Tag Archives: appeal

Discovery Sanctions are Not Appealable

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The South Carolina Court of Appeals reaffirmed that discovery orders are not appealable. Johnson v. Chaudry, M.D., Op.No. 2013-UP-176 (S.C. Ct.App. filed May 1, 2013).

In Johnson, the plaintiff apparently missed a deadline in a scheduling order for naming experts. The circuit court denied her motion for an extension and sanctioned her by allowing her to present only one liability expert at trial. She then appealed those orders.

The Court of Appeals dismissed the appeal. It reasoned that discovery orders are not appealable because they neither involve the merits nor affect a substantial right within the meaning of the statute governing appeals. This is in line with unbroken holdings that discovery orders are not immediately appealable. See, e.g., Wiethers, M.D. v. Bon-Secours-St. Francis Xavier, 381, 673 S.E.2d 417 (2009)(vacating Court of Appeals decision that reviewed an order compelling discovery).

Then how do you get a bad discovery order reviewed?

To appeal, you must wait until a final order on the merits. Once the trial court issues a final order, prior discovery orders may be raised in an appeal from the final order. Hamm v. South Carolina Pub. Serv. Comm’n, 312 S.C. 238, 439 S.E.2d 852 (1994).

For quicker review, you may petition the Supreme Court to issue a common law writ of certiorari. Laffittee v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009)(reviewing on certiorari an order compelling discovery); Wiethers (distinguishing review of discovery orders on appeal and on certiorari).

This writ will be covered in more detail in next Monday’s post.

Any thoughts? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

Order Referring Foreclosure Case is Not Appealable

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The South Carolina Court of Appeals held last week that a circuit-court order referring a mortgage foreclosure action to a master-in-equity is not appealable until the master rules on the demand for a jury trial.

In TD Bank v. Farm Hill Associates, No. 2013-UP-118 (S.C. Ct.App. refiled May 29, 2013), the defendants in a mortgage foreclosure action appealed an order that referred the case to a master-in-equity. They argued that the reference denied them their right to a jury trial. The Court disagreed and dismissed the appeal.

The Court acknowledged that an order of reference that denies a party the right to a jury trial is directly appealable. But it held that the rule did not apply because the order of reference allowed the master to rule on the demand for a jury. If the master decided that the parties had a right to a jury, the issues triable to a jury would be returned to the circuit court. Because the master had not yet ruled, the Court held that the order of reference, by itself, did not deny anyone their rights.

TD Bank closely follows Supreme Court precedent. In Williford v. Downs, 265 S.C. 319, 218 S.E.2d 242 (1975), the court held that an order of reference in a mortgage foreclosure action is not directly appealable because the action lies in equity and there is no right to a jury trial in equity actions. See also North Carolina Fed. Savings & Loan Ass’n v. Twin States Dev. Corp., 289 S.C. 480, 347 S.E.2d 97 (1986)(applying Williford).

In applying this law, the Court in TD Bank pointedly noted that the parties may be able to directly appeal a later order f the master denied their demand for a jury trial. Such an appeal would be directly from the master to the Court of Appeals. Rule 203(b)(4), SCACR.

Any thoughts? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

Judge Diane Wood’s Brief-Writing Tips

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Judge Diane P. Wood of the Seventh Circuit offers 6 tips on brief writing:

  • get a command of good writing
  • keep the brief as concise as possible
  • tell a story in the statement of facts – what happened and why the reader should care
  • identify the standard of review
  • explain how the rule advocated will operate
  • engage the other side’s argument so that you are not ships passing in the night

Do you have other tips to add? Please leave a reply of reach me at www.attorneyroberthill.com.

 

Don’t Create Zombie Nouns in an Appeal

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zombieLawyers are bad about creating zombie nouns by burying verbs. In drafting a brief for an appeal, we never mediate or litigate; we always engage in mediation or litigation. We never examine a witness or object to her testimony; we conduct an examination and make an objection. And we rarely settle a case but rather effectuate a settlement.

We will throw a suffix on most anything, transforming a perfectly fine verb into a weak noun.

Creating nouns from verbs and other parts of speech is called “nominalization.” It is one of the things that grade-school teachers warn about. Legal writing gurus do too.

In his book, The Winning Brief, Bryan A. Garner traces the legal profession’s penchant for turning verbs into nouns back to Jeremy Bentham’s “noun-preferring” principle. Garner advocates that we flip this thinking to choose verbs over nouns when we can. Almost every time we do, Garner explains, we:

  • replace a longer noun with a shorter verb
  • eliminate unnecessary prepositional phrases
  • avoid tepid be-verbs and the passive voice
  • humanize the writing by focusing on who is doing what

Steven Stark, author of Writing to Win: The Legal Writer, agrees that lawyers should use strong verbs. If your verbs are weak, he concludes, so is your prose.

And lastly, Ross Guberman, author Point Made: How to Write Like the Nation’s Top Advocates, observed that top lawyers use colorful verbs. It is hard to use colorful verbs when you bury them with suffixes, leaving the work to more tepid verbs.

Does this mean never nominalize? No. Author Henry Hitchings recently makes the case here and here that some nominalizations are fine. It is their overuse that strips the humanity out of what we write and say.

The key is recognizing what we are doing when we do it. In editing a brief, I almost always spell check for -tion, -sion, -ment, -ence, -ance, and -ity. These suffixes may uncover buried verbs that are capable of resurrection. Or should I say buried verbs that I may resurrect?

