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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.
Aaron J. Angell, Esquire and Kevin N. Molony, Esquire Angell & MolonyCollecting Judgments
First Things First: 1) Make sure debtor is not dead or bankrupt. 2) Check priority of judgment - check all name variations - call the Clerk's office - check all counties in which debtor owns an interest in real property - fear not! if your priority stinks, it is not over yet 3) Conduct Extensive Asset Search on all debtors. 4) File Notice of Appearance and Execution, request Nulla Bona 5) Formal Discovery can begin if no known assets 6) Prepare and File Affidavit, Petition and proposed Rule to Show Cause Asset Search = Everything Real Property, Personal Property, Transfers, Business Associations Filings 1. E-file an Execution in each county Debtor(s) owns real property; 2. Send the Execution, along with a $25.00 check, to the Sheriff’s Office; •Include a cover letter requesting the Sheriff’s Office stamp the Execution with a “Nulla Bona” response so that supplemental proceedings can begin 3. Prepare an Affidavit, Petition and Proposed Rule to Show Cause; secure a date for the Rule to Show Cause hearing & include that date in your Proposed Rule to Show Cause; 4. Depose the Debtor(s) prior to the Rule to Show Cause hearing to ensure you’re not wasting the Court’s time and to streamline the process •- Enter every judgment collection case with the goal of working with opposing counsel, or the debtor, to come up with a REASONABLE settlement •- Subpoena bank account records and follow the money •- Follow the cash to blow up the B.S. •- Receivers can be instrumental •- Contingency based receivers allow aggressive pursuit with no risk Sam Bauer, Esquire Bauer & MetroPrivacy and Smart Phones
4th Amendment to the U.S. Constitution •The right of the PEOPLE to be secure in their persons, houses, papers and effects, •Against UNREASONABLE searches and seizures, shall not be violated, and •NO Warrants shall issue, but upon PROBABLE CAUSE, supported by OATH or affirmation. •No express privacy right. Right to Privacy created by the penumbra of the First, Third, Fourth and Fifth Amendment. THE RIGHT OF THE PEOPLE •Why is there a search warrant requirement. •Is justice served when we know it but can’t prove it. (or why the law isn’t always truth seeking). Neutral Magistrate •Judges are Not Vending Machines. •Judges should not be “captured by the system” •A Judge belongs to no one. A Judge is an island in the storm of competing arguments whose anchor is simply, the law. •A Judge is not there to issue search warrants: the default is “NO”. What is Probable Cause •ILLINOIS V. GATES: Probable Cause is a practical common sense determination of whether, under the totality of the circumstances, there is a fair probability that evidence of a crime will be found in a certain place. •Hinges on RELIABILITY of the source, and •BASIS OF KNOWLEDGE The Affidavit Requirement •Imposed by §17-13-140. Not a Constitutional requirement. •May be supplemented by sworn oral testimony, but . . .try to avoid –Memories fail –Judges retire and expire. (Lessons from a Death Case) –Correcting a typo in the original affidavit is not the same as correcting false information in the affidavit –Judges can ask AND SHOULD ask questions. STATE v. DILL Opinion No.: 27816. Filed: June 20, 2018 •Affidavit: Laurens County Sheriff’s Office has received information in the last 72 house that at the above listed location an active methamphetamine lab is in operation. A Confidential informant . . was at this location and did see numerous items that are used in the manufacturing of Methamphetamine. •Oral Testimony: The CI was reliable and had been used in two prior cases in which arrests have been made. •The search found no meth and no active meth lab. •State refused to disclose the identity of the informant. •State next argued that the CI was really just a tipster (no requirement to disclose). •Dill argued that first part of the affidavit stating “active meth lab” was not the same as “items could be used to make meth”. •RULING: The affidavit and oral testimony, even if all true, failed to establish probable cause. •Conclusory Statement: ACTIVE METH LAB •Items could be used to make meth.: –What were they and what was being done with them •Did not state who provided the information. –Not verified by law enforcement through surveillance or otherwise. Source of “active lab”? Riley v. California •Supreme Court 2014 •Original Stop was for expired tags. During Stop determined that he was also DUS. •Inventory Search found 2 guns concealed under the hood. •Search incident to arrest resulted in seizure of the Riley’s smart phone. •Officers noticed that several of Riley’s contacts were labeled as CK (Members of the Bloods). •Officers watched all of his videos and saw videos of people referring to each other as “Blood”. •Officers looked at all of his photos and saw Riley next to a car that had been used in a drive by shooting. •Riley was charged with Attempted Murder •(Also look at the facts of United States v. Wurie. The companion case to Riley) •Officers noticed that several of Riley’s contacts were labeled as CK (Members of the Bloods). •Officers watched all of his videos and saw videos of people referring to each other as “Blood”. •Officers looked at all of his photos and saw Riley next to a car that had been used in a drive by shooting. •Riley was charged with Attempted Murder •(Also look at the facts of United States v. Wurie. The companion case to Riley) •The ultimate touchstone of the Fourth Amendment is “reasonableness.” (Brigham City v. Cornelius). •“Where a search is undertaken by law enforcement to discover evidence of criminal wrongdoing , reasonableness generally requires the obtaining of a judicial warrant.” •A warrant ensures that the inferences to support a search are drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (Johnson v. United States) •“In the absence of a warrant, a search is reasonable only if it falls withing a specific exception to the warrant requirement.” (Kentucky v. King) •Once an arrest has been made a search incident to arrest needs no additional justification. (United States v. Robinson) (Court likes bright line rules for policing). •ARGUMENT 1: Government argues that the search of the cell phone is merely a search incident to arrest. •ARGUMENT 2:An arrestee has a diminished privacy interest = a greater search is reasonable. •ARGUMENT 3:Government also tries to shoehorn in exigent circumstances with a “remote wiping” argument. [this argument gets no traction] •RESPONSE 3: No evidence this has ever happened in a any case and just buy Faraday Bags. •RESPONSE 2: The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out the picture entirely. Not every search is acceptable solely because a person is in custody. •RESPONSE 1: Smart phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” •The “vast quantities of personal information” make a search of the phones contents clearly unlike the limited intrusion contemplated by Robinson. •“Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read – nor would they have reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort that would require a search warrant. “ •TOO Much can be learned about a person by a search of his cell phone. –Smart phones collect many distinct types of information: photos, addresses, prescriptions, bank records. –The enormous storage capacity allows for more data of any given one type. