain polite.
It shall be ground for discipline for lawyer to violate the oath of office taken to practice law in this state.
Rule 7(a)(6), South Carolina Rules for Lawyer Disciplinary Enforcement
It shall be ground for discipline for lawyer to violate the oath of office taken to practice law in this state.
Rule 7(a)(6), South Carolina Rules for Lawyer Disciplinary Enforcement
I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been appointed, and that I will, to the best of my ability, discharge those duties and will preserve, protect and defend the Constitution of this State and of the United States;
Lawyer's Oath
I do solemnly swear (or affirm) that
I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them;
To my clients, I pledge faithfulness, competence, diligence, good judgment and prompt communication;
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;
The Civility Oath: Added to our oath in 2003
In re White, 391 S.C. 581, 707 S.E.2d 411 (S.C. 2011)
(name-calling, tactics calculated to intimidate/insult)
In re Lovelace, 395 S.C. 146,716 S.E.2d 919 (S.C. 2011)
(deposition behavior; simple assault)
In re Anonymous, 392 S.C. 328, 709 S.E.2d 633 (S.C. 2011)
(oral and written communications)
Remain aware of your audience
Avoid interrupting and talking over others
Tonja Jacobi and Dylan Schweers Justice Interrupted: The Effect of Gender, Ideaology and Seniority at Supreme Court Oral Arguments 103 Virginia Law Review 1379 (2017)
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
•(a) A lawyer shall not knowingly:
•(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
•(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
•(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
•(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
•(c) The duties stated in paragraphs (a) and (b) apply when the lawyer is representing a client before a tribunal as well as in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. These duties continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Some Tips from the Bench
Get to the point: Although Rule 208(b)(5), SCACR, generally allows for 50-page briefs, this is meant to be a ceiling rather than a target. Judges (and their clerks) would rather have an organized and succinct argument than a lengthy one filled with fluff, irrelevant arguments, or insignificant points.
Follow the rules: The court cannot consider facts which do not appear in the record. See Rules 210(h), SCAR. Likewise, beware of arguments abandoned or unpreserved. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal); see also Rule 208(b)(1)(B), SCACR (requiring "discussion and citations of authority" for each issue in an appellant's brief).
Point out your flaws: The court is going the notice the holes in your case so there is no point in trying to dodge them. Sometimes, a better strategy is to first point out your flaws and then diffuse them.
For example, explain why your case is different from other cases with similar issues.
Answer the question: At oral argument, always make sure to answer the judges' questions before pivoting back to your argument. For example, "Yes, Judge, you are correct—the video does not conclusively show the appellant robbing the bank and although he later recanted his confession . . . his fingerprints were found all over the inside of the safe."
"More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public's perception of lawyers."
Sandra Day O'Connor, Professionalism, 76 Wash. U. L.Q. 5, 8 (1998).
Incivility makes litigation more intense, and undermines a lawyer's ability to objectively represent his or her client. “This kind of personal attack against a family member of opposing counsel with no connection to the litigation brings into question the integrity of the judicial system and prejudices the administration of justice.”
In re Anonymous, 392 S.C. 328, 334-335, 709 S.E.2d 633, 637 (S.C. 2011).
Some Thoughts about
What not to Do Or
How to Avoid Becoming a CLE Story
Do not act like a belligerent child.
Really ever, but I am mostly talking about in court. Where it is captured, In a transcript.
Obstruction of justice case:
● SLED recording of complainant and public official
● SLED agent testified at trial to authenticate
● Other participant in the conversation to lay further
foundation
● Obviously admissible – by definition an admission by a
party-opponent is not hearsay pursuant to 801(d)(1)
Civility as the Core of Professionalism
Jayne R. Reardon
ABA Business Law Today
September 19, 2018
Don’t accuse opposing counsel of being untruthful unless you can back it up.
And even then, stay above the fray.
Be the zealous advocate, but remain polite.
It shall be ground for discipline for lawyer to violate the oath of office taken to practice law in this state.
Rule 7(a)(6), South Carolina Rules for Lawyer Disciplinary Enforcement
It shall be ground for discipline for lawyer to violate the oath of office taken to practice law in this state.
Rule 7(a)(6), South Carolina Rules for Lawyer Disciplinary Enforcement
I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been appointed, and that I will, to the best of my ability, discharge those duties and will preserve, protect and defend the Constitution of this State and of the United States;
Lawyer's Oath
I do solemnly swear (or affirm) that
I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them;
To my clients, I pledge faithfulness, competence, diligence, good judgment and prompt communication;
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;
The Civility Oath: Added to our oath in 2003
In re White, 391 S.C. 581, 707 S.E.2d 411 (S.C. 2011)
(name-calling, tactics calculated to intimidate/insult)
In re Lovelace, 395 S.C. 146,716 S.E.2d 919 (S.C. 2011)
(deposition behavior; simple assault)
In re Anonymous, 392 S.C. 328, 709 S.E.2d 633 (S.C. 2011)
(oral and written communications)
Remain aware of your audience
Avoid interrupting and talking over others
Tonja Jacobi and Dylan Schweers Justice Interrupted: The Effect of Gender, Ideaology and Seniority at Supreme Court Oral Arguments 103 Virginia Law Review 1379 (2017)
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
•(a) A lawyer shall not knowingly:
•(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
•(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
•(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
•(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
•(c) The duties stated in paragraphs (a) and (b) apply when the lawyer is representing a client before a tribunal as well as in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. These duties continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Joint Custody-Recent Developments
In the beginning . . . All parents seem to be “considered equal” under the current statute:
“The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor ……….”
Unless . . . the parents are unmarried. If so, note:
S.C. Code Ann. § 63-5-30
“[C]ustody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding apart from an action to establish paternity.”
S.C. Code Ann. 63-17-20(B)
Still, in custody disputes between unmarried parents, the parents “stand in parity.”
See Purser v. Owens, 722 S.E.2d 225 (S.C. 2011)( holding that while 63-17-20(B) does place custody of a child of unmarried parents with the mother, the statute simply clarifies the legal standing of the parties in the absence of a court-determined custody order should the matter of custody be called into question. “Custody in the natural mother under this statute does not give her a legal advantage in a custody determination as it is well settled that a mother and father stand in parity with one another as the custody analysis begins….”).
