You ain’t my only (or even final) audience: the unacknowledged revolution that Lewis and Stoney have wrought

Posted Friday, October 5th, 2018 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Law Attorneys

By the start of this millennium I believe I had developed a reputation for overtrying my domestic cases: that is, I was considered an attorney who wasn’t satisfied with proving a contested fact though one source but would attempt to prove contested facts through as many sources as possible. The common byproduct of this approach were cross-examinations that ask witnesses a question multiple times, especially if the witness is evasive in his or her response, and calling multiple witnesses and submitting numerous exhibits to corroborate my client’s testimony or undermine the opposing party’s evidence on disputed factual issues.

With the Supreme Court’s decisions in Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011), and, more importantly, Stoney v. Stoney, 422 S.C. 593, 813 S.E.2d 486 (2017), my trial approach has gotten even more thorough. Lewis held that every substantive family law issue would be reviewed by the appellate court on a de novo standard, rather than the abuse of discretion standard that had been applied before. This shift appears subtle but is substantial. Prior to Lewis, one needed to convince the appellate courts that the family court judge had made a clearly bad decision in order to obtain modification of the family court order. After Lewis one only needed to convince the appellate court that a different outcome was more reasonable.

In the years after Lewis, the Court of Appeals continued to apply an abuse of discretion standard of review. Stoney was the Supreme Court’s attempt to really get the Court of Appeals’ attention. In Stoney the Court of Appeals, applying an abuse of discretion standard, had already so completely agreed with Wife’s appeal that it had remanded the matter back to the family court for a new trial–a result that, in my recollection, is unique for a family court appeal. Wife could not have won that appeal any more thoroughly than she had. Yet, when the Supreme Court reviewed the Court of Appeals’ decision, it remanded the matter back to the Court of Appeals to apply an even less deferential standard of review, de novo, of the family court’s decision. This could only be interpreted as an attention getting device.

This didn’t get most of my colleagues’ attention but it sure got mine. If I was overtrying my cases prior to Stoney, I’m really overtrying my cases now. Some family court judges–those who either understand or appreciate that every trial is a potential appeal–are very patient and understanding about this. Other family court judges–those who think my sole task is to convince them–are less so. I don’t care. I now try my cases with two audiences in mind: the family court judge who I am initially trying to convince, and the appellate court that I may need to convince later.

I’ve yet to blog about a recently published appeal of mine, Bojilov v. Bojilov, but one takeaway from this appeal is how much easier it is to get a reversal. The Court of Appeals in Bojilov reversed in my client’s favor on two issues: increasing her share of the equity in the marital home from 60% to 70%, and awarding her $1,450 in attorney’s fees for successfully defending a post-trial motion. On an abuse of discretion standard, I’m not sure I win either of those issues; on de novo review it’s much easier to prevail.

Because the standard of review is much less deferential, the trial judge’s credibility determinations become more important. The appellate courts now give no deference the family court’s general factual determinations–which doesn’t relieve appellants the burden of proving error. However, because the trial judge observed the witnesses and they did not, the appellate courts continue to give substantial deference to credibility determinations. In Bojilov, at the conclusion of trial, the family court judge asked both attorneys to draft proposed orders. My draft contained pages of credibility determinations and the family court judge adopted many of them, resulting in seven pages of his order addressing credibility. This helped substantially in defending the other side’s appeal.

Almost every family court attorney with some experience is experienced with motions for temporary relief but such hearings don’t require developing evidence, presenting witness testimony, cross-examining the other side’s witnesses, or considering how to bolster or undermine credibility. Even experienced South Carolina family law attorneys handle dozens of motions for temporary relief for every case they take to trial. Some attorneys handle very few trials. Most experienced family court attorneys, in deciding how aggressively to push their position in settlement negotiations, will assess opposing counsel’s trial record and experience. An attorney who lacks a reputation for successfully trying cases may get much less favorable settlement offers.

I’ve been similarly less inclined to make favorable settlement offers to attorneys who lack a reputation for successfully handling appeals of family court matters. My view is that if they can’t sustain a successful trial result on appeal, I have two opportunities to succeed and they only have one. Even before Stoney I encouraged younger attorneys to devote a small portion of their practice to family law appeals. After Stoney, developing this skill is even more important. South Carolina family law attorneys who lack appellate skills are incomplete attorneys. The family court judge is not your final audience.

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