Material for South Carolina Bar’s Bench/Bar CLE
One doesn’t often encounter family court attorneys discussing the issue of their reputations for credibility with the family court. That reputation is a hidden skill (and it is indeed a skill one can acquire) that generates benefits for all of one’s clients. While I cannot prove it (and I highly doubt any family court judge would confirm it) I believe a reputation for credibility makes it more likely that one’s emergency and ex-parte requests will be granted, that one’s oral arguments will be given stronger consideration, and that one will be more likely to obtain the benefit of the doubt when needing extensions, continuances, or relief from one’s mistakes.
Developing this reputation isn’t difficult (although it takes time) but it can be squandered easily. Anxious clients will ask us to risk our reputation for credibility to push questionable claims. No client’s case is worth losing a reputation for credibility.
How does one develop a reputation for credibility?
Candor towards the tribunal is embedded in our ethics rules. Rule Professional Conduct 3.3(a)(1) prohibits an attorney from knowingly making “a false statement of fact or law to a tribunal.” Rule 3.3(a)(3) prohibits an attorney from “offer[ing] evidence that the lawyer knows to be false.” Further, under that subsection, “[i]f a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
Obviously lying to the court or suborning perjury is an easy way to ruin one’s reputation for credibility. I have represented attorneys in domestic case who had been disciplined for lack of candor towards the tribunal. It was almost impossible to convince family court judges of their credibility. Don’t become that attorney.
Not every attorney can or wants to be a racehorse but we can all be a plow horse. Excellence is a worthy goal; competence is a minimum requirement. Getting one’s work done in a timely manner, with an adequate level of aptitude, and with an eye towards accuracy demonstrates to the court that one is paying attention to one’s work. As someone who cannot proofread my own writing, I would never begrudge an attorney the occasional typo,[1] but work that is extremely sloppy or often tardy demonstrates a lack of care that is sure to have a family court concerned about an attorney’s commitment to the truth.
What lawyers say and how they treat staff always gets back to the judge. Something as simple as telling a clerk the judge wants an order to be taken to the judge immediately, if not true, can mean your orders will go to the bottom of the often very large stack of orders awaiting signature. By contrast, having a good relationship with administrative assistants and clerks can mean that when you really need that order signed, it may be taken into the courtroom for immediate attention. Judges don’t like to do favors, but they do like to make sure urgent matters are promptly handled.
As noted above, candor towards the tribunal is embedded in the Rules of Profession Conduct. However, Rule 3.3(a)(1) also requires an attorney to “correct a false statement of material fact or law previously made to the tribunal by the lawyer.” In the midst of oral argument, we all will make occasional misstatements. If the misstatement is immaterial and not adverse to the other side one might forgo correction. Otherwise, one should correct the statement as soon as one recognizes the mistake. Making the occasional misstatement demonstrates one is human. Correcting one’s misstatements demonstrates to the family court a commitment to one’s reputation for credibility. Getting caught failing to correct a material misstatement damages it.
When a family court judge asks you to draft a proposed order it is because your client has (mostly) prevailed. Proposed orders need to be very accurate. A lawyer is serving as a scrivener for the court. If a judge makes obvious errors (such as confusing Plaintiff with Defendant in one line of a memo ruling) asking for clarification or simply correcting the error is fine. Otherwise, one’s order should not contradict the ruling.
Drafting proposed orders should not be viewed as an opportunity for advocacy. For temporary orders (where factual findings are not required) adding such findings absent a judge’s direction is inappropriate. For final orders, a judge might ask the attorney for the prevailing party to make detailed factual findings to support the ruling. If one is fortunate enough to be provided this opportunity, one should still make factual findings that strictly adhere to the issues and evidence presented.
Judges avoid issuing intemperate and inflammatory orders so don’t draft such orders. Your audience for proposed orders is the judge, not your client. Draft orders to impress the judge with your acumen and accuracy and not to impress the client with your zeal. Further, one should either draft orders promptly or inform the judge that there will be a delay and the reason for the delay (see point one above).
Zealous advocacy does not require resolving all doubts in favor of what a client wants to hear said in the courtroom.