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations and descriptions.” –The data on the phone has no limits as to age: carrying a record of all his communications with his wife going back years. –Internet browsing history reveals in individual’s private interests or concerns: symptoms of a disease, searches on webMD, where the person has been including specific movements down to the minute. And their family, political, professional, religious, and sexual associations. –The apps a person chooses to install form a montage of their lives. •“American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives from the mundane to the intimate.” (Ontario v. Quon) •When you are searching the phones data, what and where are you searching. –Local v. remote storage –To the user it makes no difference whether they are accessing local information of cloud stored. –In many applications the storage location of the data is not visible at the time of access. –“Such a search would be like finding a key in a suspect’s pocket and arguing it allowed law enforcement to unlock and search his house.” •If police are to have workable rules, they must, in large part be done on a categorical basis – not in ad ad hoc, case-by-case fashion. (Michigan v. Summers). •Privacy comes at a cost. (Anti truth seeking again). •A warrant is generally required before a cell phone search, even when a phone is seized incident to arrest. (but other exceptions may apply). •“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”. The fact that technology now allows an individual to to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. “ •“Our answer to the question posed is simple – get a warrant” Carpenter v. United States •U.S. Supreme Court (June 22, 2018) •Cell phones constantly scan their environment looking for the strongest cell signal or wireless access point. •Each time it connects it creates a time stamped record: “cell-site location information” (CSLI). •Wireless companies store the CSLI data for years. •Carpenter was a suspect (with a large group) in a series of robberies that spanned a 4 month period. •Prosecutors used the Stored Communications Act to demand CSLI data from Carpenters cell carrier for –152 days of data from MetroPCS –7 days of data from Sprint •The records “clinched the case: Carpenter was right where the robbery was at the exact time of the robbery.” •“4th Amendment seeks to secure the privacies of life against arbitrary power” (Boyd v. U.S.) •The aim of the framers was “to place obstacles in the way of a too permeating police surveillance.” (U.S. v. Di Re) •Government argued U.S. v. Knotts (1983): a beeper placed in a jar was used by police to track Knotts vehicle intermittently for a 24 hour period. “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy. •Government argued U.S. v. Miller (1976): a person does not have an expectation of privacy in records held by a third party (bank records). •Society’s expectation has been that law enforcement would not and simply could not secretly monitor and catalogue every single movement of an individual’s life.” •Mapping a cell phones location over 127 days provides too complete a picture of a persons life “familial, political, professional, religious, and sexual associations” •Unlike a beeper in a car (Knotts) or even a car’s GPS signal (United States v. Jones), a person’s cell phone is almost a part of their anatomy. •“This case isn’t about ‘using a phone’ or a person’s movements at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment over several years.” •Unlike the bank records in Miller, the phone is creating a record without Carpenter doing anything active. •Held: This is a “search” as contemplated by the 4th Amendment : a warrant is therefore required. State v. Brown Opinion No.: 27814 Filed: June 13, 2018 •4th Amendment to the U.S. Constitution creates a floor not a ceiling to the our protection. The Constitution protects from UNREASONABLE searches. •Reasonableness depends on a “reasonable expectation of privacy”. •South Carolina Constitution Section 10 specifically includes a right to privacy: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures AND UNREASONABLE INVASIONS OF PRIVACY shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation.” •Mistake 1: Burglar left his cell phone behind at the scene of the crime. •Mistake 2: Burglar chose his own photo as the lock screen background. •Mistake 3: Burglar chose 1 2 3 4 as his password. The Detectives opened the phone without a warrant. •Abandoned property has no protections from either search or seizure under the 4th Amendment. •Brown sought to distinguish the abandoned phone from the digital information stored on it. (Riley v. California 2014). •Riley does not alter the standard for abandoned property. •The Password: “locking the container” demonstrated an initial expectation of privacy. •Court reasoned that the phone was not intentionally left behind so there was a lingering expectation of privacy. •The phone was in evidence for 6 days during which Brown did nothing to retrieve his phone. Brown did nothing to retain the privacy of his cell phone. = ABANDONED •The Brown Court upholds a portion of the dissenting opinion from the Court of Appeals: “Law enforcement must obtain warrants to search cell phones, even in cases when a persons’ expectation of privacy is diminished.” •In this case Brown’s expectation of privacy was not reasonable. •Court punted the issue of the default password. 4th Amendment Applies Only to Government Action •If not a governmental search then the Fourth Amendment is not an issue. •Consent is Consent. Always better than a subpoena. Call Detail Records •Record of –Called number –Length of call (not rounded up to the next minute like a bill) –Call attempts even is not connected –Cell Tower location. –SMS sent to a number •SMS content for a short period of time •AT&T, Verizon, T-Mobile and Sprint have publicly confirmed that they delete their copies of messages after delivering them. –That data has been sent or received (not what data) NOT PROTECTED BY THE STORED COMMUNICATIONS ACT. FOR EVERYTHING ELSE YOU NEED THE PHONE •Most text messages are user to user encrypted. Deleted doesn’t mean deleted on flash memory •Deleting a file un-allocates the storage space. Ready to be over written when needed. •Storage capacity is now massive so over writing may never happen The Value of Synched Devices •When more than one device shares an Apple ID, each device can have copies of: –Texts –Contact Information –Photographs –Emails –Messenger Apps •Each Synched Device is a gold mine. Passcodes •If you can get the passcode, then use it. Proof of consent. •Older iPhones can be cracked in seconds. •Newer iPhones can’t be cracked. (Yes they can. Cellbright does it every day. Theoretically work only with the Government. If you need it done, call LARS DANIEL ) •Androids can’t be cracked but they can be accessed. A bootloader can open everyfile and access unallocated space but it is a destructive process. Messaging Apps •SMS and Text messages are stored on the phone until actually overwritten •Facebook Messenger can be more difficult, but still possible. •Snapchat is the most secure if the message and photo is set to self-destruct on viewing. But can be rebuilt by hand. Location at time of a call •Works even if the outgoing call is not completed. •No longer requires cell tower triangulation •If not GPS recorded, using the detail records, and then drive testing the towers, we can tell you within 150 where the phone was when the call was made. (creates radio frequency map from the towers). Get an Expert •Do not scroll through the phone. You will change the status of messages and texts. •Expert needs to be a Forensic Expert not a tech expert. [There is no governance in who can claim to be an expert]. •Ask how they produce a report of unallocated space? •Ask the Expert what forensic tools they use. –Good ones are extremely expensive. –Do they have time to take your case. –Ask them foundational questions (how often have you been qualified as an expert witness). –The tools used need to stand up to Daubert or Frye standards. –They need to be able to explain how the results were produced, not simply the computer generated a report. –Make sure that both you and they understand the limits of what reports can show: “The device downloaded or accessed X content”; not “Jim downloaded or accessed the content”. SAMPLE CELL PHONE PRESERVATION LETTER September 29, 2020 Admiral Tortfeasor TORTFEASORS -R- US 100 Punitive Damages Way Hilton Head, SC 29928 Re: Notice to Preserve Electronic Evidence [Legal Matter] Dear Admiral Tortfeasor: Our law firm represents Penelope Victim in the above legal matter in which Tortfeasors -R- Us will be named as a defendant. This letter requests your immediate action to preserve electronically stored information that may contain evidence important to the above legal matter. Briefly, the matter involves [short statement of facts in case]. This notice applies to your cell phone, cell phone backups, removable electronic