Start with the language of the statute:
S.C. Code Ann. § 63-3-530(A)(42):
The family court has exclusive jurisdiction:
(42) to order joint or divided custody where the court finds
it is in the best interests of the child;
What is missing? "Extraordinary circumstances” or any presumption against “divided” or “joint” custody.
Scott added a judicially-created presumption to the language of the statute:
“Although joint or divided custody is now permitted under 20-7-420(42) [now 63-3-530(A)(42)], visitation amounting to divided custody is disfavored by our supreme court. [S]ection 20-7-420(42) did not change the law in this State that, generally, joint custody is disfavored.”
Scott v. Scott, 579 S.E.2d 620 (S.C. 2003).
And, while clearly problematic now, this wasn’t the trend at the time of Scott, either:
“Courts in the 1970s began to realize that “the assumption a mother keeps the home, performs household duties, and will have more time to devote to the children and their welfare” was simply not true for many mothers. Gendered doctrines also yielded in the face of an emerging belief that “what a child needs is not a mother, but someone who can provide “mothering.”’ Despite the nearly universal abolition of a formal tender years presumption, however, “some judges [retain] a tendency to prefer that custody of young children be placed in the mother.” Even courts articulating the best interests standard often hewed to the unwritten presumption “that the interests of children of tender years will be best served when they are in the custody of their mother.” A relic of the common law, it seems that the tender years doctrine is forgotten but not gone.”
J. Herbie DiFonzo, From the Rule of One to Shared Parenting: Custody Presumptions in Law and Policy, 52 Fam. Ct. Rev. 213, 214-15 (2014).
Yet, Scott recognized an important reality:
The risk inherent in a joint custodial arrangement is the creation of “confusion and instability for children at the very time they need a sense of certainty and finality in their lives,” particularly if the parents are not committed to the substantial collaboration and communication required for the success of joint custody. Most courts and commentators agree with the oft-quoted dictum of the New York Court of Appeals that “joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion,” while “[a]s a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.”
DiFonzio at 216 quoting Braiman v. Braiman, 378 N.E.2d 1019, 1021 (N.Y. 1978).
"Recent studies indicate there are as many postdivorice problems with joint custody as with sole custody if parents continue to create a hostile environment."
Linda D. Elrod and Mildred D. Dale, Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance.. 42 Fam L.Q.381, note 22, at Section 1:8 (2008).
In any event, this is where South Carolina is right now:
“Absent exceptional circumstances, the law regards joint custody as typically harmful to the children and not in their best interests.
Spreeuw v. Barker, 682 S.E.2d 843 (Ct. App. 2009).
“Absent exceptional circumstances, the law regards joint custody as typically harmful to the children and not in their best interests….our courts generally disfavor joint custody…”
Lewis v. Lewis, 734 S.E.2d 322 (S.C. 2012).
But, in reality, it's going to be a case-by-case analysis resting on the facts of the particular case, focusing on the child or children.
See, e.g., Klein v Barrett, 427 S.C. 74, 828 S.E.2d 773 (Ct. App. 2019).
Mother filed action to modify the prior Order, seeking sole custody or in the alternative joint custody with equal placement and decision making authority to Mother. Family Court awarded the parties joint custody of the children with Father having primary placement, and Mother having the children during one week after school on Mondays and Wednesdays and (overnight) Thursdays to Monday morning; then after school Mondays, Tuesdays, Wednesdays and Thursdays the alternate week and allocating decision making authority between the parties by subject.
Court of Appeals affirmed the Family Court's award of joint custody with the expanded placement provisions for Mother and the allocation of decisions by subject.
Practical Considerations:
How controlling, angry, or difficult is either parent?
What is the communication dynamic?
In Burgess v. Arnold, the Court of Appeals noted Father “has a very controlling personality…”; a troubling habit of recording conversations” with child and with Mother (without her knowledge); Father had conversations with child in which Father questioned child about Mother’s actions and the “reasons for, and morality of” Mother’s actions
In Tranfield, Father made unsupported claims of parental alienation by Mother, surreptitiously taped the family, and exhibited other instances of “bizarre behavior negatively affect[ing] the children.” The COA affirmed (as modified) the Family Court’s award of sole custody to Mother, with restricted visitation to Father.
Practical Considerations:
Is the moving party motivated by personal interests, i.e. is is really about the child?
In Klein v Barrett, it was undisputed that the parties had a functional and communicative relationship prior to Husband's request that Wife begin her support payments as required by the Original Order.
Practical Considerations:
How has the party's behavior affected-or how could it affect-the child?
In Klein v. Barrett, the parties’ daughter had suffered anxiety due to the tension between the parties and the pending litigation. A custody evaluator and the child’s therapist advocated for more frequent visits with Mother, but primary placement with Father.
In Burgess v. Arnold, the Court of Appeals noted the parties’ previous joint custody arrangement had been “stressful” for the child due to the Mother and Father’s contrasting parenting styles. The COA further emphasized the “great concerns” of the family court and the Guardian Ad Litem over the child’s “perceived fear” of Father; referenced Father’s being “close minded” about the need for the child to be tested for ADHD and have counseling to address his emotional needs; and found Father’s continued joint custody of the child, with the possible increase in time with Father, “would eventually take its toll on [child’s] emotional well being.”
Has the child in any way expressed a preference?
In Klein v. Barrett, the Court of Appeals noted that the parties’ daughter (16 years old) was “mature” and expressed a desire for more frequent visits with Mother than just alternating weeks would allow.
In Burgess v. Arnold, the Court of Appeals noted the child (8 years old) had expressed a preference to continue with the joint custody arrangement the parties had in place before the action was filed, but still reversed the Family Court’s award of joint custody and awarded Mother primary custody.
Practical Considerations: How much weight may be given to a preference?
Remember that weight of a child's preference is based on the child's age and maturity.
The preference of a child who has reached age In Klein v. Barrett, the Court of Appeals noted that the parties’ daughter (16 years old) was “mature” and expressed a desire for more frequent visits with Mother than just alternating weeks would allow.
In Burgess v. Arnold, the Court of Appeals noted the child (8 years old) had expressed a preference to continue with the joint custody arrangement the parties had in place before the action was filed, but still reversed the Family Court’s award of joint custody and awarded Mother primary custody.
