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What part of don’t don’t you understand

Friend and colleague Mary Jane (M.J.) Goodwin suggested I blog on the propriety of citing unpublished appellate opinions as legal authority in other cases.  Are attorneys really doing that?  M.J. indicates they are, for example, citing State v. Hercheck to get DUI charges tossed.  She’d love to cite SCDSS v. Rene in prosecuting a termination of parental rights case.

South Carolina Appellate Court Rule 268(d)(2) states, “Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.”  These rules are promulgated by the South Carolina Supreme Court and when my Supreme Court tells me I “should not” do something, I am inclined to listen.

Who are these attorneys brazenly ignoring the directives of our Supreme Court?  They’re much braver attorneys than I. While I’ve been critical of these sorts of unpublished opinions, I still don’t cite them as authority in other cases.  M.J. wonders what she should do when she encounters such attorneys improperly citing unpublished opinions as authority. Perhaps contempt?

As family law attorneys we are so used to prosecuting constructive contempt–contempt that takes place outside of the court’s presences–that we forget that for most of Anglo-American jurisprudence’s history the bulk of contempt has been direct contempt: contempt taking place in the court’s presence.  It’s only been with the development of courts with vast equitable powers, like family court, that constructive contempt has become an important part of litigation.

The Appellate Court Rules are in the nature of orders from our South Carolina Supreme Court.  Deliberately violating them is a form of contempt against the court.  So M.J., if you’re so fed up with opposing attorneys citing unpublished opinions from other cases as authority, ask the judge to hold opposing counsel in contempt.  Just let me know before you do this so that I can travel to Anderson to see how it all plays out.

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