How Lewis and Stoney made appellate skills even more vital for family law attorneys (May 2022)

Material for South Carolina Bar CLE, May 2022

Do you want to be a good trial lawyer? Handle appeals. Do you want to be a good appellate lawyer? Do trial work. Excellent trial work requires appellate knowledge. Excellent appellate work requires trial knowledge.

Two South Carolina Supreme Court cases from the last decade wrought what I believe is a revolution in family court appeals.  Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011) reads like a dry academic discussion of the standard of review under Article V, § 5 of the South Carolina Constitution. That section provides that appellate jurisdiction in cases of equity requires that appellate courts “review the findings of fact as well as the law.”  The Supreme Court took this to mean de novo review was the proper standard for review of substantive issues on appeals from family court.  Previously, appellate courts addressing family court orders were conducting review under an “abuse of discretion” standard.

Per Lewis, de novo review grants appellate courts “authority to make our own findings of fact.” However, “we recognize the superior position of the family court judge in making credibility determinations. Moreover, consistent with our constitutional authority for de novo review, an appellant is not relieved of his burden to demonstrate error in the family court’s findings of fact. Consequently, the family court’s factual findings will be affirmed unless appellant satisfies this court that the preponderance of the evidence is against the finding of the family court.”

In a refiled April 2018 opinion in Stoney v. Stoney, 422 S.C. 593, 813 S.E.2d 486 (2017), the Supreme Court did two things. In footnote two, it noted procedural and evidentiary issues on appeals from family court would continue to be reviewed under an “abuse of discretion” standard.  Second, it remanded the appeal to the Court of Appeals for failing to conduct a de novo review. It did this even though the Court of Appeals, reviewing under an “abuse of discretion” standard, had found the trial process so riddled with error that it ordered a new trial—a remedy I do not recall the appellate courts ordering in the 30 years I have been reading published appellate opinions on family law. I read the Supreme Court’s remand as essentially telling the Court of Appeals, “De novo review: We really mean it.”

If there is South Carolina case law discussing the distinction between “de novo review” and “abuse of discretion” review, I have not been able to locate it.  Lewis adequately describes de novo review.  The case of Abate v. Abate, 377 S.C. 548, 660 S.E.2d 515 (Ct.App. 2008), provides a definition of “abuse of discretion” that affords a much narrower review: “The term ‘abuse of discretion’ does not reflect negatively on the trial court; rather, it merely indicates the appellate court believes an error of law occurred in the circumstances at hand.”

In practice, Lewis and Stoney provide the appellate courts much greater latitude to reverse a family court order.  The “abuse of discretion” standard required appellants to show clear error on the part of the family court.  While “de novo review” does not relieve appellants the burden of proving “the preponderance of the evidence is against the finding of the family court,” that is much easier than proving family court error.

My method of thinking about the distinction is as follows.  Under “abuse of discretion” an appellant needed to prove that there was no way a reasonable family court judge could have reached that decision. Under “de novo review,” an appellant can obtain a modification or reversal merely by proving the preponderance of the evidence leads to a similar but different conclusion.  Take for example of an alimony award. If the appellate courts, prior to Lewis and Stoney, believed any amount between $500 and $1,500 per month was reasonable, it would have affirmed any award between those figures as being within the family court judge’s discretion.  Now, if the family court awarded $500 per month but the appellate court believed $750 was more reasonable based upon the preponderance of the evidence, it will modify the award to $750.

Surprisingly, de novo review appears to have been causing the appellate courts to give less deference to family court’s credibility determinations, despite Lewis explicitly noting the continued reliance upon such findings.  The only opinion  prior to Lewis I recall challenging a family court’s credibility determinations was McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified 383 S.C. 150, 679 S.E.2d 172 (2009). The same month Lewis issued, I had an appeal in which the Court of Appeals affirmed on “implicit” credibility determinations despite the trial court cutting off my cross-examination on that issue because I had made my point.

Since Lewis, six published family court opinions have issued in which the appellate courts explicitly rejected the family court’s credibility determinations: Ward v. Washington, 406 S.C. 249, 750 S.E.2d 105 (Ct. App. 2013); Srivastava v. Srivastava, 411 S.C. 481, 769 S.E.2d 442 (Ct. App. 2015); Conits v. Conits, 417 S.C. 127, 789 S.E.2d 51 (Ct. App. 2016); Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019); Bauckman v. McLeod, 429 S.C. 229, 838 S.E.2d 208 (Ct. App. 2019); and Taylor v. Taylor, 434 S.C. 307, 863 S.E.2d 335 (Ct. App. 2021). Conits went to the Supreme Court twice, the second time in an unpublished opinion in which the Supreme Court explicitly rejected the family court’s credibility finding that a farm in Greece was 30 acres with Husband’s half interest valued at $1,420,000.00 and instead found Husband’s interest worth $35,000 to $40,000. That is a $700,000 swing in equitable distribution premised on a reversed credibility determination.