Is this an initial custody determination or is it a request to modify the custody arrangement already in place?
What is the motivation of the party seeking the change?
Other Custody Considerations:
Character, fitness, attitude, inclination of each party (as these may impact the children)
Who has been the primary caretaker?
How long has the current arrangement been in place and how is the child functioning within it?
Any special needs of the child and how to the parties respond to and address these needs?
Keeping it in perspective. . . or at least making the effort. . .
“Contested custody cases often bring out the worst in parents. This case was no exception, as each parent relished the opportunity to disparage the other. Each parent gave the other plenty of ammunition, which Judge Myers charitably described as their ‘shortcomings.’ Altman v. Griffith, 642 S.E.2d 619 (Ct. App. 2007).
“We fully recognize the heightened and emotionally-charged pressures present in family court litigation. Those pressures, however, in no manner diminish the paramount goal of the family court to ensure that the best interests of children are served . . . .counsel would do well to remember this litigation regarding custody and visitation matters is about determining what is best for the children, not the personal destruction of the other parent.” Montgomery v. Montgomery, 2019 WL 2295405 (Unpublished Opinion).
Other States:
3 Main Categories:
1) General presumption or starting point of joint custody (at least 14 states);
2) Joint custody permitted when the parties can agree;
3) Joint custody as an option (no presumption in favor of or against)
“Divided custody is probably not the perfect solution, for problems of this kind are rarely susceptible of the perfect solution….We speak from the bench, not the pulpit; but we are moved, nevertheless, to say that had the love of these parents for their children been less selfish and more considerate, this unhappy proceeding would never have been before us . . . .”
Scott v. Scott, 579 S.E.2d 620 (S.C. 2003).
In the beginning . . . All parents seem to be “considered equal” under the current statute:
“The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor ……….”
Unless . . . the parents are unmarried. If so, note:
S.C. Code Ann. § 63-5-30
“[C]ustody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding apart from an action to establish paternity.”
S.C. Code Ann. 63-17-20(B)
Still, in custody disputes between unmarried parents, the parents “stand in parity.”
See Purser v. Owens, 722 S.E.2d 225 (S.C. 2011)( holding that while 63-17-20(B) does place custody of a child of unmarried parents with the mother, the statute simply clarifies the legal standing of the parties in the absence of a court-determined custody order should the matter of custody be called into question. “Custody in the natural mother under this statute does not give her a legal advantage in a custody determination as it is well settled that a mother and father stand in parity with one another as the custody analysis begins….”).
Start with the language of the statute:
S.C. Code Ann. § 63-3-530(A)(42):
The family court has exclusive jurisdiction:
(42) to order joint or divided custody where the court finds
it is in the best interests of the child;
What is missing? "Extraordinary circumstances” or any presumption against “divided” or “joint” custody.
Scott added a judicially-created presumption to the language of the statute:
“Although joint or divided custody is now permitted under 20-7-420(42) [now 63-3-530(A)(42)], visitation amounting to divided custody is disfavored by our supreme court. [S]ection 20-7-420(42) did not change the law in this State that, generally, joint custody is disfavored.”
Scott v. Scott, 579 S.E.2d 620 (S.C. 2003).
And, while clearly problematic now, this wasn’t the trend at the time of Scott, either:
“Courts in the 1970s began to realize that “the assumption a mother keeps the home, performs household duties, and will have more time to devote to the children and their welfare” was simply not true for many mothers. Gendered doctrines also yielded in the face of an emerging belief that “what a child needs is not a mother, but someone who can provide “mothering.”’ Despite the nearly universal abolition of a formal tender years presumption, however, “some judges [retain] a tendency to prefer that custody of young children be placed in the mother.” Even courts articulating the best interests standard often hewed to the unwritten presumption “that the interests of children of tender years will be best served when they are in the custody of their mother.” A relic of the common law, it seems that the tender years doctrine is forgotten but not gone.”
J. Herbie DiFonzo, From the Rule of One to Shared Parenting: Custody Presumptions in Law and Policy, 52 Fam. Ct. Rev. 213, 214-15 (2014).
Yet, Scott recognized an important reality:
The risk inherent in a joint custodial arrangement is the creation of “confusion and instability for children at the very time they need a sense of certainty and finality in their lives,” particularly if the parents are not committed to the substantial collaboration and communication required for the success of joint custody. Most courts and commentators agree with the oft-quoted dictum of the New York Court of Appeals that “joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion,” while “[a]s a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.”
DiFonzio at 216 quoting Braiman v. Braiman, 378 N.E.2d 1019, 1021 (N.Y. 1978).
"Recent studies indicate there are as many postdivorice problems with joint custody as with sole custody if parents continue to create a hostile environment."
Linda D. Elrod and Mildred D. Dale, Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance.. 42 Fam L.Q.381, note 22, at Section 1:8 (2008).
In any event, this is where South Carolina is right now:
“Absent exceptional circumstances, the law regards joint custody as typically harmful to the children and not in their best interests.
Spreeuw v. Barker, 682 S.E.2d 843 (Ct. App. 2009).
“Absent exceptional circumstances, the law regards joint custody as typically harmful to the children and not in their best interests….our courts generally disfavor joint custody…”
Lewis v. Lewis, 734 S.E.2d 322 (S.C. 2012).
But, in reality, it's going to be a case-by-case analysis resting on the facts of the particular case, focusing on the child or children.
See, e.g., Klein v Barrett, 427 S.C. 74, 828 S.E.2d 773 (Ct. App. 2019).
Mother filed action to modify the prior Order, seeking sole custody or in the alternative joint custody with equal placement and decision making authority to Mother. Family Court awarded the parties joint custody of the children with Father having primary placement, and Mother having the children during one week after school on Mondays and Wednesdays and (overnight) Thursdays to Monday morning; then after school Mondays, Tuesdays, Wednesdays and Thursdays the alternate week and allocating decision making authority between the parties by subject.
Court of Appeals affirmed the Family Court's award of joint custody with the expanded placement provisions for Mother and the allocation of decisions by subject.
Practical Considerations:
How controlling, angry, or difficult is either parent?
What is the communication dynamic?