In the early stages of a family court case, there’s a temptation for litigants to take positions inconsistent with their prior action or words. The pleadings and affidavits filed at or shortly prior to the first temporary hearing are not subject to “confrontation”–the ability of the opposing party to present counter evidence. The goal in pressing misleading or inaccurate claims is to convince a family court judge to grant a client relief that an accurate portrayal of the facts would not entitle the client to or deny the other party relief that party is entitled to.
An attorney’s own credibility with the court–confidence that this attorney will not heedlessly submit inaccurate or misleading evidence that will later cause the court to regret its decision–is an asset carefully developed and easily lost. Some attorneys have this credibility with the court and every one of their clients’ benefits. Other attorneys lack this credibility and all their clients suffer. Do not squander a reputation for credibility for a client who wishes to push implausible or inflammatory claims unless that client can provide independent neutral corroboration. Not only is it an affront to one’s integrity to bring specious claims to the court, it is a disservice to one’s other clients (and future clients).
For these reasons I counsel my own clients against making claims that will not withstand confrontation–even if they are willing to swear to it under oath. My clients (and, more often, prospective clients) frequently perceive this advice as a failure of empathy or a lack of loyalty to their cause. However, for the client, the reward of short-term gains rarely outweighs the risk of long-term losses. For me, any loss of credibility with the court would be a personal and career disaster.
It is better to test a client’s allegations for credibility before they are made in public, under oath, and in an attempt to sway a family court judge.
An explicit part of the obligation of candor towards the tribunal is that “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” Rule of Professional Conduct 3.3(d). Judges realize they are only seeing one side’s position when an attorney seeks ex-parte relief. They don’t want to issue an ex-parte order only to regret having done so when they realize they were not provided full information.
For most ex-parte requests, one doesn’t have the ability to determine the other side’s take on the factual dispute before submitting the request. However, if one knows things about one’s client that might give the court pause about granting the ex-parte request, one needs to include that information in one’s request. The attorney who obtains ex-parte custody because the other party is allegedly using cocaine will never be forgiven by the judge who learns at the temporary hearing that the party who was awarded ex-parte custody was using fentanyl (and the attorney either omitted that information or failed to ask the client about drug use before submitting the ex-parte request).
An attorney who develops a reputation for making many questionable ex-parte requests (either because they are factually one-sided or are sought when relief could have been pursued earlier on a less urgent basis) may find close calls do not go in his or her favor. An attorney who is judicious and accurate in his or her ex-parte requests will rarely see them denied.
There is a wide gap between claims that have minimal likelihood of success and claims that violate the requirement of Rule 11(a), SCRCP, that the pleading, motion or other paper has good ground to support it. Constantly pursuing claims on the edge of Rule 11 violations is a way to lose credibility with the family court.
One can seek custody for any parent without violating Rule 11. Whether one should seek custody for a parent who is currently incarcerated and has no reason to claim the other parent is unfit depends on how one balances one’s desire to earn fees from the incarcerated client versus how much one values one’s credibility with the family court.
Zealous advocacy often requires one to take long-shot positions with the family court and I’ve yet to see a family court judge begrudge an attorney for zealously litigating a weak position so long as there is some evidence to support the position (that said, one’s client might be required to pay the other side’s fees for litigating a weak claim). One can actually gain the respect of a family court judge by litigating a position the judge perceives to be weak and convincing the judge otherwise. And in defending parents against the state in abuse and neglect cases or in termination of parental rights cases, the family court understands a parent has a right to zealous advocacy for even the weakest position.
However, requiring a family court judge to sit through a multi-day custody trial when one’s client has no articulable claim to custody other than that he or she is the parent of the child, or pursuing an alimony claim when the evidence of a client’s adultery is overwhelming, simply communicates to the family court judge that an attorney will litigate any position so long as the client is willing to pay for his or her time. That is not a reputation one wants to develop.
An attorney’s credibility is a valuable asset. It takes years for an attorney to develop a reputation for credibility. Once squandered it can be impossible to regain. Attorneys should pay close attention to how their work product and presentation strengthens or weakens that reputation.
[1] I know of one judge with a pet peeve of attorneys who refer to the “trail court.” May her eyesight remain 20/20 forever.
[2] This paragraph is at the suggestions of the Honorable William J. Wylie, Jr., who provided input for these materials and whose input is both valued and appreciated.
[3] Again, this point is made at the suggestion of the Honorable William J. Wylie, Jr., whose insight is most appreciated.
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