Even oral argument is different under de novo review.  Examples worth observing are from the October 30, 2019 oral argument in Conits v. Conits at 29:40-29:55 and the June 13, 2019 oral argument in Stone v. Thompson at 17:05-17:30, 24:25-24:55, 25:29-26:20

The irony of appellate practice is while most attorneys are intimidated by appeals, law school does a better job preparing one to handle appeals than to handle trials.  The legal memos law students spend time drafting are quite similar in concept to the briefs that appellate practice requires. The Socratic method of law school instruction is similar to appellate oral argument.   One emerges from law school well equipped to handle appeals and with minimal training in the evidence gathering, witness preparation, and factfinder persuasion that are the bases of good trial advocacy.  Many family law attorneys appear intimidated by appeals.  They should not be.  Appealing is easier than you think.

There are only three firm deadlines in the appellate court: service of the notice of appeal (Rule 206, SCACR); the petition for rehearing (Rule 221, SCACR); and the petition for a writ of certiorari (Rule 242, SCACR). If requested, appellate courts will often extend deadlines on the last two. The South Carolina Courts website contains handy templates for any document that an appellate attorney will need to prepare.  There is even a useful flow chart for the appellate process. My experience is that the appellate court clerks are happy to answer questions on procedure or format.  Further, other than the three deadlines noted above, the appellate courts will typically warn attorneys and provide a chance to correct when they miss deadlines.

Even if one does not intend to emphasize appellate practice, the skills one develops handling appeals improve one’s trial level skills.  Handling appeals requires an attorney to become and remain familiar with changes in the relevant statutory and case law.  Attorneys who handle appeals are, in my experience, rarely surprised by recent changes in statutory law, or unaware of recent appellate court decisions that impact their cases.

Handling appeals also forces an attorney to focus on error preservation issues.  A sizable portion of family court appellate opinions have one or more issues that the appellate court refused to consider because the issue was not properly preserved for appeal.  It is my experience that trial attorneys who have never handled an appeal (or have not handled one recently) often fail to do things that are required to preserve issues for appeal: stating the basis for an objection to evidence if the objection is overruled; failing to proffer improperly excluded evidence and explaining the reason the excluded evidence is admissible; failing to consider what issues should be raised at trial to obtain the requested relief; failing to seek reconsideration of issues that were raised but not ruled upon in the final order.

While even experienced appellate attorneys are imperfect on error preservation issues, they tend to be much better at error preservation than attorneys who do not handle appeals.  Further attorneys who handle appeals know that a trial is often a first step, and not the final step.  Therefore, they are cognizant of the need to create an evidentiary record at trial that would allow an appellate court to affirm any victory they achieve. This tendency to fail to understand error preservation issues actually affects my negotiation posture with opposing attorneys.

If I know the other attorney will try a case in which he or she preserves error and makes a record, I have a greater expectation that opposing counsel will be able to preserve any “victory” on appeal, and a lessened expectation of being able to reverse results on appeal merely because the other attorney failed to make an adequate record.  Further, any victory I achieve is much more likely to be reversed on appeal if the lower court commits error because that attorney will be in a position to ensure that such error has been preserved so that it can be raised on appeal.  Thus, the less likely opposing counsel is to be able to handle an appeal of the case, the more aggressive the position I am comfortable taking in settlement negotiations.

Finally, knowing how to appeal one’s own cases subtly alters how one tries cases.  An attorney who never handles an appeal approaches trial thinking, “how do I get the family court judge to rule in my client’s favor.”  The attorney who handles appeals approaches trial thinking, “what evidence and legal issues will I need to establish at trial so that the family court judge will grant my client the relief he or she seeks and the appellate court will sustain it.”

This distinction, though subtle, is vital.  The trial attorney who handles appeals approaches trial by first understanding the legal principles that need to be established to have the client achieve his or her goals.  That attorney will then decide what evidence can be marshaled to support these legal principles.  If there is minimal evidence to support a particular goal, that goal can be eliminated, or the focus upon it diminished, or, if that goal remains vital the client, counsel can seek to obtain additional evidence to help achieve that goal.  Such attorneys can further highlight areas in which the client is likely to achieve his or her goals to make that client appear “reasonable.” 

In contrast, the trial attorney who does not handle appeals is more prone to simply “put up” whatever evidence he or she can and then hope for the best. Because attorneys who handle appeals think about these legal and factual issues before trial, rather than after trial, the process of handling an appeal also becomes easier as the basic skeleton of an appeal brief–the facts that need to be established; the legal principles at issue–have already been outlined.  Appellate lawyers are much more likely to organize trial testimony so it fully covers a subject and then flows smoothly to another subject.

Handle enough appeals and one will do a better job ensuring adverse witnesses–especially the opposing party–actually answers one’s yes/no questions. In the heat of cross-examination, argumentative or self-serving answers to yes/no questions often cause trial attorneys to go on to the next question–especially if the answer to the question helps one’s own client. However, that yes/no question still did not get answered. If you want to find how bad your brilliant direct or cross examination was, read your trial transcripts. You will then learn to ask better questions.

