Some Hard Lessons I Learned about Pleading

Previously pleading was critical to the practice of law. Errors in pleadings caused judges to dismiss cases with prejudice. Pleading determined the relevance of evidence and the relief the court could award. I attribute much of the fault for pretrial contentiousness, longer trials, and the unconscionable cost of legal services to the decreased emphasis on pleadings by lawyers and judges. Most lawyers today not only do not understand pleading, they do not understand what a pleading or its purpose is. Today’s lawyers refer to anything with a caption and a closing as a pleading. Pleadings are limited to complaints, answers, and replies to counterclaims. (Rule 7, SCRCP.) A summons is not a pleading. A motion is not a pleading. Discovery requests and responses are not pleadings. Rules 7-15, SCRCP, are the few remaining rules for pleadings. Mastery of pleading and the rules relating to pleadings will protect the client from an unfavorable and unjust result and may protect the lawyer from claims of malpractice and ethics violations. Pleading is easy if one understands the law relating to the claims or defenses, the facts of one’s case, and the rules of court. My favorite quote on pleadings is from Abraham Lincoln who said, “In law it is good policy never to plead what you need not, lest you oblige yourself to prove what you cannot.” I wish I had found this quote earlier in my career. My client owned a trailer. The defendants took the trailer. I sued for conversion. Back in the days when lawyers use 8.5" x 14" legal size paper, I wrote at least three pages on how my client came to have possession of the trailer, all of the dealings my client had with the defendants, and anything else that seemed remotely relevant. I probably used a lot of inflammatory adjectives, adverbs, and hyperbole. The trial judge directed a verdict for the defendants. Outraged, I appealed. The Supreme Court reversed. Brown v. Reynolds, 266 S.C. 41, 271 S.E.2d 386 (1975). On the retrial, the jury quickly found for the defendants. I could not understand it. Later, after talking with several jurors, I learned the jury never reached the question of taking, instead deciding the case on irrelevant facts I unnecessarily pled. I have had the opposite problem. I once pled, “The defendant engaged in sexual intercourse with a person other than the plaintiff after the marriage of the parties.” Jane M. Randall moved to make the allegation more definite and certain as to the date, time, place, circumstances, and paramour. I could not. The judge struck the allegation—and my opportunity to prove adultery. I once tried a case in which opposing counsel’s answer and counterclaim was so bad I did not realize custody was an issue until the morning of trial. I lost. While it was an unjust application of the law, it was just result on the facts and consistent with the best interest of the child. As is apparent, I would have benefitted greatly had someone written Separation and Divorce in South Carolina, Comments, Forms, and Checklists when I was a young lawyer. The Court intended the South Carolina Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action.” Following the rules, and insisting opposing counsel follow the rules, will help clients obtain a “just, speedy, and inexpensive determination” of their cases.

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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. Read More
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… Read More

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