Does your work product convey seriousness?

Posted Sunday, September 15th, 2019 by Gregory Forman
Filed under Law Practice Management, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys

With every litigation both parties have the options of settlement or trial. One factor in deciding whether and on what terms to settle is how seriously the other side appears in its preparation to take the case to trial. A less prepared opposing party presents lower risks at trial and allows a more aggressive approach in settlement negotiations. A well prepared opposing party suggests greater risks at trial, which encourages settlement and less aggressive postures in settlement negotiations. The work product that other party produces as part of the litigation process conveys important information about that party’s seriousness or lack thereof. The following are the most common examples of how work product can convey an attorney’s thoughtfulness and seriousness in family court litigation:

1.Pleading for discovery

It’s been over two years since Rule 25 of the family court rules authorized open discovery. While I believe requests for procedural relief don’t belong in pleadings, a request for discovery is clearly unnecessary–and hasn’t been necessary since May, 2017. If you are still pleading for discovery, you convey that you don’t stay current on the law. That conveys a lack of seriousness.

2, For Plaintiffs, not serving discovery with the complaint

In a contested case–and settlement versus trial is only a consideration in contested cases–there is zero excuse for not serving discovery with the complaint. It rarely takes me more than an hour to draft discovery. The initial discovery to be served with the complaint can be limited (with more extensive discovery to follow). Why would one not want to know the information that answers to standard interrogatories and a few boilerplate supplemental interrogatories and requests for production provide? How long would it take to add a few supplemental interrogatories, requests for production, and requests for admissions that indicate Plaintiff’s counsel is already giving thought to preparing to try contested issues?

If the matter is serious–and why file a lawsuit if it isn’t?–why isn’t the Plaintiff’s counsel using discovery to develop information that might lead to a more favorable resolution? When you fail to serve discovery with your initial complaint, you convey a lack of seriousness.

3. For Defendants, not serving discovery shortly after being served

Normally a party has thirty days after service of interrogatories, requests for production, and requests for admissions to serve responses. However, a quirk in the rules regarding discovery is that a Defendant does not have to serve responses to such discovery requests until 45 days after service of the summons and complaint. Thus, if a Defendant can serve such discovery requests within 14 days of being served with the summons and complaint, the Defendant can require responses to his or her discovery before having to respond to the Plaintiff’s discovery–even if the Plaintiff served discovery requests with the complaint.

Often Defendant’s counsel will be retained close to or more than 14 days after service of the summons and complaint. In those cases, one cannot take advantage of this quirk. However a Defendant’s counsel who understands this rule, and issues thoughtful discovery requests shortly after the Defendant is served with the complaint, is conveying seriousness.

4. Not filing an answer before the first temporary hearing

Rule 41, SCRCP, allows a Plaintiff to dismiss his or her complaint once, as a matter of right, if no answer has yet been filed. When a Plaintiff gets a disastrous, or even merely disappointing, result at a temporary hearing, and no answer has been filed, that Plaintiff can dismiss the case, essentially voiding the result of the temporary hearing, and file a new case. The Plaintiff and Plaintiff’s counsel can use what they learned from the Defendant’s submissions at the temporary hearing to build a stronger case for the temporary hearing in the new case. But, if an answer has been filed, the Plaintiff loses this ability.

A Defendant’s attorney who doesn’t file an answer by the time of the temporary hearing runs the risk of having a successful result at that hearing become lost if the Plaintiff decides to dismiss the case. A Defendant’s attorney who fails to file an answer at or prior to the temporary hearing conveys a lack of preparation.

5. Submitting temporary hearing affidavits filled with wild or inaccurate allegations

Some family court attorneys believe it to be a fruitful strategy to throw a bunch of mud at the temporary hearing. The intent is to sway the judge towards a favorable temporary hearing result and use the favorable temporary hearing order to encourage a favorable settlement. There are two problems with this strategy.