When appellate counsel or an appellate judge is later reading the trial transcript, they may be able to infer the answer would not be favorable to that witness or party. But they will not actually know the answer. The problem is that the trial judge is observing the evasive witness’ demeanor and is likely drawing helpful (to one’s client) inferences from this evasiveness. However, while a witness’ evasiveness is observable in the courtroom, it is less apparent on the printed page. It may seem pointless to demand an answer to a yes/no question when the evasive response is already helpful. The trial judge already “understands.”

Asking for an explicit answer will appear to that judge as belaboring the point. By the time one has asked the judge the fifth or so time to ask the witness to answer the yes/no question with either a “yes” or a “no,” one will likely be trying that judge’s patience. Thus, no trial attorney is immune to the temptation of moving on after the umpteenth evasive answer. Even reading my own cross-examination transcripts shocks me with the numbers of times I have allowed an evasive answer to suffice because of the sheer difficulty in forcing a non-evasive answer from the witness.

Yet, when it is time to put together a factual argument for appeal, a failure to get an actual answer to these yes/no questions will make that argument more difficult. An evasive answer may establish some useful fact but it will establish the useful fact trial counsel asked about. No matter how “obnoxious” trial counsel may appear in demanding an actual answer to his or her yes/no questions, that attorney greatly assists appellate counsel in doing so.

Trial attorneys who handle appeals also know that even if a fact appears uncontroverted, one should ask it of both parties (or at least of the other’s side’s witnesses). In appeals from family court the appellate court may to make its own factual determinations. However, the appellate court will give great deference to the family court’s credibility determinations. Merely because a fact is uncontroverted does not mean the factfinder had to accept it. The appellate court, encountering the uncontroverted testimony of the appellant, may discount it simply because it believes the family court did not find this testimony credible. This is especially true if the family court made explicit factual findings against the appellant’s credibility.

In contrast, when both parties testify to the same fact, it would be shocking if the appellate court did not consider that fact conclusively established. Even if one can only corroborate a fact through the other side’s witnesses, that fact is likely to be considered conclusively established so long as the opposing party does not explicitly dispute it. Too often, trial attorneys fail to establish important facts through the opposing party’s testimony because their own client has or will testify on that fact. However, failing to get the other side to corroborate this fact is to assume that the court (both the family and appellate) will find one’s client credible.

Even for uncontroverted facts, that is never a safe assumption. Trial attorneys who handle appeals understand the importance of getting the opposing party to corroborate every helpful fact that the other side will corroborate. Often this requires getting “yes” or “no” answers to yes/no questions, which should highlight the importance of the advice above.

Finally, trial attorneys who handle appeals do a better job of ensuring what they think is part of the trial record is actually part of the trial record A few years ago I lectured on preparing for family trials and my lecture materials were an outline. Within that outline is a segment, item 4(g), that I suggest doing well over a month before trial: “Begin thinking about testimony outline for client and opposing party.” If it appears I am really into outlines–I am–it is because outlines ensure you get the work done properly. Outlining the testimony and facts one hopes to establish through each witness–especially the client and opposing party–ensures that all significant and material facts are established at trial.

The reason I began preparing this outline weeks before trial, and frequently update and review it with my client, is to minimize the chance that my client and I fail to ask questions or introduce evidence that establishes helpful facts.  Outlines are important for many reasons. If you outline questions, you will frequently realize you need a better foundation for the ultimate question. Your outline is a checklist to ensure you cover each point you intended. Outlines will ensure you use the magic words required for relief. Still, one cannot be a slave to the outline. You must ad lib some questions and omit others, but you should always return to your outline.

 In almost every appeal I have ever handled, the appellant will want me to make a factual argument that I cannot make because the facts to make it are not in the trial transcript or exhibits. Often these clients are absolutely certain that evidence or testimony was presented to the trial court. Even after I challenge them to locate these “facts” in the trial transcript and exhibits, and they discover they cannot, they often still insist the facts are there somewhere. It is a frustrating experience for both of us. If it is a substantial fact that failed to make it into the trial record, the client will perceive his or her trial counsel as failing. By thinking about appeals at the time one begins trial preparation, one actually strengthens one’s case at trial.

Trial advocacy skills and appellate advocacy skills are complementary.  Obtaining competency in one improves one’s ability in the other.  The better lawyers spend more time writing than talking. Lawyers write letter, pleadings, motions, discovery requests and responses, trial briefs, and settlement offers. Enhanced writing skills enhance the lawyer’s legal skills. Writing trial and appellate briefs enhances one’s skill at every level and every area of the law. A family court attorney who is comfortable handling appeals is simply a better trial attorney.  With the expanded review of Lewis and Stoney, developing this skill is vital.