Under South Carolina Rule of Family Court 21(c), “affidavits filed at a temporary hearing need not be served on the opposing party prior to the temporary hearing.” However, I generally prefer to review these affidavits and other submissions before either side begins arguing the temporary motion. One reason for this preference is that I may want to respond to some of the allegations in these counter-affidavits in my argument. Also, I want to ensure that opposing counsel does not argue facts outside of what has been presented in the affidavits so I need to review these affidavits before opposing counsel begins arguing. Finally, if there are allegations in these affidavits that I could not have anticipated based on the opposing party’s prior affidavits, motions and pleadings, I will want to seek leave to file supplemental affidavits to respond to these unanticipated allegations. See Rule 21(b), SCRFC (“Evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary.”) (emphasis added).
There will be rare occasions when I do not want the opposing party reviewing my temporary hearing submissions before argument begins (typically because there are legal or factual arguments I do not want to give the opposing party time to review or analyze prior to argument). On those occasions I will not offer to exchange affidavits before the case is called. However unless one party is seeking a continuance or dismissal of the motion, there is never an occasion when I will refuse another party’s request to exchange temporary hearing submissions while waiting for the case to be called.
On most occasions, though, I will want to exchange these submissions prior to the hearing and will offer to exchange these submissions while waiting for the case to be called. On those rare occasions when opposing counsel refuses, I am placed in a position in which I need to be prepared to make argument or hear the other party’s argument without having read that party’s submissions. For the reasons noted above, this can place me and my client at a strategic disadvantage.
There’s an obvious but infrequently used way to counter this difficulty: ask the court for leave to review the other party’s submissions before argument begins. When I seek this leave, I don’t complain that the other party refused to exchange submissions prior to the hearing–I merely apologize and ask for leave. If the court asks why we didn’t exchange these submissions while waiting, then I can indicate that I offered to do so but that the opposing party or attorney refused.
The court will typically be annoyed at this request–whether because it is unusual or because it delays the docket I cannot determine–but I still find the request worth making. I have yet to have the court deny this request. Either the court will give me a few minutes to review the other party’s submissions before beginning argument or, more typically, the court will have us leave the courtroom while it moves on to the next case on the docket and takes our case later (sometimes, much later).
Still, I would rather incur a short delay and mild displeasure from the judge than have to argue a motion without knowing what I might need to respond to, whether I need leave to file supplemental affidavits, and with no ability to determine if opposing counsel’s argument strays beyond the sworn facts.