In Burgess v. Arnold, the Court of Appeals noted Father “has a very controlling personality…”; a troubling habit of recording conversations” with child and with Mother (without her knowledge); Father had conversations with child in which Father questioned child about Mother’s actions and the “reasons for, and morality of” Mother’s actions
In Tranfield, Father made unsupported claims of parental alienation by Mother, surreptitiously taped the family, and exhibited other instances of “bizarre behavior negatively affect[ing] the children.” The COA affirmed (as modified) the Family Court’s award of sole custody to Mother, with restricted visitation to Father.
Practical Considerations:
Is the moving party motivated by personal interests, i.e. is is really about the child?
In Klein v Barrett, it was undisputed that the parties had a functional and communicative relationship prior to Husband's request that Wife begin her support payments as required by the Original Order.
Practical Considerations:
How has the party's behavior affected-or how could it affect-the child?
In Klein v. Barrett, the parties’ daughter had suffered anxiety due to the tension between the parties and the pending litigation. A custody evaluator and the child’s therapist advocated for more frequent visits with Mother, but primary placement with Father.
In Burgess v. Arnold, the Court of Appeals noted the parties’ previous joint custody arrangement had been “stressful” for the child due to the Mother and Father’s contrasting parenting styles. The COA further emphasized the “great concerns” of the family court and the Guardian Ad Litem over the child’s “perceived fear” of Father; referenced Father’s being “close minded” about the need for the child to be tested for ADHD and have counseling to address his emotional needs; and found Father’s continued joint custody of the child, with the possible increase in time with Father, “would eventually take its toll on [child’s] emotional well being.”
Has the child in any way expressed a preference?
In Klein v. Barrett, the Court of Appeals noted that the parties’ daughter (16 years old) was “mature” and expressed a desire for more frequent visits with Mother than just alternating weeks would allow.
In Burgess v. Arnold, the Court of Appeals noted the child (8 years old) had expressed a preference to continue with the joint custody arrangement the parties had in place before the action was filed, but still reversed the Family Court’s award of joint custody and awarded Mother primary custody.
Practical Considerations: How much weight may be given to a preference?
Remember that weight of a child's preference is based on the child's age and maturity.
The preference of a child who has reached age In Klein v. Barrett, the Court of Appeals noted that the parties’ daughter (16 years old) was “mature” and expressed a desire for more frequent visits with Mother than just alternating weeks would allow.
In Burgess v. Arnold, the Court of Appeals noted the child (8 years old) had expressed a preference to continue with the joint custody arrangement the parties had in place before the action was filed, but still reversed the Family Court’s award of joint custody and awarded Mother primary custody.
Is this an initial custody determination or is it a request to modify the custody arrangement already in place?
What is the motivation of the party seeking the change?
Other Custody Considerations:
Character, fitness, attitude, inclination of each party (as these may impact the children)
Who has been the primary caretaker?
How long has the current arrangement been in place and how is the child functioning within it?
Any special needs of the child and how to the parties respond to and address these needs?
Keeping it in perspective. . . or at least making the effort. . .
“Contested custody cases often bring out the worst in parents. This case was no exception, as each parent relished the opportunity to disparage the other. Each parent gave the other plenty of ammunition, which Judge Myers charitably described as their ‘shortcomings.’ Altman v. Griffith, 642 S.E.2d 619 (Ct. App. 2007).
“We fully recognize the heightened and emotionally-charged pressures present in family court litigation. Those pressures, however, in no manner diminish the paramount goal of the family court to ensure that the best interests of children are served . . . .counsel would do well to remember this litigation regarding custody and visitation matters is about determining what is best for the children, not the personal destruction of the other parent.” Montgomery v. Montgomery, 2019 WL 2295405 (Unpublished Opinion).
Other States:
3 Main Categories:
1) General presumption or starting point of joint custody (at least 14 states);
2) Joint custody permitted when the parties can agree;
3) Joint custody as an option (no presumption in favor of or against)
“Divided custody is probably not the perfect solution, for problems of this kind are rarely susceptible of the perfect solution….We speak from the bench, not the pulpit; but we are moved, nevertheless, to say that had the love of these parents for their children been less selfish and more considerate, this unhappy proceeding would never have been before us . . . .”
Scott v. Scott, 579 S.E.2d 620 (S.C. 2003).
The Honorable Jenny Abbott Kitchings, Clerk of Court, South Carolina Court of Appeals
Appellate Practice at the Court of Appeals
Initiating Appellate Review: The Problems We See
Notice of Appeal
o Failure to state when the appealing party
received written notice of entry of the
order on appeal
o No final order (interlocutory appeal)
o Failure to provide copy of order being
challenged on appeal
o Failure to provide guilty plea/habeas/Rule
243(c) explanation
Appeals from Guilty Pleas Rule 203(d)(1)(b)(iv)
Plea counsel must provide a written explanation showing
there is an issue which can be reviewed on appeal
Guilty plea explanation must be filed before the transcript is
ordered
Time for ordering transcript held in abeyance
If counsel indicates no merit, client has opportunity to
respond
Failure to provide a sufficient guilty plea explanation will
result in dismissal
Guilty Plea Explanations: The Problems We See
Failure to provide guilty plea explanation after request by the Court
Failure to forward guilty plea explanation to client
Expectation that Appellate Defense will take over
Counsel remains counsel of record until relieved by order of the court or
Appellate Defense takes over pursuant to Rule 602(e), SCACR (providing the
Office of Appellate Defense will represent the accused if it determines the
accused is indigent without the need to withdraw pursuant to Rule 264)
Substitution of Counsel, Rule 264 SCACR
(a) Continued Representation. The attorneys and/or guardians
ad litem of the respective parties in the court below shall be
deemed the attorneys and guardians of the same parties in the
appellate court until withdrawal is approved and notice is given
as provided in this Rule.
(b) Withdrawal. An attorney of record in a matter pending before
an appellate court may not withdraw from representation of his
client without justifiable cause, or the consent of his client; and
then only after proper written notice to his client, on petition to
and by written order of the appellate court, and with notice to the
adverse party.
Personal Identifiers
On April 15, 2014, the Supreme Court issued an updated
order regarding personal identifiers in appellate court
filings. See RE: Revised Order Concerning Personal
Identifying Information and Other Sensitive Information in
Appellate Court filings, available at
http://www.sccourts.org/courtOrders/displayOrder.cfm?ord
erNo=2014-04-15-02
Parties must redact:
o Social Security Numbers
o Names of Minor Children
o Financial Account Numbers
o Home Addresses
o Date of Birth
The appellate courts WILL NOT review filings for redaction.
