Trial Strategy in Family Court

Conventional wisdom in Family Court cases, particularly custody cases, teaches dredging up all of the mud on the other party and then spending the entire trial plastering the other party with that mud. Erin Urquhart and I believe that the conventional wisdom is not necessarily wise. We think maybe George Bernard Shaw got it right when he said “I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.”

Lawyers and litigants make a severe tactical error placing more emphasis on fault than judges consider. Our courtroom experience supports this. South Carolina case law supports this.

We learned a great lesson years ago when we tried our first seriously contested case together, a five-day-trial. Our client, the mother, had two lawyers before us. The father was on at least his second lawyer. The guardian ad litem was the third. At one temporary hearing, the trial judge declined both parents’ claim for custody, calling the Department of Social Services instead. Everyone who knew the background of the case believed Erin and I were the underdog and that the late Judge Berry L. Mobley would most probably award custody to the father. The advantage of being the underdog is that expectations are manageable.

During trial preparation with our client, we decided our strategy. I would cross-examine the father but I would avoid any appearance of hostility, disbelief, sarcasm, incredulity, raising my voice, or any of the other things I so enjoyed on cross-examination. Instead, I patiently and respectfully asked the father about the problems with the marriage and his contributions to those problems. I treated his witnesses with similar respect.

Erin handled the direct examination of the mother, which did not occur until the fifth day of trial. Erin’s direct examination lasted twenty-seven minutes. The mother testified how she met the father and fell in love. He was handsome, smart, educated, witty, and attentive. During the marriage, he was good in bed, a good father, and a great breadwinner. She testified that he moved from the marital home without attributing any reason for his move. At that point her direct testimony ended without having said one negative word about the father of her children.

Judge Mobley found in favor of the mother on almost every point and refused any modification on the motion to reconsider. Later, the father brought another case asserting a change in circumstances, but again the mother prevailed.

My mentor, the late Robert R. “Bob” Carpenter told me “I never learned anything from a case I won.” Not so with Erin and me. We learned that judges do not like to listen to people make negative, disparaging, hostile, and angry comments about persons with whom they have slept and had children. We learned that judges appreciate civility. We learned that we can encourage and help the other party make negative admissions about his or her conduct without our client “piling on.”

We now have a standard operating procedure or modus operandi for trials. Erin handles the direct examination of our client and our witnesses for two reasons: First, she is more patient and thorough, which is necessary because good direct examination is much more difficult than good cross examination. Second, we want to emphasize our client’s decency and loss and Erin’s personality and appearance are better for this than mine.

For years I preached to clients that “The Golden Rule is good law” and “civility is good trial strategy.” This case was the first time I appreciated that these principles apply to the lawyers as well as the clients.

I find it ironic that during my years of practice, the South Carolina courts consistently diminish fault as a basis for relief, yet lawyers and litigants have increased their emphasis on fault with a corresponding increase in anger, animosity, and alienation. For example, the mother in Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973), lost custody solely because of her adultery. Less than three years later the Supreme Court affirmed custody to an adulterous mother in Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975). Both the trial court and the court of appeals refused to increase a wife’s alimony based on the husband’s fault in Woodside v. Woodside, 290 S.C. 366, 350 S.E.2d 407 (Ct.App. 1986). In Fort v. Fort, 270 S.C. 255, 261, 241 S.E.2d 891, 894 (1978), the Supreme Court said “A wife at fault is not always denied alimony.” Fault is one of fifteen factions in the equitable apportionment of property and S. C. Code Ann. Section 20-3-620(b) does suggest that it is a lesser factor; however, In Rampey v. Rampey, 286 S.C. 153, 332 S.E.2d 213 (1985), the court found that Ms. Rampey was responsible for the breakup of the marriage but granted the parties an equal apportionment stating that “Although fault does not justify a severe penalty in making a division of marital property, it is a factor the court may consider in determining the equities between spouses.” In Curry v. Curry, 402 S.C. 438, 741 S.E.2d 558 (Ct. App. 2013), the finding that the “husband’s abuse of alcohol caused the breakdown of the marriage” did not stop the court from awarding the husband 55% of the marital estate. Most South Carolina lawyers seem unaware of Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (Ct. App. 2006), in which the court of appeals held “A party’s fault in causing a divorce, however, is not a factor to be considered when awarding attorney’s fees.”

The lesson? Play nice to win.

While I believe it to be correct, this opinion and this experience are debatable. I ask other South Carolina lawyers to respond with comments on their similar or different experiences in the below comments section.


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About The Authors

Thomas F. McDow's Profile Image
Thomas F. McDow is the author of Debating SC Family Law, a blog devoted to discussing family law and appellate court issues in South Carolina.
Erin K. Urquhart's Profile Image
Education: Spartanburg Public SchoolsWinthrop University, B.A. 2003University of South Carolina, J.D. 2006 Admitted: All South Carolina courts and the United States District Court for South Carolina, November 13, 2006 Professional Activities: South C…

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