media, and computer systems. This includes, but is not limited to, e-mail and other electronic communications; electronically stored documents, records, images, graphics, recordings, spreadsheets, databases; calendars, system usage logs, contact manager information, telephone logs, internet usage files, deleted files, cache files, user information, and other data. Further, this notice applies to archives, backup and disaster recovery tapes, discs, drives, cartridges, voicemail and other data. All operating systems, software, applications, hardware, operating manuals, codes, keys and other support information needed to fully search, use, and access the electronically stored information must also be preserved. The importance of immediate action cannot be overstated. Electronically stored information is easily corrupted, altered, and deleted in normal daily operations. Even booting an electronic device, running an application, or reviewing a document can permanently alter evidence. The cell phone should be powered off, sealed inside of an evidence container, and placed in secure evidence storage until such a time whereas a cell phone forensics expert can create a forensic image of the device. Full chain of custody should also be kept. Further, any external media or computer system used to create backups of the cell phone should also be powered off according to digital forensics best practices, placed into sealed evidence containers, and securely stored until forensic images of the evidence items can be created. Full chain of custody should also be kept. Online accounts associated with the cell phone, including but not limited to, social media accounts, application based accounts, cloud data storage accounts, email accounts, messaging accounts, and/or any other application than can beaccessed via the cell phone device should be preserved. This preservation notice covers the above items and information between the following dates: January 1 -15, 2020. Follow the above procedures to preserve electronic information created after this notice. Current law and rules of civil procedure clearly apply to the discovery of electronically stored information just as they apply to other evidence, and confirm the duty to preserve such information for discovery. You, Tortfeasors -R- Us and your officers, employees, agents, and affiliated organizations must take all reasonable steps to preserve this information until this legal matter is finally resolved. Failure to take the necessary steps to preserve the information addressed in this letter or other pertinent information in your possession or control may result in serious sanctions or penalties. Further, to properly fulfill your preservation obligation, stop all scheduled data destruction, electronic shredding, rotation of backup tapes, and the sale, gift or destruction of hardware. Notify all individuals and affiliated organizations of the need and duty to take the necessary affirmatives steps to comply with the duty to preserve evidence. With kind regards, Samuel C. Bauer Call Detail Records - What you should get in discovery from opposing counsel Subpoena responses and warrant returns from wireless phone companies will contain specific files that are delivered via email, on disk or via a secure web portal. It is very important that you received all of the files returned to the requester. Also, copies of the original subpoena and or warrant with the affidavit are very helpful for your expert. There are spreadsheets and documents that provide such information as subscriber information; the call detail records themselves, cell tower location keys, explanation forms and disclaimers. These disclaimers are important, as they provide pertinent information regarding location accuracy or time-zone information. Each carrier stores their records in various formats and below you will find the specific data you should receive organized by four of the major carriers. Other carriers like US Cellular follow a similar pattern. Verizon Wireless Verizon Wireless call detail records also require a cell tower key to determine the location of the towers in the area. Call detail records will often be labeled “Cell sites incoming outgoing” and the tower key with contain a city name and “LEA”. Verizon records may also contain Voice Over LTE records which will contain “VOLTE” in the spreadsheet name. If requested in the proper timeframe, you may receive Real Time Tool records, the spreadsheet name will contain “RTTM”. Verizon also provides subscriber information, explanation information for each of the different spreadsheets as well as disclaimers. Each of the spreadsheets containing location information will be in Microsoft Excel format and explanation forms are typically in Portable Document Format. Sprint Sprint also provides call detail records and cell site keys in separate spreadsheets. Again, both are needed to analyze the records. Sprint’s records also come in Microsoft Excel format and are typically labeled with a number. There will be several spreadsheets all containing the various information. They may also provide Per Call Measurement Data (PCMD) if requested in the proper timeframe. Sprint also provides need explanation forms and disclaimers. AT&T/Cricket provides their call detail records and text detail, with location information, in one spreadsheet. This is typically labeled “Reports AU” and comes in two formats, Text format (.txt) and Portable Document Format (.pdf). This is standard for all requests, unless otherwise specified. At&t will provide subscriber information, as well as needed explanation forms and disclaimers. At&t may also provide, if requested, Network Event Location Service (NELOS) data. It is important for your expert to receive the text format (.txt) files for analysis, this format allows for data to be imported into various software platforms for converting time zones and analysis. T-Mobile / Metro PCS T-Mobile / MetroPCS provides call detail records in Microsoft Excel spreadsheets that are typically labeled “CDR Mediations”. This spreadsheet will provide the call record as well as the tower location information needed. Subscriber information will be provided and explanation forms will also be provided. Depending on the year the records were provided, they may be kept in different time-zones, for this reason the explanation form is important. No other location information is available from T-Mobile at this time. The Honorable Garrison Hill, Judge, South Carolina Court of AppealsArbitration Update
D. Garrison Hill South Carolina Court of Appeals I. Contract Formation: Is there a binding arbitration agreement? A.9 U.S.C. § 2: "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 4: ". . . [U] The court, not the arbitrator, decides threshold issues of contract formation, i.e., whether the parties have reached an agreement to arbitrate. Berkeley Cty. Sch. Dist. v. Hub In't Ltd, 944 F.3d 225, 234 n. 9 (4th Cir. 2019). B. Parties: Who may enforce – or be bound by- an arbitration agreement.
a. Wilson v. Willis, 428 S.C. 326 (2019) (state law controls enforceability of arbitration agreement against non-signers, and South Carolina law recognizes the following theories: agency, assumption, alter ego/veil‑piercing, and equitable estoppel). b. Weaver v. Brookdale Senior Living Inc., 431 S.C. 223 (Ct. App. 2020) (granddaughter of decedent who had not signed or benefitted from contract between decedent and nursing home was not bound by arbitration clause in contract under theory of equitable estoppel). c. GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637 (2020) (reaffirming that state law estoppel doctrine may permit enforcement of arbitration agreements by non‑signers). d. Berry v. Spang, Op. No. 5792 (S.C. Ct. App. Jan. 13, 2021) (Broker not compelled to arbitrate wrongful termination lawsuit against Wells Fargo because (1)Arbitration agreement broker signed in 1994 and 1995 with Wells Fargo’s predecessor not enough for court to find broker agreed to arbitrate with Wells Fargo,(2) none of the arbitral forums listed in the agreements still exist, and (3) broker’s mere registration with FINRA, whose rules require arbitration of work-related disputes, could not require him to arbitrate with Wells Fargo, a non-signer). 