Personal Identifiers: Problems we see
Sentencing sheets include the defendant’s home address,
date of birth, and social security number
Arrest warrants and sometimes indictments may include
personal identifiers for victims
All filings with the appellate courts are scanned and
uploaded to C-Track upon receipt
Redaction is counsel’s responsibility!
Initial Briefing
Extensions
No Merit Appeals: Anders v. California, 386 U.S. 738 (1967)
o Anders Brief
o Record on Appeal
o CC on client
o Motion to be relieved
o Original and 1 copy
Designation of Matter: The Problems we See
oFailure to include critical parts of the transcript or
other documents
oOff-the-record conferences not made a part of the
record
oFailure to include certificate of counsel
Final Briefs and Records: Problems we See
o Failure to list all counsel on the cover of the brief
o Don’t forget the appellate case number!
Records on Appeal
o Failure to list all counsel for ALL parties on the cover of the record on appeal
o Failure to identify the volumes in the caption
o Inclusion of sensitive information – In re Revised Order Concerning Personal Identifying
Information and Other Sensitive Information in Appellate Court Filings,407 S.C. 607, 757
S.E.2d 421 (2014).
Initiating Appellate Review: The Problems We See
Notice of Appeal
o Failure to state when the appealing party
received written notice of entry of the
order on appeal
o No final order (interlocutory appeal)
o Failure to provide copy of order being
challenged on appeal
o Failure to provide guilty plea/habeas/Rule
243(c) explanation
Appeals from Guilty Pleas Rule 203(d)(1)(b)(iv)
Plea counsel must provide a written explanation showing
there is an issue which can be reviewed on appeal
Guilty plea explanation must be filed before the transcript is
ordered
Time for ordering transcript held in abeyance
If counsel indicates no merit, client has opportunity to
respond
Failure to provide a sufficient guilty plea explanation will
result in dismissal
Guilty Plea Explanations: The Problems We See
Failure to provide guilty plea explanation after request by the Court
Failure to forward guilty plea explanation to client
Expectation that Appellate Defense will take over
Counsel remains counsel of record until relieved by order of the court or
Appellate Defense takes over pursuant to Rule 602(e), SCACR (providing the
Office of Appellate Defense will represent the accused if it determines the
accused is indigent without the need to withdraw pursuant to Rule 264)
Substitution of Counsel, Rule 264 SCACR
(a) Continued Representation. The attorneys and/or guardians
ad litem of the respective parties in the court below shall be
deemed the attorneys and guardians of the same parties in the
appellate court until withdrawal is approved and notice is given
as provided in this Rule.
(b) Withdrawal. An attorney of record in a matter pending before
an appellate court may not withdraw from representation of his
client without justifiable cause, or the consent of his client; and
then only after proper written notice to his client, on petition to
and by written order of the appellate court, and with notice to the
adverse party.
Personal Identifiers
On April 15, 2014, the Supreme Court issued an updated
order regarding personal identifiers in appellate court
filings. See RE: Revised Order Concerning Personal
Identifying Information and Other Sensitive Information in
Appellate Court filings, available at
http://www.sccourts.org/courtOrders/displayOrder.cfm?ord
erNo=2014-04-15-02
Parties must redact:
o Social Security Numbers
o Names of Minor Children
o Financial Account Numbers
o Home Addresses
o Date of Birth
The appellate courts WILL NOT review filings for redaction.
Personal Identifiers: Problems we see
Sentencing sheets include the defendant’s home address,
date of birth, and social security number
Arrest warrants and sometimes indictments may include
personal identifiers for victims
All filings with the appellate courts are scanned and
uploaded to C-Track upon receipt
Redaction is counsel’s responsibility!
Initial Briefing
Extensions
No Merit Appeals: Anders v. California, 386 U.S. 738 (1967)
o Anders Brief
o Record on Appeal
o CC on client
o Motion to be relieved
o Original and 1 copy
Designation of Matter: The Problems we See
oFailure to include critical parts of the transcript or
other documents
oOff-the-record conferences not made a part of the
record
oFailure to include certificate of counsel
Final Briefs and Records: Problems we See
o Failure to list all counsel on the cover of the brief
o Don’t forget the appellate case number!
Records on Appeal
o Failure to list all counsel for ALL parties on the cover of the record on appeal
o Failure to identify the volumes in the caption
o Inclusion of sensitive information – In re Revised Order Concerning Personal Identifying
Information and Other Sensitive Information in Appellate Court Filings,407 S.C. 607, 757
S.E.2d 421 (2014).
Alexia Pittas, Esquire
Subpoena Process
RULE 45
Procedural and Ethical Concerns When Issuing Rule 45 Subpoenas
Subpoena practice is continuously evolving and remains one of the most fraught aspects of trial practice in South Carolina. There have been several amendments to Rule 45, SCRCP in the past few years and there are important amendments currently being considered by our Supreme Court.
Why Should You Care?
We all know that as advocates for our clients, we owe them a duty to pursue their cases zealously and to use every tool in our toolbox to help them achieve their litigation goals. However, we are constrained by our ethical duties and must remain mindful of our obligations as officers of the Court.
As officers of the court, we are empowered to sign subpoenas on behalf of any court where we are admitted to practice. Like the clerks of court, when we sign subpoenas, we are acting as agents of the court and we are wielding the court’s power and not acting in our capacity as advocates. In re Moore, 391 S.C. 627, 629, 707 S.E.2d 422, 423 (2011); Arthur State Bank v. Broom, No. 2015-UP-092, 2015 WL 793120, at *1 (S.C. Ct. App. Feb. 25, 2015) citing Rule 45(a)(3), SCRCP.
Rule 45(c)(1), SCRCP, states that “A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Subpoenas should be focused on the issues before the court and be limited in scope to a relevant time frame. They should be tailored to reach the evidence relevant to the issues before the court.
