My client, for completely explicable reasons, but much to my disappointment, has decided not to seek rehearing and eventual certiorari of the unpublished May 18, 2011 Court of Appeals opinion in Dulaney v. Dulaney. In a completely related item, I just finished my second day of cross examining an alleged contemnor in a rule to show cause with further trial set for June.
I lost the appeal in Dulaney (and, according to the Court of Appeals, apparently lost the family court trial) due to a final order that “implicitly reflects a determination Mother was credible on the issue of the parties’ agreement.” Evidently family court judges are now authorized to make “implicit” factual findings.
This Court of Appeals determination would generally bother me because family court final orders are supposed to make explicit factual findings. See Rule 26(a), SCRFC (“An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision”) (emphasis added). It bothers me more in this particular case for myriad additional reasons.
First, I filed a Rule 59(e) motion asking the family court to make explicit factual findings on credibility and on the nature of the parties’ agreement, which the family court refused to do. Second, the family court curtailed my cross examination of the mother on the issue of credibility. Third, while curtailing my cross examination of mother on the issue of credibility, the family court judge told me to “move on” because she acknowledged I had made my point that the mother wasn’t credible regarding one part of her testimony regarding the agreement. Fourth, mother and her attorney made incredible assertions to the family court regarding an alleged typo in one of her pleadings, in which the typos perfectly matched my theory of the case and, even if typos, would only randomly occur one time in one hundred thousand. Fifth, mother had filed a financial disclosure form in a different case that matched my client’s theory of the case but undermined her theory of the case. Finally, there was substantial uncontoverted testimony from third parties that supported my client’s claim and undermined the mother’s claim. That’s a lot of explicit credibility evidence to be undermined by “implicit” credibility findings.
So how is my loss in Dulaney related to my two-day-and-still-going cross examination? Well, if the family court is allowed to make “implicit” credibility determinations and the appellate courts are going to affirm family court judges by finding these judges made implicit credibility determinations, I am going to spend as much time as the family court judge will allow me to show the opposing party is not credible. Too often when an opposing party is asked a hard question I am provided a non responsive answer. I used to figure that a few such non responsive answers demonstrated a lack of credibility. No more. Now I’ve got to keep asking until I get a responsive answer and then compare the numerous non responsive answers to determine if the different answers give rise to other lines of attack on credibility. The image I have is of a pit bull that won’t some chewing someone’s leg. It ain’t pretty but it appears to be necessary.
A loss based on implicit credibility determinations has a WTF quality to it. My only solace is that this six page opinion is unpublished and thus few judges and colleagues are likely to learn about this loss. I remind myself that I criticized the Court of Appeals in 2009 for its numerous non summary unpublished opinions and am reminded of Barry W. Knobel’s wisdom on the five stages of the attorney’s career with the last stage being “hypocrite – the worst of the lot.” Yup, that’s me.
Greg, you have some legitimate complaints in Dulaney, the chief being that you filed a motion to reconsider seeking explicit findings, the trial judge “blew you off,” and the court of appeals summarily accepted the trial court’s denial of your motion to reconsider.
I think maybe you are learning the wrong lessons from Dulaney. Life is full of implicit findings of credibility. When Lucy says “stop,” I stop. That is an implicit finding by me that she is credible. Likewise, when one witness testifies to a fact and the court makes a finding of that fact, it is an implicit finding of incredibility. If that same fact is controverted by three other witnesses, but the court still finds it as the first witness testified, that is an implicit finding that the three witnesses are not credibile.
The problem with the pit bull analogy is that neither judges nor juries like pit bulls. Your task, which is difficult for you, is to have the trial judge see the witness as the pit bull and to see you as the Labrador Retriever that is being abused by the pit bull. If the witness does not answer the question, just ask “Judge, will you please direct the witness to answer the question” or if you want to make it a semi cheap shot, “Judge, will you please direct the witness to answer the question so that we can move on with this case.” You are not going to win points beating up the witness but you will if the witness in being the jerk while you are being the decent patient lawyer.
This may sound hypocritical to those who saw me in the courtroom at your age; however, I continue to learn.