Emergency hearings versus expedited hearings

Posted Friday, October 23rd, 2009 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

Unlike a number of my family law brethren, I seek few emergency hearings; unlike almost all of my family law brethren, I seek many expedited hearings.  My colleagues often fail to see a distinction (“you requested an emergency hearing for that!” is a frequent response when they are confronted with my request for an expedited hearing).  Sometimes I am not sure if the judges see the distinction.  Even though both types of hearing requests allow the court to consider the motion on greatly reduced notice, I perceive a distinction and I believe it’s an important one.

An emergency hearing request is something I reserve for true emergencies: my client’s estranged husband has liquidated his 401K and is about to transfer the assets to an offshore account; my client’s child’s mother is busy doing crack with convicted sex offenders in front of their child and my client needs custody to remove them from that situation; my client’s husband has grabbed their children and is purchasing plane tickets for Iran and my client needs to prevent them from leaving.  Emergency hearings typically seek substantive relief, and seek substantive relief on a temporary basis that the client will ultimately seek on a final basis.

In contrast an expedited hearing typically deals with procedural relief and is basically a form of line-jumping–asking the court to move one’s hearing request ahead of a different hearing or deadline within the case.  However, there are frequent occasions when such line-jumping is justified–sometimes even required–to prevent unfair prejudice to a client’s procedural right.

There are three common circumstances in which I request an expedited hearing: 1) to obtain a continuance of an upcoming hearing when the other party won’t consent; 2) to challenge the other party’s motion or pleading on a jurisdictional basis when the other party has scheduled a motion for temporary relief; and 3) to obtain necessary information prior to trial or the other party’s motion for temporary relief.

While I rarely request continuances over the other party’s objection, when there is good reason to do so an expedited hearing request is almost always required: if one’s hearing on the continuance request isn’t scheduled until after the hearing one seeks to continue, the request becomes moot.

The expedited hearing request to challenge jurisdiction is simply to avoid the risk and expense of preparing for a contested temporary hearing when there may not be jurisdiction for the court to actually hear the case.  Having the court change custody of a client’s children or terminate a client’s alimony only to later have the court determine it did not have the authority do so is a situation worth avoiding.  Not only will the client have been unnecessarily whipsawed through a highly emotional experience, but the client will have incurred substantial fees preparing for a temporary hearing that, in hindsight, should never have gone forward.

The most atypical (at least in my experience with other attorneys) but my most frequent expedited hearing request is when I need to obtain information from the other party to fully defend that party’s motion for temporary relief, rule to show cause, or (less frequently) trial.  Because of the odd procedural rules regarding temporary hearings in South Carolina, a party can schedule a temporary hearing requesting modification or termination of child support or alimony without having to provide the factual evidence supporting that request until the actual hearing.  If the opposing party seeks a temporary hearing to terminate alimony because my client is allegedly living with a man and my client denies this, I might seek an expedited hearing on a motion for discovery and to obtain evidence of the alleged cohabitation prior to the temporary hearing.  If the opposing party seeks a temporary hearing to terminate or reduce my client’s alimony or child support based on a claim of reduced income, I might seek an expedited hearing on a motion for discovery and to obtain evidence of the other party’s income prior to the temporary hearing.  Without obtaining such evidence prior to the temporary hearing it is impossible for me to prepare a thoughtful defense to such motions and an expedited hearing is justified.

Sometimes parties will even file a complaint or rule to show cause that, while providing notice of the claim, improperly fails to explain the factual basis for the claim. South Carolina is a fact pleading, not a notice pleading, state. Rule 8(a), SCRCP requires that claims for relief include “a short and plain statement of the facts showing that the pleader is entitled to relief…” Compare Rule 8(a), FRCP (a claim for relief shall include “a short and plain statement of the claim showing that the pleader is entitled to relief…” (emphasis added). Often a complaint or counterclaim will raise allegations that are so vague the opposing party cannot realistically defend them.  In such circumstances an expedited hearing request to make the pleading more definite and certain is justified.

Emergency hearing requests should be reserved for true emergencies.  However, when line jumping can be justified to avoid unfair prejudice to one’s client, an expedited hearing request is proper.