If you practice family law in South Carolina, how often has the following happened to you?:
ATTORNEY: [Asks the witness a question]
OPPOSING COUNSEL: Objection
If I am the attorney who has just had my question cut off without being able to explain why my question is permissible, I will ask the judge, “Your honor, may I be heard.” Sometimes the response from the judge will be some variation on, “Counsel, aren’t you familiar with Family Court Rule 9?” Actually, I am, but when the judge asks me such questions, I suspect that is not a path the judge wishes to go down. The problem is that Family Court Rule 9(b) is confusing and, perhaps, contradictory:
Counsel shall not attempt to further argue any matter after he has been heard and the ruling of the court has been pronounced. No argument shall be made on objections to admissibility of evidence or conduct of trial unless specifically requested by the court.
As I read the rule, once I am heard and the judge’s ruling has been pronounced, I “shall not attempt to further argue any matter.” As some judges read this rule once that judge has issued his or her ruling, an attorney “shall not attempt to further argue” while ignoring that this applies only after the attorney “has been heard.” These judges further note that “[n]o argument shall be made on objections to admissibility of evidence.”
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ….[i]n case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.
In theory one could comply with Rule 9(b), SCRFC, while preserving any error through Rule 103(b)(2), SCRE, by not attempting to argue the admissibility of evidence but merely making a proffer of the evidence and stating the ground upon which the proffered evidence is admissible each and every time a judge sustains an objection to one’s question without allowing a response. In practice, going through the process of proffering the testimony and noting why the proposed testimony is admissible will be much more time consuming than simply asking to explain why the proposed testimony is admissible.
The next time a judge reminds me of Rule 9 while sustaining an objection to my question without first enquiring why the question might be allowable will have his or her views of Rule 9 respected through a constant stream of Rule 103(b) proffers. I will be interested to see if that judge’s views of Rule 9 changes about my fourth or fifth proffer.