CLE Materials

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Super CLE, February 8, 2021

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.

Steven Spitz, Esquire

A Quick Review of Fundamental Equity Principles
By Stephen Spitz
Spitz & Neville
151 Meeting Street, Suite 350
Charleston, SC 29401
Phone (843) 414-5085
www.spitzandneville.com

Ten Equitable Maxims

1. Equity will not suffer a wrong to be without a remedy;1
2. Equity normally acts in personam not in rem;2
3. Equity follows the law;3

1 But consider Key Corporate Capital v. County of Beaufort, 602 S.E.2d 104 (S.C. Ct. App. 2004) where on further review the Court of Appeals was squarely reversed by the Supreme Court by that Court’s conclusion that the maxim was not relevant on the facts of the case. But, also consider that some of the members of the Court of Appeals that decided the Key Corporate case are now on the Supreme Court raising the question which case is truly precedent.
2 See Thornton v. Thornton, 492 S.E.2d 86 (S.C. 1997) (squarely recognizing this maxim).
3 There are well recognized restraints on equity. Often, where the rights of the parties are expressly created by statute, the South Carolina Supreme Court declines to invoke an equitable remedy. See, for example, Santee Cooper v. S.C. Public Service Commission, 379 S.E.2d 119 (S.C. 1989). The rule is typically expressed that equity has no role to play unless the legal remedy is “inadequate” – or said in different words, a legal remedy is adequate when it exists and when it fits the situation. See Key Corporate Capital, 644 S.E.2d 675 (S.C. 2007) (A court’s equitable powers must yield in the face of an unambiguously worded statute).

4. Equity is equality;4
5. Equity regards as done what ought to be done;5
6. Equity regards substance rather than form;6

4 A court of equity often seeks to secure equality among persons who are equally obligated or who are equally entitled to claim a benefit. Instances of the application of this maxim may be found in the law of contribution and other situations.
5 The Court regards as done that which, in fairness and good conscience, ought to be or should have been done. But there are limits – See American General Financial Services, Inc. v. Brown, 658 S.E.2d 99 (S.C. 2008) where the South Carolina Supreme Court held that the lower courts simply lack the discretion, in the matter of a mortgagee’s deficiency judgment, to outright deny such a deficiency judgment when (1) the complaint prays for a personal deficiency judgment; (2) the amount of the debt is fixed in the foreclosure decree; and (3) the sale is insufficient to satisfy the entire debt. See also Wachovia Bank v. Coffey, 746 S.E.2d 35 (S.C. 2013) discussing the meaning of this equitable maxim.
6 See, Regions Bank v. Wingard Properties Inc., 745 S.E. 348 (S.C. Ct. App. 2011) discussing equitable maxims in general and the equitable maxim, in particular, substance over form. We will talk about this case at the CLE and its continued relevance. See also Johnson v. Johnson, 372 S.E.2d 107 (S.C. Ct. App. 1988) (If the end result is equitable . . . specific factors found by the lower court, even if wrong, are irrelevant). Time permitting, we will discuss these two cases.

7. Equity disfavors forfeitures;7
8. One who seeks equity should do equity;
9. One who seeks equity should have clean hands; and
10. Equity does not favor those who sleep on their rights.8

7 See Kirkiakides v, United Artists Communications, Inc., 440 S.E.2d 384 (S.C. 1994) (the amount of rent past due was only $4,732, out of a total yearly rent fee of $59,379; the tenant’s breach was inadvertent, and not in bad faith, the tenant attempted to quickly cure as soon as the tenant was aware of the default, tenant had more than 20 years remaining on the lease, and the value of its improvements to the leasehold had already been S1,200,000 dollars. This is an important case, and time permitting, we will certainly discuss in the CLE.
8 The doctrine of laches is a very familiar one.

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.

Barbara Seymour, Esquire: Resilience Training for Lawyers

Clawson and Staubes, LLC
(800) 774-8242
barbara@cslaw.com

Momsense: Practical Advice About Taking Responsibility,
Building Resilience, and Being a Better Lawyer

“The green reed which bends in the wind is stronger than the mighty oak which breaks in a storm.” ― Confucius

What is Emotional Resilience?

The American Psychological Association defines resilience as a process that enables us to bounce back from adversity in a healthy way.

“Resilience is the ability to bounce back in the face of setbacks or challenges, emerging stronger, wiser and more powerful from the experience.” Link Christin,[1] Survival Skill No. 1 for Lawyers: Emotional Resilience.

“Resilience is a person’s capacity for stress-related growth.” Paula Davis-Laack,[2] 5 Things Resilient Lawyers Do Differently, Wisconsin Lawyer, Vol. 19, No. 2 (February 2018)

Lawyers and Emotional Resilience

Lawyers score very low when it comes to resilience.