Our Court does not like it when we abuse the Court’s subpoena power and it has no problem sanctioning attorneys who do not follow the rules. See e.g., the public reprimands issued in In Re Owen, 422 S.C. 16, 809 S.E.2d 231 (2018) and In Re Fabri, 418 S.C. 384, 793 S.E.2d 306 (2016) where our Court took an extremely dim view of attorneys failing to copy opposing counsel on discovery subpoenas but signing the subpoenas certifying that they had complied with Rule 45. This is true even where the Rules are unclear, and the case law is not settled. If you do not follow Rule 45 carefully or you demand an unreasonable amount of information, you may face not only ethics charges but sanctions by the Court!
Courts have the inherent power to impose sanctions. See Schlaifer Nance & Amp v. Estate of Warhol, 194 F.3rd 323 at 336 (2nd Cir., 1999) (When imposing sanctions pursuant to its inherent powers, the court must find that the conduct in question was without colorable basis and undertaken in bad faith, i.e., motivated by improper purpose such as harassment or delay). Moreover, Rule 45(c)(1), SCRCP, itself provides:
The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
This means both you and your client could be sanctioned by the Court if you don’t follow the rules! (That’s right, you can be investigated and possibly sanctioned by the Bar for guessing wrong about how Rule 45 will later be interpreted by a court!)
How Do We Stay Out of Trouble?
Start with the Basics! Read the rule every time and always check the Court’s website to be sure you’re using the most current version of the Rule and the form provided by the Court. The Family Court subpoena form is available at https://www.sccourts.org/forms/pdf/SCCA254F.pdf. (See also Appendix A to these materials). Download and use the most current version of the form and include all the pages. Your subpoena is not valid unless it includes all parts including the notice of rights! In re Lundgren, 421 S.C. 300, 303, 806 S.E.2d 125, 127 (2017).
Know What Kind of Subpoena You’re Sending
There are two types of subpoenas, a subpoena ad testi candum (to appear and present testimony) and a subpoena duces tecum (to produce documents or allow inspection of things). Both types of subpoenas are employed in one of two situations: before trial and at trial.
A “trial subpoena” is a command for a person to appear at a trial (a regular subpoena ad testi candum) or appear at trial with documents or other things and to testify (a subpoena duces tecum and ad testi candum). A “discovery subpoena” is a command for an individual to appear at a pre-trial deposition, either by himself (a regular subpoena ad testi candum) or with documents or other things (subpoena duces tecum and ad testi candum) or to allow inspection of property or production of other things before a trial, such as documents, without being deposed (subpoena duces tecum). Although Rule 45, SCRCP does not specifically use the terms “trial subpoena” and “discovery subpoena,” both the Rule and the case law contemplate the use of both types of subpoenas.
For example, Rule 45(a)(2), SCRCP states, in relevant part:
A subpoena commanding attendance at a trial or hearing shall issue from the court for the county in which the hearing or trial is to be held. …. [A] subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection shall issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person.
Id. This is important because the court that issued the subpoena for appearance at a trial or hearing is the court where a motion to quash is to be filed. Rule 45(c)(3)(A), SCRCP. The court that issues a subpoena commanding attendance at a deposition or production or inspection is the court where the non-party resides or is employed or regularly transacts business, which then becomes the court that can hold the recipient in contempt for failure to obey the command. Know which Court should be issuing the subpoena and which court should be enforcing the subpoena! Rule 45(e), SCRCP.
Also, Rule 45(b)(1), SCRCP currently states, in the last sentence:
Unless otherwise ordered by the court, prior notice in writing of any of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance.
Remember that in In Re Fabri, 418 S.C. 384, 793 S.E.2d 306 (2016) our Court said, “…we interpret the rule as requiring that notice be given to the opposing party anytime a party issues a subpoena commanding the production of documents regardless of when the documents are commanded to be produced.”
This means for every discovery subpoena you must copy the other side and for every trial subpoena where you are asking for documents to be brought to court you must copy the other side!
While the Court made it clear that notice is required, it did not specify what notice is required; however other states have made it clear that prior notice means simultaneous service and prior to the time for compliance. See e.g., Florida Media, Inc. v. World Publications, LLC, 236 F.R.D. 693 (M.D. Fla., 2006) (“’prior notice’ is satisfied when notice is given simultaneously with the service of the subpoena.) See also, Flanagan, South Carolina Civil Procedure 387 (SC Bar-CLE, 2010), stating that Rule 45 “requires that notice be given other parties if a subpoena requesting production of materials is served on a non-party.”
Rule 45(b)(1) also provides that unless otherwise ordered by the court, prior notice in writing of any commanded production of documents, and things, and inspection of premises before trial, shall be served on each party in the manner proscribed by Rule 5(B) at least ten days before the time specified for compliance. Fabri also quoted with approval the 1991 comment to Federal Rule of Civil Procedure 45(b)(1) regarding the purpose for requiring notice:
The purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or 31. But when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced.
Id. at 389. While the attorney in Fabri tried to argue that hers were trial subpoenas commanding the production of documents at a temporary hearing and hence, not subject to the notice requirement, the Supreme Court agreed with the Hearing Panel that:
It is abundantly clear from the record that Respondent issued the subpoenas as a discovery tool to obtain the financial records of the opposing party because Respondent had not yet received the financial declaration. The subpoenas…were clearly an attempt by Respondent to discover information and not to compel the appearance of a witness at a temporary hearing.
Id. at 391. In short, the Court in Fabri determined that the subpoenas in that case were not true trial subpoenas but instead pre-trial discovery subpoenas. Every discovery subpoena must give at least ten days’ notice! Trial subpoenas only require reasonable notice.
Also, remember, so long as the witness lives within South Carolina there is no geographic restriction on trial subpoenas. Rule 45(c)(3)(A)(ii). However, a witness cannot be compelled to travel more than 50 miles from the county where that person resides, is employed or regularly transacts business in person for a discovery subpoena. Rule 45(c)(3)(A)(ii).
Keep Up with Rules Changes!
The current version of Rule 45(b)(1), SCRCP specifies that subpoenas may be served by any person who is not a party and is not less than 18 years of age but that it must be served in the same manner prescribed for service of a summons and complaint in Rule 4(d) or (j), and, for subpoenas duces tecum, you must copy each party in the manner prescribed by Rule 5(b), SCRCP.