2. Proxies: Power of Attorney, Health Care Power of Attorney, Adult Health Care Consent Act a. Stott v. White Oak Manor, Inc., 426 S.C. 568 (Ct. App. 2019) (neither unrecorded durable power of attorney nor springing health care power of attorney gave third party authority to sign nursing home admission agreement containing an arbitration provision on behalf of the competent patient). b. Thompson v. Pruitt Corp., 416 S.C. 43 (Ct. App. 2016) (son, who was a surrogate for mother under the Adult Health Care Consent Act, did not bind mother to an arbitration agreement with nursing home by signing it on her behalf; arbitration agreement was separate from and did not merge with admission agreement, and the Act provides surrogates may act for principal only as to financial or health care decisions). c. Kindred Nursing Centers Ltd. v. Clark, 1375 S.Ct. 1421 (2019) (Kentucky's "clear statement" rule–requiring a power of attorney explicitly state that attorney in fact has authority to waive principal's jury trial right and access to courts–disfavors arbitration and is therefore preempted by the FAA). d. Arredondo v. SNH SE Ashley River Tenant, LLC, Op. No. 2019-UP-293 (S.C. Ct. App. Aug. 14, 2019), cert. granted (S.C. Sup. Ct. No 2019-001767, argued November 19, 2020) (whether either durable power of attorney or health care power of attorney empowered daughter to sign arbitration agreement with assisted living facility on behalf of father) 3. Assignees Sanders v. Savannah Highway Automotive Company, Op. No. 5779, 2020 WL 6154305 (S.C. Ct. App. October 21, 2020) (car dealer who assigned sales contract to third party could not enforce arbitration clause of contract against purchaser; assignment extinguished dealer's rights under contract). 4. Corporate "Affiliates" Mey v. DirectTV, LLC, 971 F.3d 284 (4th Cir. 2020) (breathtakingly broad decision in favor of third party “affiliate” corporation; in 2-1 decision over an agitated dissent, court held consumer must arbitrate claim against Direct TV because claim was subject to cell phone arbitration agreement she signed with AT&T covering "all disputes and claims" between consumer and AT&T and its "affiliates," even though Direct TV did not become an affiliate of AT&T until after execution of the agreement). 5. Agents: Family Members a. Heidbreder v. Epic Games, Inc., 438 F. Supp.3d 591 (E.D.N.C. 2020) (father bound by arbitration provision minor son clicked on to play Fortnite video game; father gave son "free rein" to play game and use credit card and son therefore had actual and apparent authority to act as father's agent; court mentions but never addresses father's argument that minor lacked capacity to contract). b. Hodge v. Unihealth, 422 S.C. 544 (Ct. App. 2018) (husband was not wife's agent for purposes of signing nursing home admission and arbitration agreement, nor was husband or estate estopped from disavowing the agreements). C.Procedure for determining whether arbitration agreement was validly formed
II. If arbitration contract has been formed, is it valid? The Prima Paint doctrine. 9 U.S.C. § 2: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
The Prima Paint doctrine means courts analyzing motions to compel arbitration must sever arbitration provision from the remainder of the contract, and look to see whether the party resisting arbitration is challenging the validity of the contract as a whole, or the validity of the arbitration provision in the contract. If the former, the arbitrator decides whether the contract is valid. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006) (“First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts.”). Court must decide threshold issue of whether an agreement to arbitrate exists. The “agreement to arbitrate” in this context means the existence of an agreement to arbitrate disputes, not whether the parties agree to arbitrate the specific dispute at hand. The FAA presumes parties intend that courts, rather than arbitrators, will also decide "gateway" issues of whether an arbitration agreement is valid and enforceable and whether it covers parties' dispute, but parties may delegate gateway issues to arbitrator as long as there is "clear and unmistakable" evidence of such delegation. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 86 (2002); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944–45 (1995). III. Scope: whether the parties’ dispute is covered by the arbitration provision. A.The Delegation Doctrine: "Containers" and Other Strange Vessels If court finds a delegation clause exists, and also finds the parties "clearly and unmistakably" delegated gateway issues (including the issue of the validity of the arbitration agreement) to arbitrator, the arbitrator decides whether the arbitration agreement is valid unless the party resisting arbitration makes direct and precise challenge to the validity of the delegation clause itself. A general challenge to the “container” contract (or even the arbitration clause in the contract) that contains the delegation clause does not suffice. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). If the delegation clause is valid and delegates the issue of whether the parties’ dispute is covered by the arbitration agreement to the arbitrator, then the arbitrator rather than the court decides whether the dispute is within the scope of the arbitration agreement. 1. Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S.Ct. 534 (2019) ("wholly groundless" exception to arbitration enforcement used by four circuits, whereby trial court could deny motion to compel if it concluded motion was "wholly groundless," is incompatible with FAA; case remanded for determination of whether parties delegated arbitrability issue to arbitrator). *Stay tuned. On remand, the Fifth Circuit held that because the main claim in the case was for injunctive relief and the AAA rules the arbitration agreement incorporated "carved out" injunctions from the list of arbitrable claims, then the parties had not "clearly and unmistakably" delegated the arbitrability issue to the arbitrator. The court again denied the motion to compel. The Supreme Court has granted cert again with oral argument set for December 8, 2020. **Update: On January 25, 2021, the Supreme Court, in an unusual victory for a party resisting arbitration, dismissed cert as improvidently granted. 2. Jane Doe v. TCSC, LLC, 430 S.C. 602 (Ct. App. 2020) (Because parties did not clearly and unmistakably delegate issue of whether the arbitration agreement was valid and enforceable, the issue was for the court rather than an arbitrator. Unconscionable portion of the agreement severed; issue of whether the parties' dispute was covered by the remainder of the arbitration provision had been delegated to the arbitrator, including application of the "unforeseen and outrageous" torts exception). 3. Damico v. Lennar Carolinas, LLC, 430 S.C. 188 (Ct. App. 2020) ((1) The trial court violated Prima Paint doctrine by not severing the arbitration provision from the rest of the contract; (2) parties clearly and unambiguously delegated issue of scope of the arbitration provision to the arbitrator). 4. Masters v. KOL, Inc., 431 S.C. 28 (Ct. App. 2020) ((1) parties' execution of second purchase agreement for car did not render first agreement moot and unenforceable because first agreement's arbitration clause stated it related to any claim arising out of sale "or any resulting transaction or relationship" between the parties, and (2) parties delegated issues of validity, enforceability, and scope of arbitration clause to arbitrator). IV. Class Arbitration