On a scale of 0 to 100, with 0 being least resilient and 100 being most resilient:
- General population = around the 50th percentile
- Lawyers = around the 30th percentile

90% of lawyers fall below the 50% level. [3]

Dr. Larry Richard, LawyerBrain, LLC:
“By both our nature and our training, lawyers focus on what can go wrong, on what’s broken, on what possible problems exist. For most lawyers, negative thinking is quite necessary in order to do a good job in representing a client. That’s the problem–the people who are attracted into the legal profession think more negatively than the general public to begin with. Studies show that those with lower levels of negativity drop out of both law school and out of the profession, thus concentrating the more highly negative thinkers. That negativity gets further reinforced when you work every day in a negative climate where negative thinking is rewarded. All this negativity takes a toll.”
How Do Lawyers Build Resilience?
Level of Resilience ≠ Capacity for Resilience

We can build resilience, all we need are the tools.

The Path to Lawyer Well-Being: Practical Recommendations for Positive Change published by the National Task Force on Lawyer Well-Being (August 2017):

“Our capacity for resilience derives from a host of factors, including genetics and childhood experiences that influence the neurobiology of our stress response—specifically, whether the stress response is both activated and terminated efficiently. But resilience also derives from a collection of psychological, social, and contextual factors—many of which we can change and develop. These include, for example, optimism, confidence in our abilities and strengths (self-efficacy), effective problem-solving, a sense of meaning and purpose, flexible thinking, impulse control, empathy, close relationships and social support, and faith/spirituality.”

Tips from My Mom for Developing Resilience:

(1)Make yourself useful.

Translation: You will find meaning and purpose in contributing to something greater than yourself.

The National Task Force on Lawyer Well-Being:

“Research has found that feeling that our lives are meaningful is important for physical and psychological wellness. It provides a buffer against stress. For example, meaning in life is associated with a reduced risk of anxiety, depression, substance use, suicidal ideation, heart attack, and stroke; slower cognitive decline in Alzheimer’s patients; and lower overall mortality for older adults. For many lawyers, an important part of building a meaningful life is through meaningful work. Experiencing our work as meaningful means that we believe that our work matters and is valuable. A large body of research shows that meaningfulness plays an important role in workplace well-being and performance. Evidence suggests that the perception of meaningfulness is the strongest predictor of work engagement.”

(2)You’ll get your reward in heaven.

Translation: Do good work for the sake of doing good work.

“The highest reward for man’s toil is not what he gets for it, but what he becomes by it.” – John Rushkin

Studies have shown that people who are willing to delay gratification are more successful, less likely to suffer from substance abuse, are more physically fit, respond better to stress, and have better social skills.[4]

(3)I gave the maid the day off.

Translation: You made this mess, it’s up to you to clean it up.

(4)Confession is good for the soul.

Translation: Coming clean is painful, but sometimes it is exactly what we need to do to feel better.

Paula Davis-Laack, Davis Laack Stress & Resilience Institute:

“[Resilient lawyers] know the difference between perfectionism and striving for excellence. Psychologists define perfectionism as a ‘multidimensional personality trait characterized by striving for flawlessness and setting exceedingly high standards of performance accompanied by overly critical evaluations of one’s behavior,’ and it includes a range of dimensions.”

Perfectionistic strivings = aspects of perfectionism that are self-oriented, internally focused and are associated with having high standards.

Perfectionistic concerns = aspects of perfectionism that are outwardly-oriented, other-focused and are associated with worries about making mistakes and the fear of what people will think.

“Perfectionism generally can be associated with a number of negative outcomes, but it’s perfectionistic concerns that are the bigger problem. Perfectionistic concerns drive higher levels of anxiety, burnout, less healthy coping strategies and a rigid, all or nothing mindset. In addition, perfectionistic concerns are linked to defensiveness (note the link between defensiveness and low resilience mentioned above), finding fault with yourself and others (lawyers jump at the chance to spot misstatements, misspellings or flaws and see it as vitally important to correct people when they make a mistake), inflexibility, excessive need for control and not being able to trust others with your work.”

(5)It will come out in the wash if you don’t let it set.
Translation: This is bad, but it’s not the end. You can chose to let it defeat you or you can learn from it and move on.
Link Christin, Survival Skill No. 1 for Lawyers: Emotional Resilience:
“Throughout the course of their careers, lawyers will face a predictable string of setbacks and challenges. It’s the nature of practicing law: Two lawyers go before a judge and only one will prevail. Lawyers will respond differently to this winner-take-all environment. They may feel beaten down, pessimistic and burnt out — their self-esteem and confidence diminished, and their professional well-being compromised. Or they become resilient, learning from the setback without internalizing the loss.”
The National Task Force on Lawyer Well-Being:

“[A]mong the most important of the personal competencies is optimistic explanatory style, which is a habit of thought that allows people to put adverse events in a rational context and not be overwhelmed by catastrophic thinking. The principal strategy for building optimistic explanatory style is by teaching cognitive reframing based on cognitive behavioral therapy research. The core of the technique is to teach people to monitor and dispute their automatic negative self-talk. Neurobiology scholars recently have argued that this capacity is so important to our regulation of stress that it constitutes the cornerstone of resilience.”