N.B: The Supreme Court has recently concluded a period of public comment on a proposed change to this Rule. The South Carolina Bar has proposed amending Rule 45(b)(1), SCRCP, concerning duces tecum subpoenas. The Bar’s Practice and Procedure Committee proposed an amendment intended to change the "prior notice in writing" requirement to clearly state that each party must be served a copy of the notice and subpoena prior to serving the subpoena on the person to whom the subpoena is directed. (See Appendix B, Practice and Procedure Committee’s Proposed Amendments to Rule 45(b)(1). The Court declined to accept the Bar’s suggested revision and is considering modifying Rule 45 to add a section 4 to part (a):
(4) If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a copy of the subpoena must be served on each party in the manner prescribed by Rule 5(b) at least ten days before the time specified for compliance.
(See Appendix C, Court’s Request for Public Comment). This change would mean that before you serve a pre-trial subpoena duces tecum, you must serve a copy of the subpoena on each party in the manner prescribed by Rule 5(b) at least ten days before the time specified for compliance. (Rule 5(b)(1), SCRCP permits service on a party’s attorney by personal delivering service by mail and specifies that service by mail is complete upon mailing.) As a practical matter, this means you could mail copies of the subpoena one day and then have the subpoena personally served on the target the next day.
Also, don’t forget, after service, the proof of service section must be complete if you expect to be able to ask the Court to enforce it. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. Rule 45(e), SCRCP. Rule 45(b)(3) states that, “Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.”
N.B., while the Rule even with the change permits you to serve a discovery subpoena duces tecum with ten days’ notice, the person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. What this means is that, if a witness is given, say, 30 days’ notice to produce documents, they have 14 days within which to make an objection or else they waive their right to object; if they are given less than 14 days’ notice, they can object all the way up until the time for compliance is up.
The 2015 amendments changed the rule to provide that, “When a witness is subpoenaed to appear at a deposition or hearing, the witness fee and mileage is due to be paid "upon his arrival" ... (Rule 45, SCRCP, (b)(l)). Do not file a motion to quash claiming a subpoena is defective because a check wasn’t tendered with the subpoena at service!
Also, make sure you have subpoena power for the specific matter you are wanting to serve a subpoena. There must be a pending case for you to have subpoena powers. In re Lundgren, 421 S.C. 300, 303, 806 S.E.2d 125, 127 (2017) (no subpoena power after the divorce had concluded).
Many thanks to Jonathan Lounsberry, Melissa Brown, and Michael Taylor for their kind assistance in preparing these materials.
RULE 45
Procedural and Ethical Concerns When Issuing Rule 45 Subpoenas
Subpoena practice is continuously evolving and remains one of the most fraught aspects of trial practice in South Carolina. There have been several amendments to Rule 45, SCRCP in the past few years and there are important amendments currently being considered by our Supreme Court.
Why Should You Care?
We all know that as advocates for our clients, we owe them a duty to pursue their cases zealously and to use every tool in our toolbox to help them achieve their litigation goals. However, we are constrained by our ethical duties and must remain mindful of our obligations as officers of the Court.
As officers of the court, we are empowered to sign subpoenas on behalf of any court where we are admitted to practice. Like the clerks of court, when we sign subpoenas, we are acting as agents of the court and we are wielding the court’s power and not acting in our capacity as advocates. In re Moore, 391 S.C. 627, 629, 707 S.E.2d 422, 423 (2011); Arthur State Bank v. Broom, No. 2015-UP-092, 2015 WL 793120, at *1 (S.C. Ct. App. Feb. 25, 2015) citing Rule 45(a)(3), SCRCP.
Rule 45(c)(1), SCRCP, states that “A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Subpoenas should be focused on the issues before the court and be limited in scope to a relevant time frame. They should be tailored to reach the evidence relevant to the issues before the court.
Our Court does not like it when we abuse the Court’s subpoena power and it has no problem sanctioning attorneys who do not follow the rules. See e.g., the public reprimands issued in In Re Owen, 422 S.C. 16, 809 S.E.2d 231 (2018) and In Re Fabri, 418 S.C. 384, 793 S.E.2d 306 (2016) where our Court took an extremely dim view of attorneys failing to copy opposing counsel on discovery subpoenas but signing the subpoenas certifying that they had complied with Rule 45. This is true even where the Rules are unclear, and the case law is not settled. If you do not follow Rule 45 carefully or you demand an unreasonable amount of information, you may face not only ethics charges but sanctions by the Court!
Courts have the inherent power to impose sanctions. See Schlaifer Nance & Amp v. Estate of Warhol, 194 F.3rd 323 at 336 (2nd Cir., 1999) (When imposing sanctions pursuant to its inherent powers, the court must find that the conduct in question was without colorable basis and undertaken in bad faith, i.e., motivated by improper purpose such as harassment or delay). Moreover, Rule 45(c)(1), SCRCP, itself provides:
The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
This means both you and your client could be sanctioned by the Court if you don’t follow the rules! (That’s right, you can be investigated and possibly sanctioned by the Bar for guessing wrong about how Rule 45 will later be interpreted by a court!)
How Do We Stay Out of Trouble?
Start with the Basics! Read the rule every time and always check the Court’s website to be sure you’re using the most current version of the Rule and the form provided by the Court. The Family Court subpoena form is available at https://www.sccourts.org/forms/pdf/SCCA254F.pdf. (See also Appendix A to these materials). Download and use the most current version of the form and include all the pages. Your subpoena is not valid unless it includes all parts including the notice of rights! In re Lundgren, 421 S.C. 300, 303, 806 S.E.2d 125, 127 (2017).
Know What Kind of Subpoena You’re Sending
There are two types of subpoenas, a subpoena ad testi candum (to appear and present testimony) and a subpoena duces tecum (to produce documents or allow inspection of things). Both types of subpoenas are employed in one of two situations: before trial and at trial.
A “trial subpoena” is a command for a person to appear at a trial (a regular subpoena ad testi candum) or appear at trial with documents or other things and to testify (a subpoena duces tecum and ad testi candum). A “discovery subpoena” is a command for an individual to appear at a pre-trial deposition, either by himself (a regular subpoena ad testi candum) or with documents or other things (subpoena duces tecum and ad testi candum) or to allow inspection of property or production of other things before a trial, such as documents, without being deposed (subpoena duces tecum). Although Rule 45, SCRCP does not specifically use the terms “trial subpoena” and “discovery subpoena,” both the Rule and the case law contemplate the use of both types of subpoenas.
