Pet peeve: certificates of service in South Carolina trial courts

Posted Friday, October 9th, 2020 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

Can someone please explain why so many attorneys prepare, and often file, certificates of service in South Carolina trial courts? I assume it’s because they learned about these certificates in law school and never bothered to read the South Carolina Rules of Civil Procedure. I’ve always found the habit annoying (extra paperwork I had to handle) but it’s become extra annoying now that a few of my colleagues are filing those certificates of service with the family court (one more item to keep track of on courtplus).

In law school civil procedure is typically taught via the federal rules, simply because those rules apply to federal courts nationwide. Rule 5(d)(1), FRCP, actually reads Required Filings; Certificate of Service. Emphasis in original. It requires filed certificates of services for many litigation documents (although many fewer now that federal courts allow electronic filing). Law students learn these rules so they learn to do certificates of service. If they practice in federal courts or South Carolina appellate courts, that’s an excellent habit. Otherwise, it’s a waste.

In contrast, to the federal rule, Rule 5(d), SCRCP, doesn’t contain a subsection one and never mentions certificates of service. Rule 4(g), SCRCP, requires an affidavit of service of the summons and complaint be promptly filed with the court. South Carolina’s appellate court rules have a proof of service requirement similar to the federal rules–requiring proof of service of “[a]ny document filed with the appellate court.” Rule 262(a)(2), SCACR. Fail to file such proof in the appellate court and the clerks will quickly remind you one is necessary.

But at the trial court level, one only needs to file proof of service of the original complaint. All other service can be accomplished via regular mail. Rule 5(B)(1), SCRCP. A letter indicating what is being transmitted suffices to “prove” service. [Actually, in the midst of the Coronavirus pandemic, email service to South Carolina attorneys is sufficient, a method of service that I suspect the South Carolina Supreme Court may keep operative after the pandemic ends].

Filing proofs of service in the family court for anything other than the summons and complaint or a rule to show cause wastes an attorney’s time and a client’s money and demonstrates that the attorney has never read Rule 5(d), SCRCP.

2 thoughts on Pet peeve: certificates of service in South Carolina trial courts

  1. Gary Frazier says:

    I agree with your premise, but would add this: I typically file a certificate of service for a temp or final order mailed to a pro se defendant. This protects me down the road from the defendant claiming they “never got the order” and me not having any documentation that I actually mailed it to them.

  2. Greg, with limited exceptions, such a notice of hearing to an unrepresented party (Rule 17(a), SCRFC), I agree “All other service can be accomplished via regular mail.” I also agree the rules are silent on proofs, certificates, or affidavits of service of pleadings, motions, or other papers after the summons and complaint. “In any case where no provision is made by statute or these Rules, the procedure shall be according to the practice as it has heretofore existed in the courts of this State.” Rule 81, SCRCP) Because the rules do not address proof of service subsequent to the summons and complaint, those proofs of service are controlled by previous practice, which included filing proofs of service.
    When I serve or file by mail, I rarely include a letter. I give the clerk of court and office conference with credit for sufficient knowledge and intelligence to understand why they are receiving the document without a silly letter beginning with the stuffy and archaic, “Enclosed herein please find the ….” Most of my templates include a certificate of service by mail at the end of the document, which usually does not require an additional page and provides the court with my contemporaneous record of having served by mail.
    I appreciate your blog, you curiosity about procedural and substantive law, and your willingness to question foolish practices. I regret more lawyers do not exhibit these traits.

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