2. DoorDash Cases (see below articles) 22 No. 4 Employment Practices Liability Verdicts and Settlements 21 Employment Practices Liability Verdicts and Settlements Volume 22, Issue 4 July 2020 Judicial Decisions DOORDASH MUST ARBITRATE MISCLASSIFICATION CLAIMS FROM 5,000 COURIERS DoorDash Inc. cannot dodge millions of dollars in fees for individual arbitration hearings with 5,010 couriers who say the food delivery company misclassified them as independent contractors and required arbitration in their contracts, a San Francisco federal judge has ruled. U.S. District Judge William Alsup of the Northern District of California granted the couriers’ motion to compel arbitration, saying it was ironic DoorDash was forced to abide by its own arbitration agreement after employers for decades have successfully compelled workers to individually arbitrate disputes. “The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause,” Judge Alsup said. “No doubt, DoorDash never expected that so many would actually seek arbitration.” In addition, the judge denied DoorDash’s bid to stay the proceedings pending final resolution of a state court class settlement, noting the additional irony that DoorDash was trying to resolve the matter based on a class action after requiring the couriers to waive their right to seek classwide resolution. According to Judge Alsup’s order, two groups comprising more than 6,000 DoorDash couriers in California filed individual requests with the American Arbitration Association in 2019 to arbitrate claims against the company, paying $1.2 million in requisite fees. The couriers, known as dashers, had a “mutual arbitration provision” in their contracts with DoorDash that required arbitration of any disputes through the AAA and barred class or representative actions, the order said. The AAA’s commercial arbitration rules require individuals to pay a $300 filing fee and responding companies to pay a $1,900 fee, the order said. The dashers alleged DoorDash misclassified them as independent contractors instead of employees, in violation of the Fair Labor Standards Act, 29 U.S.C.A. § 201, and the California Labor Code. They also said they were entitled to be paid minimum wage and overtime, among other employee protections. In response, DoorDash said there were deficiencies in the dashers’ filings and refused to pay the required $12 million in administrative fees, the order said. The AAA closed the files Nov. 8, 2019. Later that month, representatives of the two groups filed separate motions to compel arbitration under the Federal Arbitration Act, 9 U.S.C.A. § 4, which were later combined and amended in the District Court. Judge Alsup granted the combined motion in part, saying DoorDash must submit to arbitration with 5,010 of the dashers who had signed declarations that they accepted the company’s arbitration agreement. “The agreements ... are valid, cover the claims in suit, and require arbitration before the AAA,” the judge said. Judge Alsup also denied DoorDash’s motion to stay the proceedings pending approval of a settlement in a 2018 state court class action filed by dashers who similarly accused the company of misclassification. Marciano v. DoorDash Inc., No. CGC-18-567869, complaint filed (Cal. Super. Ct., S.F. Cty. July 5, 2018). According to the order, some of the dashers in the arbitration filings are also unnamed class members in the class action. Judge Alsup again noted irony in the proceedings, saying DoorDash had originally tried to have the class action dismissed based on the dashers’ arbitration agreements. “In irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate,” he said. “This hypocrisy will not be blessed, at least by this order.” Abernathy et al. v. DoorDash Inc., No. 19-cv-7545; Boyd et al. v. DoorDash Inc., No. 19-cv-7646, 2020 WL 619785 (N.D. Cal. Feb. 10, 2020). Copyright © 2020 Thomson Reuters 22 No. 4 EPLVS 2 The Honorable James E. Lockemy, Chief Judge, S.C. Court of AppealsLEGISLATIVE JUDGES THE COHABITATION, CONFLICT AND CONFLUENCE OF THE LEGISLATURE AND THE JUDICIARY IN EARLY SOUTH CAROLINA The Colonial Records of South Carolina, Journal of the Commons House Assembly March 28, 1749- March 19, 1750 Revolutionary South Carolina and Empire of Great Britain 1768 •PIVOTAL YEAR •EXPANSION OF COLONY •REGULATOR MOVEMENT •LEGISLATION TO EXPAND COURTHOUSES AND SHERIFFS •SOUGHT ROYAL APPROVAL •DENIED WITHOUT COMPENSATION PACKAGE FOR JUDGES •RESUBMITTED AND APPROVED •THE KING’S SURPRISE TO SOUTH CAROLINA •RAWLINS LOWNDES RECORD OF COMMONS HOUSE 1772 COMPLAINT being made to the House by Rawlins Lowndes, Esq., a member of the House and late on of the assistant judges of this Province; that himself and some other of the judges have lately been discharged from their offices without any cause assigned or misbehavior imputed to them, contrary to the Spirit of the English Constitution which provides for judges holding their commissions during good Behavior. SOUTH CAROLINA COSNSTITUTIONS OF 1776 AND 1778 1776 PROVISIONAL BUT PROVIDED: “ JUDICIAL OFFICERS SHALL BE CHOSEN BY BALLOT JOINTLY BY THE GENERAL ASSEMBLY” 1778 JUDGES SELECTED BY THE SENATE AND HOUSE OF REPRESENTATIVES AND SHALL SERVE “DURING GOOD BEHAVIOUR” “CONSTITUTED AND ENACTED, BY HIS EXCELLENCY RAWLINS LOWNDES, ESQ. PRESIDENT AND COMMANDER IN CHIEF IN AND OVER THE STATE OF SOUTH CAROLINA” CONSTITUTIONAL CONVENTION OF 1787 Charles Pinckney and John Rutledge PROPOSED PROVISIONS ON JUDGES •PINCKNEY PROPOSAL AFTER MADISON PROPOSAL DEFEATED •“JUDGES ARE TO BE APPOINTED BY 2D. BRANCH---SENATE SENT TO COMMITTEE ON DETAIL JOHN RUTLEDGE CHAIR OF COMMITTEE OF DETAIL REPORT DELIVERED ON JULY 26, 1787 “THE SENATE OF THE UNITED STATES SHALL HAVE THE POWER TO MAKE TREATIES, TO SEND AMBASSADORS, AND TO APPOINT JUDGES OF THE SUPREME COURT.” ARTICLE 2 CLAUSE II OF THE CONSTITUTION He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. JOHN RUTLEDGE AND THE SUPREME COURT •PART OF FIRST SUPREME COURT AS ASSOCIATE JUSTICE •RESIGNED IN LESS THAN A YEAR TO RETURN TO SOUTH CAROLINA AND HEAD THE STATE JUDICIARY •NOMINATED BY PRESIDENT WASHINGTON TO BE CHIEF JUSTICE IN 1795 •TOOK OFFICE AS A RECESS APPOINTMENT AS SECOND CHIEF JUSTICE •JAY TREATY •REJECTED BY SENATE 10-14 •FIRST AND ONLY JUSTICE EVER TO BE REMOVED FROM THE SUPREME COURT •REJECTED BY BODY HE SOUGHT TO HAVE SOLE AUTHORITY TO APPOINT JUDGES •TRIED TO COMMIT SUICIDE Macready v Hunt 1834 •TARIFF ACT OF 1828 •JOHN C. CALHOUN—VICE PRESIDENT •PRESIDENT JACKSON THREATENS TO SEND TROOPS TO ENFORCE TARIFF •CALHOUN RESIGNS •ELECTIONS OF 1832 •NEW LEGISLATURE ENACTS LAW REQUIRING MILITIA OFFICERS TO SWEAR ALLEGIANCE TO THE STATE OF SOUTH CAROLINA •COMPROMISE REACHED ON TARIFFS •McCREADY IS ELECTED LIEUTENANT OF WASHINGTON LIGHT INFANTRY •REFUSES TO TAKE NEW OATH WITHOUT ALSO SWEARING ALLEGIANCE TO THE CONSTITUTION OF THE UNITED STATES Washington Light Infantry 1807 Turn over keys to begin the Citadel Thomas Grimke James Petigru Lawyers for the State of South Carolina Robert Barnwell Rhett Robert Y. Hayne Judge John Belton O'Neall RESULTS OF DECISION •SOUTH CAROLINA COURT OF APPEALS ABOLISHED •JOHN BELTON O’NEALL SENT BACK TO TRIAL COURT •DAVID JOHNSON LEAVES THE BENCH—BECOMES GOVERNOR IN 1858 •ASKS LEGISLATURE TO CREATE NEW COURT OF APPEALS—HEADED BY JOHN BELTON O”NEALL •THOMAS GRIMKE DIES OF CHOLERA LATER IN THAT YEAR •GRIMKE SISTERS BECOME ABOLITIONIST LEADERS—HELP IN WOMEN’S SUFFRAGE MOVEMENT •JAMES PETIGRU CONTINUES TO SUPPORTS UNIONISM •HE DIES IN 1863 •CONSTITUTION OF 1868—CREATES A SUPREME COURT WITH NO COURT OF APPEALS, RETAINS THAT ALL JUDGES ARE SELECTED BY THE GENERAL ASSEMBLY—THIS STAYS IN CONSTITUTION OF 1895 •1876 PRESIDENTIAL ELECTION—LEGISLATURE AND JUDGES OF SOUTH CAROLINA DETERMINES THE PRESIDENCY OF THE UNITED STATES South Carolina Court of Appeals created 1983. INTERESTING WORDS OF TWO PLAYERS JOHN RUTLEDGE •HE WAS “BY NO MEANS DISPOSED TO GRANT SO GREAT A POWER (SELECTING JUDGES)TO ANY SINGLE PERSON. THEY WILL THINK WE ARE LEANING TOO MUCH TOWARDS MONARCHY” •CONSTITUTIONAL CONVENTION 1787 JAMES PETIGRU “SOUTH CAROLINA IS TOO SMALL FOR A REPUBLIC AND TOO LARGE FOR AN INSANE ASYLUM.” STREETS OF CHARLESTON, DECEMBER 20, 1860 ON HEARING OF SOUTH CAROLINA SECESSION Separate but Equal South Carolina State House Dillon County Courthouse Kathleen Barnes, Esquire Barnes Law FirmPanel/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 i. 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) ii.Masters v. KOL, Inc., 2020 S.C. App. LEXIS 72 (Ct. App. July 22, 2020) iii.Weaver v. Brookdale Senior Living, Inc., 2020 S.C. App. LEXIS 74 (Ct. App. July 29, 2020) iv. Grant v. Chevrolet, 2020 S.C. App. LEXIS 79 (Ct. App. Aug. 12, 2020)c.Substantive Law c.Insurance i. Progressive Direct Ins. Co. v. Groves, 2020 S.C. App. LEXIS 71 (July 22, 2020) ii. Connelly v. The Main Street America Group, 2020 S.C. App. LEXIS 77 (Ct. App. Aug. 12, 2020) iii. 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 Senator Tom Davis, Esq.Marijuana as an alternative to opioids for the treatment of pain
