Posts Tagged ‘Litigation Strategy’

Why file for separate maintenance when one doesn’t have grounds for divorce?

Separate maintenance is the action one files with the family court when one is no longer living with one’s spouse but one doesn’t yet have grounds for divorce. This occurs when one doesn’t have fault grounds for divorce (physical cruelty; habitual intoxication; adultery) but hasn’t been separated for the one-year period that allows for a […]

Should one explain one’s request to admit responses?

I had a lively debate a few weeks ago with colleagues I respect over whether one should explain request to admit responses that look bad on the surface but have reasonable explanations [this is a good time to acknowledge I have a very unusual conception of what constitutes a “good time”].  All of us frequently […]

The two types of motions to compel discovery

Although the rules of civil procedure don’t differentiate them, there are really two distinct types of motions to compel discovery: one addressing the untimeliness of the response and one addressing the inadequacy of the response.  Each type requires a very different strategy to prosecute. The easier type is when the other party has simply failed […]

Better to be an adulterer than an adulterer and a liar

A mentee recently asked me if one should admit an allegation of adultery in a responsive pleading when the adultery is obvious.  While I think the question has a clear cut answer, my view isn’t shared by all of my colleagues.  I continue to see adultery denials in responsive pleadings even when the adultery is […]

Reserving alimony when there’s military retirement

One of the quirks of family law is that a veteran’s military retirement is subject to equitable distribution but that veteran’s military disability is not.  South Carolina law treats military retirement as marital property. Tiffault v. Tiffault, 303 S.C. 391, 401 S.E.2d 157 (1991).  However a United States Supreme Court opinion forbids state courts from […]

Script for the beginning of each deposition

There’s a routine set of questions I ask at the beginning of every deposition.  I suspect that script would be useful for new attorneys and pro se litigants.  The reasoning for each line of questioning is indented below the question(s). • Could you please state your full name for the record? You want to establish […]

Are you cross-examining that witness for mistake, bias or corruption?

Recently one of my prior mentees was regaling me with the story of his first custody trial.  One of his concerns was his overly confrontational cross-examination of the guardian ad litem, who is a local attorney we both like.  He was unhappy with the conclusions in her report, and was attempting to undermine that report […]

What can and can’t be fixed by a family court appeal

Folks sometimes consult with me shortly before their case is going to trial to obtain a second opinion.  Typically they are either unhappy with the advice they are receiving from their current attorney, and want to know whether that advice is accurate before deciding whether to accept it, or they want to know what additional […]