Emergency hearings versus expedited hearings

Posted Friday, October 23rd, 2009 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

Unlike a number of my family law brethren, I seek few emergency hearings; unlike almost all of my family law brethren, I seek many expedited hearings.  My colleagues often fail to see a distinction (“you requested an emergency hearing for that!” is a frequent response when they are confronted with my request for an expedited hearing).  Sometimes I am not sure if the judges see the distinction.  Even though both types of hearing requests allow the court to consider the motion on greatly reduced notice, I perceive a distinction and I believe it’s an important one.

An emergency hearing request is something I reserve for true emergencies: my client’s estranged husband has liquidated his 401K and is about to transfer the assets to an offshore account; my client’s child’s mother is busy doing crack with convicted sex offenders in front of their child and my client needs custody to remove them from that situation; my client’s husband has grabbed their children and is purchasing plane tickets for Iran and my client needs to prevent them from leaving.  Emergency hearings typically seek substantive relief, and seek substantive relief on a temporary basis that the client will ultimately seek on a final basis.

In contrast an expedited hearing typically deals with procedural relief and is basically a form of line-jumping–asking the court to move one’s hearing request ahead of a different hearing or deadline within the case.  However, there are frequent occasions when such line-jumping is justified–sometimes even required–to prevent unfair prejudice to a client’s procedural right.

There are three common circumstances in which I request an expedited hearing: 1) to obtain a continuance of an upcoming hearing when the other party won’t consent; 2) to challenge the other party’s motion or pleading on a jurisdictional basis when the other party has scheduled a motion for temporary relief; and 3) to obtain necessary information prior to trial or the other party’s motion for temporary relief.

While I rarely request continuances over the other party’s objection, when there is good reason to do so an expedited hearing request is almost always required: if one’s hearing on the continuance request isn’t scheduled until after the hearing one seeks to continue, the request becomes moot.

The expedited hearing request to challenge jurisdiction is simply to avoid the risk and expense of preparing for a contested temporary hearing when there may not be jurisdiction for the court to actually hear the case.  Having the court change custody of a client’s children or terminate a client’s alimony only to later have the court determine it did not have the authority do so is a situation worth avoiding.  Not only will the client have been unnecessarily whipsawed through a highly emotional experience, but the client will have incurred substantial fees preparing for a temporary hearing that, in hindsight, should never have gone forward.

The most atypical (at least in my experience with other attorneys) but my most frequent expedited hearing request is when I need to obtain information from the other party to fully defend that party’s motion for temporary relief, rule to show cause, or (less frequently) trial.  Because of the odd procedural rules regarding temporary hearings in South Carolina, a party can schedule a temporary hearing requesting modification or termination of child support or alimony without having to provide the factual evidence supporting that request until the actual hearing.  If the opposing party seeks a temporary hearing to terminate alimony because my client is allegedly living with a man and my client denies this, I might seek an expedited hearing on a motion for discovery and to obtain evidence of the alleged cohabitation prior to the temporary hearing.  If the opposing party seeks a temporary hearing to terminate or reduce my client’s alimony or child support based on a claim of reduced income, I might seek an expedited hearing on a motion for discovery and to obtain evidence of the other party’s income prior to the temporary hearing.  Without obtaining such evidence prior to the temporary hearing it is impossible for me to prepare a thoughtful defense to such motions and an expedited hearing is justified.

Sometimes parties will even file a complaint or rule to show cause that, while providing notice of the claim, improperly fails to explain the factual basis for the claim. South Carolina is a fact pleading, not a notice pleading, state. Rule 8(a), SCRCP requires that claims for relief include “a short and plain statement of the facts showing that the pleader is entitled to relief…” Compare Rule 8(a), FRCP (a claim for relief shall include “a short and plain statement of the claim showing that the pleader is entitled to relief…” (emphasis added). Often a complaint or counterclaim will raise allegations that are so vague the opposing party cannot realistically defend them.  In such circumstances an expedited hearing request to make the pleading more definite and certain is justified.

Emergency hearing requests should be reserved for true emergencies.  However, when line jumping can be justified to avoid unfair prejudice to one’s client, an expedited hearing request is proper.

5 thoughts on Emergency hearings versus expedited hearings

  1. Great blog! And, Happy Birthday!

  2. Mindy Schneider says:

    You are the BEST. I love reading your articles. If I needed a lawyer, you would be the one.

  3. Susan says:

    Hello i have a situation where a rental I own was foreclosed on I did everything in my power to keep it but in the end .. I have tenants with a lease that doesn’t expire until January 2017 the bank was well aware of this. After they took the property back in September of. 2015 I contacted them to ask where my tenant was to make payments to them my inquiries were ignored I walked into my post office on December 28 th and the postal clerk says you have been getting mail to your rental address we know you don’t live there and we have been sending it back here are more papers that just arrived. Inside was an unlawful detainee action that has been going on without my knowledge since October of 2015. The writ of execution has been filed and any day the sheriff is going to be at my tenants home to remove them neither my tenants nori I were notified served mailed NOTHING ! In regards to this action. I immediately contacted an attorney who is filing papers with the court on Monday. No service of summons. Tenants under new law have aright to remain etc etc. BUT the sheriff will be there any day to take them out. They have many possessions. The garage is filled with their personal items the home too Do I have the right to Ask my lawyer to file for an expedited or emergency hearing.? We were not served I know we will prevail but how can I stop this writ of possession in the meantime before our court date ?? ( ironically , when they were foreclosing on me they knew my home address my business address but with the unlawful detainer not a scrap of paper Siri receive I am named as a defendant on the unlawful detainee papers

  4. Koreshia McLemore says:

    My son’s has a daughter with a young lady who refuses to allow him to see her. We have gotten the paternity test results and now want to exercise his rights. The young lady is homeless living from place to place. This week she is in a shelter in FF and attending the adult school to get her GED. We have a hearing set for April but at the time they set it out so far because we didn’t know where she was and it was to allow us time to locate her and server her. Now that we know where she is and has served her we would like the matter expedited. We are extremely concerned about the child’s welfare with the mom in a shelter and possible on the streets. We are also fearful that the mom will try and leave town with the infant. What if anything can we do?

  5. Spencer says:

    Thank you! As a pro se litigant this was very helpful.

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