The opioid problem National Centers for Health Statistics: 76 million Americans suffer from chronic pain, more than diabetes, heart disease and cancer, combined. Primary treatment for chronic pain involves the prescription of opiate-based therapies which has resulted in 259 million annual prescriptions, enough to give every American adult their own bottle of pills. U.S. in 2015: all-time high of 52,000 overdose deaths, two-thirds of which were opioid-related. S.C.: In 2016, 550 deaths from opioid overdoses, up 7% from 2015 and 18% from 2014. The CDC says that every day 91 individuals lose their lives to prescription opioid-related causes. Americans are only 4.2% of the planet's population; they use 80% of the world’s opioid supply. The medical science The National Academy of Sciences in January 2017 published “The Health Effects of Cannabis and Cannabinoids” after reviewing more than 10,000 studies, finding that “in adults with chronic pain, patients who were treated with cannabis or cannabinoids are more likely to experience a clinically significant reduction in pain symptoms. This report also included that “there is substantial evidence that cannabis is an effective treatment for chronic pain in adults.” Marijuana contains 60 active ingredients known as cannabinoids. The body naturally makes its own form of cannabinoids to modulate pain. Two cannabinoid receptors (CB1 and CB2) are present in the brain as part of the human body's natural pain control system. THC binds to the receptors that are involved in mediating pain; it works directly on pain pathways in the brain. It addresses the causes of pain; opioids address the symptoms. Cannabis is not a cure-all for every medical condition, nor would it be appropriate for every patient. But it should be added to a physician’s inventory of treatment choices. The evidence of decreased opioid use University of Michigan study in 2016: MMJ results in 64% reduction in the use of opioids. JAMA study published in 2014, surveying results over an 11-year period, found opioid overdose deaths 25% lower in MMJ states. That equates to 138 saved lives in SC alone. Univ. of Georgia in 2016 found that in MMJ states each physician prescribed an average of 1,826 fewer doses of opioids each year. The Public Library of Science study published in 2017, studying New Mexico MMJ patients from April 2010 through October 2015, found a 47% reduction in opioid use. The National Institute on Drug Abuse funded a study by the RAND Corporation, published in May 2016, which found a 16% to 31% decline in mortality due to opioid overdoses and a 28% to 35% decline in admissions for treatment of opioid addiction. “Parade of Horribles” rebutted Gateway drug: In August 2016, the DEA formally admitted in a report that there is no scientific evidence to support that cannabis is a gateway drug: “Overall, research does not support a direct causal relationship between regular cannabis use and other illicit drug use.” Opioids are the real gateway drug: the National Institute on Drug Abuse, pooling data from 2002 to 2012, found heroin use 19 times higher among those who had previously used of opioids, and that 86% of heroin users had used opioid pain relievers prior to using heroin. Black market cannabis is frequently laced with more addictive drugs in order to create new addicts. Medical cannabis is highly controlled. Cannabis can facilitate the decreased usage of opioids, making it an exit drug for some addicts. On the claim that marijuana is addictive: Nat’l Institute on Drug Abuse says 9% of marijuana users became addicted as opposed to about 12% of alcohol users and 30% of tobacco users. The five leading drug types that cause death are tobacco, alcohol, prescription opioids, heroin, and cocaine. No one has ever died from taking too high a dose of THC. Status of cannabis legalization 31 states plus DC have medical-cannabis laws. 11 states, including SC, have legalized CBD oil. The so-called “Cole Memorandum” – a memorandum issued on by Deputy Attorney General James M. Cole to all United States Attorneys on August 29, 2013 – advises that the DOJ is deferring its rights to challenge the legality of states’ cannabis-legalization laws. Since 2014, federal budgets have included amendments that block the DOJ from using federal tax dollars to go after states that have legalized marijuana. What the people want Nationally: A Quinnipiac poll in April 2016 found 89% of Americans support allowing adults to legally use marijuana for medical purposes – 81% of Republicans, 94% of Democrats, and 93% of Independents. 73% oppose fed enforcement marijuana laws in MMJ states. In SC: A September 2016 poll by Winthrop University found 78% of residents support legalizing medical marijuana – but that only 39% supported legalizing it for recreational use. On November 2, 2017, the American Legion published a survey of over 800 veterans and veteran caregivers in which 82% said they wanted cannabis as a federally legal treatment option. The federal ban is illogical For 5 millennia, cannabis sativa has been used throughout the world medically and recreationally. And American physicians routinely prescribed it – until the feds banned it in 1970 for political reasons. The AMA protested its ban, as did President Nixon’s own commission. The FDA is intended to control new medicines, not medicines that had already been in use for hundreds or thousands of years. It looks foolish defending the classification of cannabis as a Schedule I drug as having “no accepted medical use” – as foolish as insisting the earth is flat. FDA studies are sponsored by pharmaceutical companies that stand to make billions on new sales. But those companies will get little revenue from sale of cannabis. In order to reschedule cannabis, the FDA needs to coordinate with DEA, National Institute of Drug Abuse, the Department of Justice, and other agencies, which are vulnerable to political pressures, not just scientific findings. The DEA has also refused to grant licenses to allow legal marijuana imports for medical research – then says there is insufficient research to reschedule. This is circular reasoning. |
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The Honorable Kenneth E. Fulp, Jr., Probate Judge, Beaufort County
FORMAL DECEDENTS’ ESTATES PROCEEDINGS
IN PROBATE COURT
A Presentation to the Hilton Head Bar Association
By Kenneth E. Fulp, Jr., Probate Judge
I.Distinction between Informal and Formal Proceedings in Probate Court.
2. Formal proceedings. Commenced by filing summons and petition and serving same on interested persons;
governed by SCRCP. Id. § 62-1-201(17). “A formal proceeding [in probate court] is a ‘civil action’ as defined in Rule 2, SCRCP, and must be commenced as provided in Rule 3, SCRCP.” Id. § 62-1-304. “ ‘Petition’ means a complaint as defined in the rules of civil procedure adopted for the circuit court.” Id. § 62-1-201(34). Filing fee same as for summons and complaint in circuit court (currently $150.00). Id. § 8-21-770(C)(11).
II.Service/Notice Issues in Decedents’ Estates Formal Proceedings.
2. Formal testacy and/or appointment of personal representative.
2. Allowance of Creditor’s Claim: personal representative(s) if action commenced by claimant, id. § 62-3-804(2); claimant(s) if action commenced by personal representative. Id. 62-3-806(b).
3. Removal of Personal Representative: personal representative. Id. § 62-3-611(a).
4. Partition of Real or Personal Property: all “interested heirs or devisees” meaning those “entitled to distribution of undivided interests in any personal or real property of the estate”. Id. § 62-3-911.
5. Notice of Hearing generally must be given to all interested persons, even if less than all must be served with summons and petition.
III.Time Limitations.
Contest of Informally Probated Will. Within later of 8 months from informal probate or one year from decedent’s death. Id. § 62-3-108(A)(2)(c).
2. Spousal Elective Share Claim. Within later of: (1) eight months after decedent’s death, (2) six months after probate of decedent’s will, or (3) thirty days after surviving spouse served with summons and petition to set aside informally probated will or modify/vacate order formally probating will. Id. § 62-2-205(a).