(6)If you don’t like it, there’s a McDonald’s down the street.

Translation: Be grateful for what has been given to you, but if you’re not happy, it’s up to you to make a change.
“'[P]ositive psychology” (which seeks to cultivate human strengths, rather than focus on human weaknesses), offers coping strategies to reduce unhappiness, and can be adapted successfully to the legal setting." Martin E.P. Seligman, Paul R. Verkuil & Terry H. Kang, Why Lawyers Are Unhappy, 23 Cardozo L. Rev. 33, 34, 35 (2001)
“Positive Psychology concerns the scientific study of the three different happy lives that correspond to . . . three desires: the Pleasant Life, the Good Life, and the Meaningful Life." Martin E.P. Seligman, Can Happiness Be Taught?, Daedalus, 2004
Seligman’s Three Blessings Exercise:

Each night before going to sleep, think about the events of the day.
Write down three things that went well.
Write down your thoughts about why each thing went well.

(7)Don’t say “shut up.”

Translation: Be nice to people, you will need them someday.

Lawyers and relationships:

Very high levels of skepticism = 90th percentile
Very low levels of sociability = 12th percentile[5]

Law is ranked as the loneliest profession.

The negative health impact of loneliness is the equivalent of smoking15 cigarettes per day.

Paula Davis-Laack:

“Lawyers cultivate high-quality relationships by paying attention to their ‘relational energy.’ Relational energy is how much your interactions with others motivate, invigorate and energize, rather than drain or exhaust. Not surprisingly, research showed that a person’s relational energy network predicted both job performance and job engagement better than networks based on influence or information.”

[1] Link Christin is Executive Director of the Legal Professionals Program at Caron Treatment Centers.

[2] Paula Davis-Laack is Founder and CEO of the Davis Laack Stress & Resilience Institute, where she trains lawyers and other professionals to increase their capacity for resilience.

[3] Dr. Larry Richard is founder and Principal Consultant at LawyerBrain, LLC, and writes extensively on lawyer wellbeing.

[4] James Clear, 40 Years of Stanford Research Found that People with this One Quality are More Likely to Succeed, www.jamesclear.com.

[5] Richard, Larry. Herding Cats: The Lawyer Personality Revealed, Altman Weil Report to Legal Management, Vol. 29 No. 11 (August 2002)

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.

Case Merits & Recognizing The Elements

Obviously, you must simultaneously evaluate both the potential client and her case. Before the potential client even comes into your office, you should first determine: whether or not the potential client has a strong case; whether or not the potential client can satisfy the elements of each cause of action; and can the potential client support each element with evidence? From the first meeting until the conclusion of the case, you must always keep the elements of the case in mind as the legal framework for analysis.

    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.

Kathleen C. Barnes, Esquire

Panel/Appellate Case Law Update
I.Appellate Case Law Update with discussion of case facts and important procedural and substantive holdings from 2020 appellate opinions *(cases to be added as opinions are released up until the CLE)*
a.Procedure
i.South Carolina Human Affairs Commission v. Zeyi Chen & Zhirong Yang, 2020 LEXIS 116 (July 22, 2020) – Rule 43(k), SCRCP, is mandatory and substantial compliance is not sufficient
ii.Ex Parte Builders Mutual Ins. Co., Op. No. 27972 (Sup. Ct. Aug. 12, 2020)
iii.Nexstar Media Group, Inc. v. Davis Roofing Group, LLC, 2020 S.C. App. LEXIS 100 (Ct. App. Aug. 26, 2020)
b.Arbitration

Damico v. Lennar Carolinas, LLC, 430 S.C. 188 (Ct. App. 2020)

ii.Doe v. TCSC, LLC, 2020 WL 3551780 (Ct. App. July 1, 2020)
iii.Masters v. KOL, Inc., 2020 S.C. App. LEXIS 72 (Ct. App. July 22, 2020)
iv.Weaver v. Brookdale Senior Living, Inc., 2020 S.C. App. LEXIS 74 (Ct. App. July 29, 2020)

Grant v. Chevrolet, 2020 S.C. App. LEXIS 79 (Ct. App. Aug. 12, 2020)

c.Substantive Law
i.Insurance

Progressive Direct Ins. Co. v. Groves, 2020 S.C. App. LEXIS 71 (July 22, 2020)
Connelly v. The Main Street America Group, 2020 S.C. App. LEXIS 77 (Ct. App. Aug. 12, 2020)
State Farm Mut. Auto. Ins. Co. v. Windham, 2020 S.C. App. LEXIS 90 (Ct. App. Aug. 19, 2020)

II.Appellate Court Procedure during COVD-19

Amended filing and service rules

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.

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).

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).

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.