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Why family law in South Carolina is so underdeveloped

South Carolina family law attorneys frequently complain about the random nature of family court. A large part of the reason for this “randomness” is that South Carolina family law invests so much discretion in family court judges. The one area of family law in which judges have little discretion–setting child support–is the most predicable aspect of family law. However another part of the reason family court “justice” can seem so random is that appellate law is so underdeveloped on South Carolina family law topics. When there is published South Carolina authority “on point” it is easier to predict what a family court judge might do. Where there is no appellate decision on point, such predictions become much harder.

Yet the South Carolina appellate courts are doing little to develop this area of the law. Halfway through 2015, our state Supreme Court has seen fit to issue twenty-one published attorney disciplinary opinions but no family law opinions. Our Court of Appeals has only issued two published opinions–and one was a refiled decision from a 2014 opinion.

My impression is that there used to be a lot more published opinions in the past. In drafting this blog I selected two years to see whether there used to be more published family law opinions in the past. In 1988 (the year I started law school) there were 66 published family law opinions and in 1992 (the year I was licensed in South Carolina) there were 49 published family law opinions. In no year since I began this blog in 2009 have there been more than 35 published family law opinions and the past few years that number has been in the teens.

There are three ways of boosting the number of published family law opinions. Family law attorneys could start appealing–rather than just complaining about–the decisions they consider unjust. The Court of Appeals could publish a lot more of its non-summary family law opinions [earlier this year I noted two interesting termination of parental rights opinions that I believe should have been published]. Finally the Supreme Court could accept certiorari or direct review of more family law appeals. There would be much greater predictability in family law if our appellate courts were issuing sixty-six, rather than sixteen, published opinions a year.

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  • Don’t you think a litigant’s fatigue and exhaustion of funds causes fewer appeals?

    • This is based upon personal experience- but I agree with the comment about exhaustion of funds at the trial level.

      What suprised me was the lack of knowledge on how to appeal with the family law attorneys I used (or know). Most just brushed off the idea of appealing or simply did not know, or want to learn how to appeal.

      I talked with a lawyer who only does appeals (with the majority being family law cases) and she confirmed this practice of “trial court only” lawyers.

      She mentioned that if a family law attorney would try to lessen the number of days at a hearing, an appeal would be less costly and produce (perhaps) a better result for the client.

      Now getting a claim of right versus an application for leave to appeal is another story…

      • I agree with Sara. Many family court lawyers, and lawyers from other fields, are unable and unwilling to handle appeals. I frequently counsel other lawyers, “If you want to be a good trial lawyer, do appellate work. If you want to be a good appellate lawyer, do trial work.” Handling appeals teaches the trial lawyer to create a record at trial, including all relevant evidence and excluding the irrelevant. Trying cases gives the appellate lawyer a better perspective on the practical application of the law to specific facts.

        A trial lawyer’s reputation for a willingness to appeal and an ability to appeal effectively encourages opposing counsel to settle and gives the lawyer an edge with the trial judge on close or difficult decisions. “Reading makes the educated person but writing makes the precise person.” Appellate lawyers are more precise and persuasive in trial.

        Trial lawyers should understand appellate work is fun, working in one’s office without having to deal with a client or opposing counsel. Also, other than hearing “not guilty” from a jury in a serious criminal trial, it is hard to beat the thrill of facing three, five, or nine appellate judges firing tough questions.

  • Good appeals require good records and we are not making good records in the trial courts. As mediation increases, litigation skills decrease. Another problem is that as lawyers we have priced ourselves out of the market so that the middle class cannot afford contested litigation and appeals. Walt Kelly’s Pogo the Possum got it right: “We have met the enemy and it is us.”

  • Thomas,
    Thank you for these insightful comments! I come to this first as an outsider, then as a party, now as a law student (an old one).

    What I find so shocking is how in law school, it’s all about appeals, and in practice, it’s more about the trial level only. My thought was- if we only stop at the trial level, aren’t we cutting ourselves off at the knees? There’s a whole other level that can be accessible to the client, given the attorney is skilled in the ways Thomas mentions (which seems to be rare).

    The other argument for appealing a lower court family law order is because in many locations, the trial court judges do not understand family law. I’ve witnessed (and now know this to be common) judges who have not read any pleading who then ruled on an issue as if it was a common law decision, despite the fact that there are existing case laws and statutes that apply (both at the state and uniform level- e.g. the UIFSA and UCCJEA).

    And the final question- why aren’t law schools teaching HOW to use this lower-level-then-appellate-and-up method? There’s such a disconnect in so many ways.

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