3. Claim Allowance. Action by claimant: (1) no more than 30 days after personal representative has mailed notice of disallowance of claim; (2) if claim presented and not disallowed, action may be commenced at any time after presentment; (3) if claim not presented, action must be commenced within time limit for presenting claim under § 62-3-803. Id. §62-3-804. Action by personal representative: within time limit for presentment of claim under § 62-3-803, as long as claim has not been barred by disallowance.
4. Partition Action. Action must be commenced before closure of estate. Id. § 62-3-911.
5. Paternity and Common-Law Marriage. Probate court has jurisdiction (concurrent with family court) to determine paternity and common-law marriage in connection with decedent’s estate, trust, guardianship, and conservatorship actions pending before it. Id. § 62-1-302(c). Formal proceeding to establish paternity of decedent or common-law marriage between decedent and another must be commenced within the later of 8 months after decedent’s death or 6 months after initial appointment of a personal representative (and must be proven by clear and convincing evidence). Id. §§ 62-2-109(2)(ii) and 62-2-802(b)(4).
IV.Removal to Circuit Court.
2. Removal to circuit court applies only to action removed; probate court retains exclusive jurisdiction over other matters related to decedent’s estate, e.g., estate administration. Id. § 62-1-302(e). Please note, however, that in case of removal of action described in § 62-1-302(d) (see above list), probate court may also remove to circuit court “other related matters” (not listed above) “if the probate court finds that the removal of such related matter or matters would be in the best interest of the estate or in the interest of judicial economy.” Id. § 62-302(f).
IN PROBATE COURT
A Presentation to the Hilton Head Bar Association
By Kenneth E. Fulp, Jr., Probate Judge
I.Distinction between Informal and Formal Proceedings in Probate Court.
- Informal Proceedings. Commenced by application, conducted without prior notice for probate of will or appointment of personal representative; not governed by the South Carolina Rules of Civil Procedure (“SCRCP”). S.C. Code Ann. § 62-1-201(22). Filing fees set by Code § 8-21-770. Notice given to heirs and devisees after probate/appointment. Id. §§ 62-3-306 and 62-3-705. Please Note: Prior notice can resolve some priority issues in informal appointment proceedings. See id. § 62-3-310.
2. Formal proceedings. Commenced by filing summons and petition and serving same on interested persons;
governed by SCRCP. Id. § 62-1-201(17). “A formal proceeding [in probate court] is a ‘civil action’ as defined in Rule 2, SCRCP, and must be commenced as provided in Rule 3, SCRCP.” Id. § 62-1-304. “ ‘Petition’ means a complaint as defined in the rules of civil procedure adopted for the circuit court.” Id. § 62-1-201(34). Filing fee same as for summons and complaint in circuit court (currently $150.00). Id. § 8-21-770(C)(11).
II.Service/Notice Issues in Decedents’ Estates Formal Proceedings.
- Parties to be served with summons and petition (whether denoted “respondents” or “defendants”) varies according to type of action/ proceeding. Reference must be made to individual Probate Code sections governing different proceedings, examples of which follow.
2. Formal testacy and/or appointment of personal representative.
- Testacy (to determine whether decedent left valid will): all intestate heirs (regardless of whether decedent intestate), devisees, personal representatives named in will and any appointed personal representative not terminated. Id. § 62-3-403(a).
- Appointment (priority or qualification): all “interested persons…under applicable assumption concerning testacy,” previously appointed personal representative(s), and those having/claiming priority for appointment. Id. § 62-3-414(b).
- Spousal Elective Share Claim: personal representative(s). Id. § 62-2-205(a).
2. Allowance of Creditor’s Claim: personal representative(s) if action commenced by claimant, id. § 62-3-804(2); claimant(s) if action commenced by personal representative. Id. 62-3-806(b).
3. Removal of Personal Representative: personal representative. Id. § 62-3-611(a).
4. Partition of Real or Personal Property: all “interested heirs or devisees” meaning those “entitled to distribution of undivided interests in any personal or real property of the estate”. Id. § 62-3-911.
5. Notice of Hearing generally must be given to all interested persons, even if less than all must be served with summons and petition.
- “ ‘Interested person’ includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or in the estate of a decedent, ward, or protected person which may be affected by the proceeding. It includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.” (Emphasis added.) Id. § 62-1-201(23).
III.Time Limitations.
- Probate/Appointment. Deadline to commence informal or formal probate (including testacy) or appointment proceeding is 10 years after decedent’s death, except that 10-year limitation does not apply to proceeding to probate will previously probated at decedent’s domicile or appoint personal representative for estate in which there has been prior appointment. Id. § 62-3-108. If no probate/testacy proceeding commenced before time bar, it is incontestable that decedent left no will and estate passed by intestacy. Id.
- Note: Time limitations of § 62-3-108 do not apply to proceedings to construe probated wills or determine heirs of an intestate. Must be commenced as formal proceedings governed by SCRCP.
Contest of Informally Probated Will. Within later of 8 months from informal probate or one year from decedent’s death. Id. § 62-3-108(A)(2)(c).
2. Spousal Elective Share Claim. Within later of: (1) eight months after decedent’s death, (2) six months after probate of decedent’s will, or (3) thirty days after surviving spouse served with summons and petition to set aside informally probated will or modify/vacate order formally probating will. Id. § 62-2-205(a).
3. Claim Allowance. Action by claimant: (1) no more than 30 days after personal representative has mailed notice of disallowance of claim; (2) if claim presented and not disallowed, action may be commenced at any time after presentment; (3) if claim not presented, action must be commenced within time limit for presenting claim under § 62-3-803. Id. §62-3-804. Action by personal representative: within time limit for presentment of claim under § 62-3-803, as long as claim has not been barred by disallowance.
4. Partition Action. Action must be commenced before closure of estate. Id. § 62-3-911.
5. Paternity and Common-Law Marriage. Probate court has jurisdiction (concurrent with family court) to determine paternity and common-law marriage in connection with decedent’s estate, trust, guardianship, and conservatorship actions pending before it. Id. § 62-1-302(c). Formal proceeding to establish paternity of decedent or common-law marriage between decedent and another must be commenced within the later of 8 months after decedent’s death or 6 months after initial appointment of a personal representative (and must be proven by clear and convincing evidence). Id. §§ 62-2-109(2)(ii) and 62-2-802(b)(4).
IV.Removal to Circuit Court.
- The following actions commenced in probate court (over which it has exclusive jurisdiction) may be removed to circuit court, for trial de novo, on motion of a party, or by the court on its own motion, made within 10 days after date all responsive pleadings required to be filed:
- Formal proceedings for probate/testacy and appointment of general personal representative.
- Will construction actions.
- Actions to try title concerning property in which estate asserts interest.
- Trust actions, excluding special needs trusts.
- Actions where party has right to jury trial and amount in controversy of at least $5,000.
- Actions concerning UGMA gifts.
2. Removal to circuit court applies only to action removed; probate court retains exclusive jurisdiction over other matters related to decedent’s estate, e.g., estate administration. Id. § 62-1-302(e). Please note, however, that in case of removal of action described in § 62-1-302(d) (see above list), probate court may also remove to circuit court “other related matters” (not listed above) “if the probate court finds that the removal of such related matter or matters would be in the best interest of the estate or in the interest of judicial economy.” Id. § 62-302(f).