First, family court judges are increasingly unlikely to be swayed by wild allegations in temporary hearing affidavits. Even in custody cases, in which judges will want the allegations investigated well before trial, judges are likely to appoint a guardian and set a de novo review hearing on custody in 30-60 days. The likelihood of being able to maintain a favorable temporary hearing result through trial by raising wild allegations is much lower than it was when I began practicing 25 years ago.

Second, filling temporary hearing affidavits with wild or inaccurate allegations makes it harder to actually proceed to trial. At trial, a party “owns” every allegation in the affidavits he or she submits at the temporary hearing–that is, these allegations become the litigant’s own allegations. There is no good way to repair the credibility of a litigant who has submitted wild or inaccurate affidavits at the temporary hearing. Especially in custody cases, where so much of the factual finding turns on credibility, a credibility-damaged client has a damaged case, as it is hard to try a case when one’s client has major credibility problems. And if the other side understands this, it can take a much more aggressive position in settlement negotiations.

If one’s temporary hearing affidavits treat family court like TV court (histrionics and wild allegations), one isn’t conveying seriousness or thoughtfulness. Failing to edit the affidavits that one submits at the temporary hearing to remove the inaccurate and wild indicates a failure to pay attention on the part of that party’s attorney

6. Issuing nothing but boilerplate discovery or discovery that is not aligned with the disputed issues

One might not have the time to issue case-specific discovery at the very beginning of the case. Further, one might want to wait for an answer or a reply to counterclaim and the temporary hearing affidavits before issuing supplemental interrogatories and requests for admissions–as one will then have a better idea of where the primary factual and legal disputes lie. However, if one fails to issue thoughtful, case-specific discovery tailored to the primary factual and legal disputes after these events occur, one is conveying a lack of attention to the case.

7. Attending mediation without a clear understanding of goals or holding onto wildly unrealistic goals throughout mediation

One should always enter mediation with clear goals in mind. There should be goals a client is willing to risk trial to achieve, goals a client strongly desires but may be willing to forgo, and goals a client is happier to set aside in order to obtain the goals of the former two categories. One doesn’t need to enter mediation with explicit lists, but why would one enter mediation without a clear understanding of which goals are vital, which are merely desirable, and which can be traded for more important goals?

Yet I often spend 2+ hours in the mornings of mediation waiting for the other party to determine goals so that party can make a proposal. The initial rounds with the mediator should be spent determining how best to frame one’s proposal to meet one’s vital goals and achieve some of the other goals. If they are spent determining what the goals actually are, that party is wasting everyone’s time and money and conveying a lack of preparation. If the other side’s first meeting with the guardian takes more than 90 minutes, I assume they weren’t prepared for mediation. And if they aren’t prepared at mediation, why would I believe they will be prepared for trial?

Further if late in the afternoon, that party is still pursuing unrealistic goals after hearing a firm “no” from my client, I assume that party and/or his or her attorney doesn’t understand the case. If they don’t understand the case by the time of mediation, it’s unlikely they will understand it by the time of trial.

When one attends mediation with a lack of clear goals, or spends mediation pursuing unrealistic goals well into the afternoon, one conveys a lack of seriousness.


How a family court attorney handles or mishandles the issues above conveys his or her seriousness and thoughtfulness about the case. If a party’s own attorney won’t treat the client’s case seriously, why should the opposing party and counsel do otherwise?

There are not many attorneys who regularly practice family law in the geographic area in which I practice. For each of those attorneys I have a mental image of their level of preparation and seriousness–which changes over time if that attorney learns how to be better prepared and more serious or starts becoming slack in his or her preparation. Attorneys I perceive of as serious and prepared get much more favorable proposals and much greater consideration of their demands than those I don’t. Since I can have multiple cases with the same attorneys in the period of a few years, I would hope these attorneys careful tend to their reputation for seriousness and preparation with me. I certainly try to tend to my reputation for seriousness and preparation with them.

I assume that every thoughtful family court attorney keeps a similar mental checklist regarding the attorneys they frequently encounter. Use your work product to convey thoughtfulness and seriousness and your will get better results for your clients.

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