For example, Rule 45(a)(2), SCRCP states, in relevant part:
A subpoena commanding attendance at a trial or hearing shall issue from the court for the county in which the hearing or trial is to be held. …. [A] subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection shall issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person.
Id. This is important because the court that issued the subpoena for appearance at a trial or hearing is the court where a motion to quash is to be filed. Rule 45(c)(3)(A), SCRCP. The court that issues a subpoena commanding attendance at a deposition or production or inspection is the court where the non-party resides or is employed or regularly transacts business, which then becomes the court that can hold the recipient in contempt for failure to obey the command. Know which Court should be issuing the subpoena and which court should be enforcing the subpoena! Rule 45(e), SCRCP.
Also, Rule 45(b)(1), SCRCP currently states, in the last sentence:
Unless otherwise ordered by the court, prior notice in writing of any of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance.
Remember that in In Re Fabri, 418 S.C. 384, 793 S.E.2d 306 (2016) our Court said, “…we interpret the rule as requiring that notice be given to the opposing party anytime a party issues a subpoena commanding the production of documents regardless of when the documents are commanded to be produced.”
This means for every discovery subpoena you must copy the other side and for every trial subpoena where you are asking for documents to be brought to court you must copy the other side!
While the Court made it clear that notice is required, it did not specify what notice is required; however other states have made it clear that prior notice means simultaneous service and prior to the time for compliance. See e.g., Florida Media, Inc. v. World Publications, LLC, 236 F.R.D. 693 (M.D. Fla., 2006) (“’prior notice’ is satisfied when notice is given simultaneously with the service of the subpoena.) See also, Flanagan, South Carolina Civil Procedure 387 (SC Bar-CLE, 2010), stating that Rule 45 “requires that notice be given other parties if a subpoena requesting production of materials is served on a non-party.”
Rule 45(b)(1) also provides that unless otherwise ordered by the court, prior notice in writing of any commanded production of documents, and things, and inspection of premises before trial, shall be served on each party in the manner proscribed by Rule 5(B) at least ten days before the time specified for compliance. Fabri also quoted with approval the 1991 comment to Federal Rule of Civil Procedure 45(b)(1) regarding the purpose for requiring notice:
The purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or 31. But when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced.
Id. at 389. While the attorney in Fabri tried to argue that hers were trial subpoenas commanding the production of documents at a temporary hearing and hence, not subject to the notice requirement, the Supreme Court agreed with the Hearing Panel that:
It is abundantly clear from the record that Respondent issued the subpoenas as a discovery tool to obtain the financial records of the opposing party because Respondent had not yet received the financial declaration. The subpoenas…were clearly an attempt by Respondent to discover information and not to compel the appearance of a witness at a temporary hearing.
Id. at 391. In short, the Court in Fabri determined that the subpoenas in that case were not true trial subpoenas but instead pre-trial discovery subpoenas. Every discovery subpoena must give at least ten days’ notice! Trial subpoenas only require reasonable notice.
Also, remember, so long as the witness lives within South Carolina there is no geographic restriction on trial subpoenas. Rule 45(c)(3)(A)(ii). However, a witness cannot be compelled to travel more than 50 miles from the county where that person resides, is employed or regularly transacts business in person for a discovery subpoena. Rule 45(c)(3)(A)(ii).
Keep Up with Rules Changes!
The current version of Rule 45(b)(1), SCRCP specifies that subpoenas may be served by any person who is not a party and is not less than 18 years of age but that it must be served in the same manner prescribed for service of a summons and complaint in Rule 4(d) or (j), and, for subpoenas duces tecum, you must copy each party in the manner prescribed by Rule 5(b), SCRCP.
N.B: The Supreme Court has recently concluded a period of public comment on a proposed change to this Rule. The South Carolina Bar has proposed amending Rule 45(b)(1), SCRCP, concerning duces tecum subpoenas. The Bar’s Practice and Procedure Committee proposed an amendment intended to change the "prior notice in writing" requirement to clearly state that each party must be served a copy of the notice and subpoena prior to serving the subpoena on the person to whom the subpoena is directed. (See Appendix B, Practice and Procedure Committee’s Proposed Amendments to Rule 45(b)(1). The Court declined to accept the Bar’s suggested revision and is considering modifying Rule 45 to add a section 4 to part (a):
(4) If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a copy of the subpoena must be served on each party in the manner prescribed by Rule 5(b) at least ten days before the time specified for compliance.
(See Appendix C, Court’s Request for Public Comment). This change would mean that before you serve a pre-trial subpoena duces tecum, you must serve a copy of the subpoena on each party in the manner prescribed by Rule 5(b) at least ten days before the time specified for compliance. (Rule 5(b)(1), SCRCP permits service on a party’s attorney by personal delivering service by mail and specifies that service by mail is complete upon mailing.) As a practical matter, this means you could mail copies of the subpoena one day and then have the subpoena personally served on the target the next day.
Also, don’t forget, after service, the proof of service section must be complete if you expect to be able to ask the Court to enforce it. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. Rule 45(e), SCRCP. Rule 45(b)(3) states that, “Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.”
N.B., while the Rule even with the change permits you to serve a discovery subpoena duces tecum with ten days’ notice, the person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. What this means is that, if a witness is given, say, 30 days’ notice to produce documents, they have 14 days within which to make an objection or else they waive their right to object; if they are given less than 14 days’ notice, they can object all the way up until the time for compliance is up.
The 2015 amendments changed the rule to provide that, “When a witness is subpoenaed to appear at a deposition or hearing, the witness fee and mileage is due to be paid "upon his arrival" ... (Rule 45, SCRCP, (b)(l)). Do not file a motion to quash claiming a subpoena is defective because a check wasn’t tendered with the subpoena at service!
Also, make sure you have subpoena power for the specific matter you are wanting to serve a subpoena. There must be a pending case for you to have subpoena powers. In re Lundgren, 421 S.C. 300, 303, 806 S.E.2d 125, 127 (2017) (no subpoena power after the divorce had concluded).
Many thanks to Jonathan Lounsberry, Melissa Brown, and Michael Taylor for their kind assistance in preparing these materials.