The Honorable Heather Galvin, Associate Probate Judge, Beaufort County
TOP FIVE TRUST FILING TRIPS AND TRICKS
ONE
PRINCIPAL PLACE OF ADMINISTRATION
Jurisdiction - §62-7-202
-Over Trustee - Accepts trusteeship of a trust with a PPA in SC then trustee submits personally to jurisdiction in SC regarding any matter involving the trust
-Over Beneficiaries
-(1) Interest in the trust having a PPA in SC = subject to jurisdiction
-(2) Accept a distribution of a trust having a PPA in SC = submits personally to jurisdiction in SC regarding any matter involving the trust
Venue - §62-7-204
-Where the PPA is or will be located with a few exceptions
-If a trust is created by will and the estate isn’t closed the county where the estate is being administered
-If no trustee, county where the trust property is located or where the last trustee had the PPA
-Other remote exceptions contained in §62-7-204 regarding competing venues, court transfer of venue, and disqualification of a probate judge
PPA Definition - §62-7-108
-The place designated by the trust but if no place is named:
a.Trustee’s usual place of business where the records pertaining to the trust are kept
b.If no place of business, trustee’s residence
c.If Co-Trustees (In order of application)
1. Usual place of business of corporate trustee or professional fiduciary, the usual place of business of the corporate trustee or professional fiduciary or the residence of the professional fiduciary
2. If no corporate trustee but one trustee is a professional fiduciary, the usual place of business or, if none, the residence of the professional fiduciary
3. The usual place of business or residence of any of the cotrustees as agreed upon by them
Good News – You may change the PPA - §62-7-108(d)-(g)
TWO
WHAT LAW APPLIES?
Governing Law - §62-7-107
The meaning and effect of the terms of a trust are determined by:
a.The law of the jurisdiction designated in the terms of the trust
b.If none, the law of the jurisdiction having the most significant relationship to the matter at issue
1.Where the trust was created
2.Location of trust property
3.Domicile of the settlor, the trustee, and the beneficiaries
THREE
VIRTUAL REPRESENTATION
Representation – Part 3 (§§62-7-301 – 62-7-305)
QUICK TIPS:
-Presently exercisable general power of appointment
-No Conflict of Interest
-Conservator, Guardian, Agent, Trustee, Personal Representative, and Parent of minor or unborn issue
-Substantially Identical Interest
-Court-Appointed Guardian ad Litem
FOUR
CHARITABLE COMPONENT
Involvement of SC Attorney General (§§1-7-130; 62-7-103(3); 62-7-405;62-7-704 )
a.Even if only a portion of the trust is created for a charitable purpose, no matter how remote, the AG must be involved and typically, named as a party
b.Even if you name the charity as a party, the AG must also be named as the AG represents the interests of charitable beneficiaries
c.Even if the charity is defunct, the AG must be named as a party
d.Modification/Termination of a Trust
e.Vacancy in trusteeship with no person designated to act as successor, must get the consent of and/or name the AG as a party
f.The AG may maintain a proceeding to enforce a trust and may intervene in an action if they weren’t initially named as a party
g.Just call the AG’s office – they don’t bite (Assistant Deputy AG Mary Frances Jowers)
FIVE
RESIGNATION AND/OR REPLACEMENT OF A TRUSTEE
Vacancy in trusteeship; appointment of successor - §62-7-704
Vacancy of a noncharitable trust must be filled in the following order of PRIORITY:
-By a person designated in the terms of the trust to act as successor trustee
-By a person appointed by unanimous agreement of the QUALIFIED beneficiaries
-By a person appointed by the Court
ONE
PRINCIPAL PLACE OF ADMINISTRATION
Jurisdiction - §62-7-202
-Over Trustee - Accepts trusteeship of a trust with a PPA in SC then trustee submits personally to jurisdiction in SC regarding any matter involving the trust
-Over Beneficiaries
-(1) Interest in the trust having a PPA in SC = subject to jurisdiction
-(2) Accept a distribution of a trust having a PPA in SC = submits personally to jurisdiction in SC regarding any matter involving the trust
Venue - §62-7-204
-Where the PPA is or will be located with a few exceptions
-If a trust is created by will and the estate isn’t closed the county where the estate is being administered
-If no trustee, county where the trust property is located or where the last trustee had the PPA
-Other remote exceptions contained in §62-7-204 regarding competing venues, court transfer of venue, and disqualification of a probate judge
PPA Definition - §62-7-108
-The place designated by the trust but if no place is named:
a.Trustee’s usual place of business where the records pertaining to the trust are kept
b.If no place of business, trustee’s residence
c.If Co-Trustees (In order of application)
1. Usual place of business of corporate trustee or professional fiduciary, the usual place of business of the corporate trustee or professional fiduciary or the residence of the professional fiduciary
2. If no corporate trustee but one trustee is a professional fiduciary, the usual place of business or, if none, the residence of the professional fiduciary
3. The usual place of business or residence of any of the cotrustees as agreed upon by them
Good News – You may change the PPA - §62-7-108(d)-(g)
TWO
WHAT LAW APPLIES?
Governing Law - §62-7-107
The meaning and effect of the terms of a trust are determined by:
a.The law of the jurisdiction designated in the terms of the trust
b.If none, the law of the jurisdiction having the most significant relationship to the matter at issue
1.Where the trust was created
2.Location of trust property
3.Domicile of the settlor, the trustee, and the beneficiaries
THREE
VIRTUAL REPRESENTATION
Representation – Part 3 (§§62-7-301 – 62-7-305)
QUICK TIPS:
-Presently exercisable general power of appointment
-No Conflict of Interest
-Conservator, Guardian, Agent, Trustee, Personal Representative, and Parent of minor or unborn issue
-Substantially Identical Interest
-Court-Appointed Guardian ad Litem
FOUR
CHARITABLE COMPONENT
Involvement of SC Attorney General (§§1-7-130; 62-7-103(3); 62-7-405;62-7-704 )
a.Even if only a portion of the trust is created for a charitable purpose, no matter how remote, the AG must be involved and typically, named as a party
b.Even if you name the charity as a party, the AG must also be named as the AG represents the interests of charitable beneficiaries
c.Even if the charity is defunct, the AG must be named as a party
d.Modification/Termination of a Trust
e.Vacancy in trusteeship with no person designated to act as successor, must get the consent of and/or name the AG as a party
f.The AG may maintain a proceeding to enforce a trust and may intervene in an action if they weren’t initially named as a party
g.Just call the AG’s office – they don’t bite (Assistant Deputy AG Mary Frances Jowers)
FIVE
RESIGNATION AND/OR REPLACEMENT OF A TRUSTEE
Vacancy in trusteeship; appointment of successor - §62-7-704
Vacancy of a noncharitable trust must be filled in the following order of PRIORITY:
-By a person designated in the terms of the trust to act as successor trustee
-By a person appointed by unanimous agreement of the QUALIFIED beneficiaries
-By a person appointed by the Court
Stephen A. Spitz, Esquire Spitz & Neville
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, fn1
2. Equity normally acts in personam not in rem; fn 2
3. Equity follows the law; fn 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; fn 4
5. Equity regards as done what ought to be done; fn 5
6. Equity regards substance rather than form; fn 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; fn 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. fn 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.
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, fn1
2. Equity normally acts in personam not in rem; fn 2
3. Equity follows the law; fn 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; fn 4
5. Equity regards as done what ought to be done; fn 5
6. Equity regards substance rather than form; fn 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; fn 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. fn 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.
Barbara Seymour, Esquire Clawson & 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?
Lawyers and Emotional Resilience
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.”
“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:
Translation: Be nice to people, you will need them someday.
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)
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.
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)
