Back to Basics

We’re privileged to be able to do what we do day in and day out even if it may not seem that way at the time. Our clients ask us, as conductors, to take various facts and legal principles and harmonize them in a way that best serves their interests. It’s hard. It’s stressful. In some circumstances, it may even be impossible. Yet when we’re on the stage, it’s easy to forget that we’ve got back-up – the various “Rules of” many of us thought (or hoped) we left behind in school.

These little beauties form the foundation on which we do our work. They’re part of our “physics,” the principles that underlie almost everything we do. While we grow our practice, skills, and styles, though, it’s easy to become enmeshed in the “complicated,” the “unique,” or the “novel” issues that we want to take to our appellate courts or hope will change analysis on some delicate or heretofore unknown legal issue forever. The boring stuff can take care of itself, right?

Say you’ve filed a Summons and Complaint, and it’s time to serve the folks on the other side. Many of us, for one reason or another, stuff filed copies in a letter, put a green card on it, and call it a day. But wait, where are these other folks? Are they local? If I can’t find them, did I do my legwork to serve by publication? Is there a statute that lets you do it (what?)? Is it the kind of case I can even serve someone in (what??)? That last question might not occur to many people, but neither does our statutory “super toll” in Section 15-3-30, which certainly suggests it may be a good one to ask. 

In many respects, our Rules aren’t as simple as they may seem. They work with and depend on many various sections and sub-sections of statutory law to form that structure in which we work.  It’s a structure with details. It makes sure you paid the extra money to send that green card “restricted delivery,” and I couldn’t count how many times I’ve seen Motions for Reconsideration denied because a copy wasn’t sent to the Judge. In a time when (almost) all of our Clerks of Court have transitioned to e-filing, does that still cross our minds? In many instances, these requirements and limitations can service as our “swords and shields” or independently decide our battles for us.

It may depend on the battle, though. Choosing when, how, and why to invoke the Rules can be as empowering to us as the Rules themselves can be constraining. Assume an opposing party notices a video deposition of a witness for trial.  Did they get a court order to do it? Probably not. Did the prayer for relief ask for $100,000 or more? It’s been a while since I spotted numbers in a prayer in the wild. And yet those are the only two times a videographer is getting involved under Rule 30.

Shut it down, lads.

On the other hand, maybe opposing counsel knows the witness won’t be available in the near future. Do you need her for your case? How important is she to the opposing party, and what happens to their case if she can’t testify? Do you absolutely need her in front of the jury to direct or cross-examine? How does a jury respond to a video? Instead of bringing down the dusty rulebook hammer, an otherwise “impermissible” video deposition may be to your benefit. 

If opposing counsel wants to lead all afternoon or constantly reference hearsay, do you object every time? Absolutely – but maybe not. How important are those questions? Is the jury paying attention to the witness? Would the objection bring the question and answer to their attention when you’d rather it pass harmlessly by? Would they be frustrated with constant objections, pauses, and rulings? Would the witness – particularly if it was your turn to ask the tough ones?

I greatly respect those attorneys who have a command of our “Rules of” and associated statutory and case law. They understand when and why the Rules “shall” and “may” be invoked, and they use them strategically and tactically as needed to advance their cases and detract from those of their opponents. The ability to invoke the Rules quickly and succinctly as a tool is of immense value to their clients and a firm foundation for confidence in practice. I often find myself on the other side or in the gallery captivated by small details or twists and turns in cross-references between rules and statutes regarding “simple” procedural or evidentiary questions because I didn’t know they existed – and not knowing can be incredibly demoralizing and intimidating (or case-ending).

Many of us love the law because we love those complicated, unique, and novel issues that challenge us and drive us, the ones that get their hooks in and remind us why we practice. Sometimes, though, it’s worthwhile to go back to basics and think about the dusty rulebook that keeps poking its head in our practice on a daily basis; consider what a rule means, how it works with other rules and laws, how the facts in a particular case may cause a rule’s bits and pieces to fall into place perfectly or crash headlong into each other.

Most importantly, ask how it can be used – just in case someone else is asking the same question.

Brandon Reeser is an attorney with Wilson Heyward & Horn, LLC in Charleston where his practice focuses on construction and commercial litigation.