Should one verify what doesn’t have to be verified?

Posted Monday, March 24th, 2014 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

An old mentee of mine asked me if he should verify pleadings given that Rule 11(a) of the South Carolina Rules of Civil Procedure no longer require verifications.  That rule reads, “Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.”  A larger question is whether one should verify discovery responses that do not required verification, such as responses to requests to produce or requests to admit.  It’s an excellent question with no obviously correct answer.

One school of thought–the one I subscribe to–is not to verify anything that doesn’t require verification.  An attorney’s signature on a pleading, motion or discovery response “constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.” SCRCP 11(a).  Signing such a document merely means that an attorney’s investigation, which often relies primarily upon the client’s representations, has provided good ground to support the document.  Adding a client’s verification now subjects a client to greater impeachment potential, and possible perjury prosecution, if the allegations are inaccurate.  In cases of such error I would rather claim misunderstanding or inartful pleading than have my client subjected to greater impeachment potential.

One colleague, Anne Frances Bleecker, takes the opposite position.  She has her clients verify everything that can be verified.  Her reasoning is that a verified document carries greater weight with the court because the client stands behind its accuracy.  Further, in having the client go through the process of verifying the document, she insures that the client is heavily invested in that document’s accuracy.

I won’t deny there is wisdom in Ms. Bleecker’s approach so long as one understands such verification is rarely necessary (SCRCP 33(a) makes interrogatory answers the typical exception) and that the decision to require a client’s verification is a deliberate one.  Her approach probably results in greater factual accuracy in one’s pleadings, motions and discovery responses but also results in greater damage to the client when such documents are inaccurate.

2 thoughts on Should one verify what doesn’t have to be verified?

  1. Gary Frazier says:

    I was thankful I always do verified complaints on fault-based divorces when I had a client who reconciled with her (abusive) husband claim she never told me he hit her. The husband (while the divorce case was going on) tried to sue me in the Court of Common Pleas for filing a “frivolous” divorce case. He also sued the clerk of court for “allowing” a frivolous divorce case to be filed.

  2. Megan Dell says:

    I remember your discussion about this with Diane Current three years ago. I generally have my clients review and confirm the accuracy of each document (in writing) before I submit it, but I don’t file that with the Court. I’ve had that method protect me in at least one case so far.

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