The joy of supersedeas

Posted Friday, December 12th, 2014 by Gregory Forman
Filed under Appellate Procedure, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

A much younger family law colleague of mine texted me earlier this week, informing me that she was successful in her first attempt at supersedeas. After a testimonial hearing on a placement plan for a child in DSS custody, the family court judge ordered that the child her foster-parent clients had been raising almost since birth be removed from their care and be placed with relatives out of state. The date for the child’s removal was this week. Once removed, these foster parents would lose the connection they had with this child.

In her first attempt at supersedeas, my colleague convinced the Court of Appeals to stay, at least temporarily, the family court’s order. The imminent removal that was so disturbing to her clients is no longer so imminent.

Unlike appeals, which can take years to proceed from filing to briefing to argument to decision to remittitur, a request for supersedeas can produce immediate results. It is the most effective, and sometimes only, remedy to a potentially unjust result in the lower court. When I phoned this colleague to congratulate her, we both noted the giddy thrill in having a higher court intercede so dramatically and overturn a result she considered unjust. Because supercedeas is such a dramatic remedy, it is one the appellate courts rarely employ–and one most appellate attorneys rarely attempt. The few times I have successfully obtained supersedeas are always memorable because they have all relieved my clients the anxiety of living with an inequitable and, if not remedied immediately, unremediable, result from the family court.

Like any human institution, the law is imperfect and judges are imperfect. Weariness, detachment and, eventually, cynicism, are natural defense mechanisms to the disappointments of receiving imperfect justice. One reason I encourage younger colleagues who practice family law to handle appeals is because the ability to appeal an unjust result helps ward off these feelings. The ability to seek and obtain supersedeas is a reminder that a family court judge’s mistaken ruling does not have to be accepted as final.

Most young attorneys are optimistic about the practice–perhaps naively so–but the slow progression to cynicism does not lead to happiness. It is an odd commentary on the legal culture that the family law attorneys I mentor–who are mostly in their late-20’s to mid-30’s–seem much happier with their career choice than my more established peer. However few of my peer can do much with an unjust result from the family court other than complain about the apparent randomness of justice. Skills that enable optimism and discourage feelings of powerlessness are worth developing.

So kudos to my young colleague for her successful supersedeas.

2 thoughts on The joy of supersedeas

  1. Sarah Sullivan says:

    I employed the supersedeas writ option while practicing in South Carolina and also found it effective on those temporary orders that would result in harm to my client or a child. Mandamus is also an effective extraordinary writ that can be employed in family law. Even if the appellate court didn’t rule, the mere presence of a supersedeas offered the trial court opportunity to reverse itself, which it did in at least one of my cases. I had never done a supersedeas, followed the appellate rules, and voila, got some great results. I highly encourage all lawyers to learn how to do these kinds of appeals. Maybe Greg should do a CLE on them during the hot tips seminar?

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