Any thoughts on turning verbs into nouns? Please leave a reply or reach me at www.attorneyroberthill.com. In the meantime, please enjoy this video on zombie nouns -

 

Killing Adverbs in Appeal Briefs

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What do Supreme Court Justice Anthony Kennedy and horror-novelist Stephen King have in common? Both disdain adverbs. Lawyers who write appeal briefs may consider joining them.

Justice Anthony Kennedy

Justice Anthony Kennedy

“Adverbs are a cop-out[,]” Justice Kennedy told an interviewer. “They’re a way for you to qualify, and if you don’t use them, it forces you to think through the conclusion of your sentence. And it forces you to confront the significance of your word choice, the importance of your diction.” 13 Scribes Journal of Legal Writing 92-93 (2010).

Stephen King goes further. In On Writing: A Memoir on the Craft, King exclaimed that he would “shout from the rooftops” that “the road to hell is paved with adverbs.” He likens them to dandelions in that one is pretty but the lawn is soon filled with them. And then you see them for the weeds they are.

Why the hard feelings? Let me suggest three reasons. Adverbs may:

  • be superfluous
  • substitute for stronger verbs
  • editorialize

I have read, and have unfortunately authored, briefs on appeal that use adverbs as intensifiers when they really do not intensify. Oops – I just did it again. The adverb “really” adds nothing to the statement. An intensifier that does not intensify is as bad as one that really does not. It is the armed gunman.

A stronger objection is Justice Kennedy’s concern about word choice. A more precise verb is better than an adverb. Why tell a Supreme Court that the defendant drove his vehicle into your client forcefully when you can say he crashed into her? Why say a witness testified “tearfully” when you can say he sobbed or wailed?

A last objection, and the strongest one for me, is that adverbs editorialize and may exaggerate.  Adverbs describe. And descriptions are subjective. I, for example, often see in appeal briefs the infamous adverbs “clearly,” “obviously,” and the like. When my opposing counsel begins a sentence “Clearly x, y, and x, I search the record or law for something showing the opposite. And I normally find it. And point it out to the Court.

If something is obvious or clear, prove it without saying that it is obvious or clear. Show, don’t tell.

Are you an adverb lover, hater, or agnostic? Please leave me a reply or reach me at www.attorneyroberthill,.com. In the meantime, please enjoy this video -

 

 

 

 

 

 

 

 

Briefs on Appeal: Where’s the Theme?

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I recently read almost 10 pages of an appellate brief before learning what the appeal was about. Even then, I did not know why the author thought his client should win.

It took me a little longer to realize that the problem was the brief’s lack of a theme. There was no underlying focus or theory of the case that came through, at least not clearly.

Senior Circuit Judge Ruggero J. Aldisert’s treatise, Winning on Appeal: Better Briefs and Oral Argument, describes the brief’s theme as its unifying focus and heart. It answers the question, “What in the heck is the message?!.”

Judge Aldisert explains that this unifying focus sets the flavor and mood of the argument. “It directs the judge’s attention immediately to where the trial court’s error took place and explains straightaway why the trial court was wrong or, when used by the appellee, why it was right. It tells the appellate court what relief you want.”

You are shooting for an elevator pitch. Could you tell a lay person in a few sentences what the case is about, what relief you want, and why you should get it?  That is your theme.

You sometimes have choices. In a recent appeal, I was blessed with a sympathetic plaintiff, favorable statutory language, and abundant case law construing the statute my way. What is the theme? Should the focus be on the parties, thus pitting a greedy defendant against the sympathetic plaintiff? Or is the focus on the rules, pitting the defendant against the statutory text and stare decisis?

It was a tough call. In the end, I chose to focus on the statute’s text and the decisions construing it favorably. This was a judgment call based on my knowledge of my audience. The South Carolina Supreme Court has held, “Legislative intent, once determined, is ‘permanently settled’ absent subsequent action by the General Assembly to effect a change in the statutory law.” Wehle v. The South Carolina Retirement System, 363 S.C. 394, 403, 611 S.E.2d 240, 244 (2005).

I have my fingers crossed that stare decisis will win the day

How do you all decide on a theme for your appeal? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

 

SC Appeals Begin Before the Beginning

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Justice Kittredge of the SC Supreme Court

Justice Kittredge of the SC Supreme Court

The South Carolina Supreme Court recently reaffirmed that an appeal begins long before a party files the notice of appeal.

Berry v. South Carolina Dep’t of Health and Environmental Control, Op. No. 27237 (S.C. Sup.Ct. filed March 27, 2013)(Shearouse Ad.Sh. No. 14), involves a dispute over a bulkhead. DHEC granted a permit for some property owners to build a replacement bulkhead but required that it be built where the existing one was located. DHEC later ruled that the property owners built the bulkhead in a different place, and issued two administrative orders: (1) a revocation order undoing the permit; and (2) an enforcement order imposing civil penalties for violating the permit.

The property owners appealed the enforcement order to the circuit court rather than the Administrative Law Court. They argued that S.C. Code Ann. § 48-39-180 authorized the circuit court to review the DHEC order. Yet the circuit court, and ultimately the Supreme Court, disagreed.

The problem is that S.C. Code Ann. § 48-39-180 provides for circuit court review when DHEC revokes permits but not when it enforces a permit violation. Speaking for the Court, Justice Kittredge distinguished between the two and noted that the property owners never sought review of DHEC’s revocation order. They appealed only the enforcement order.The Administrative Law Court reviews enforcement orders.

The Supreme Court bound the property owners to their limited appeal, and held that the circuit court lacked jurisdiction to hear it.

It is anyone guess what would have happened had the property owners appealed the revocation order to the circuit court. The circuit court could have heard that appeal, and may have effectively erased the penalties by reversing the revocation. The theory is that no basis for revocation = no violation = no penalties. But the property owners appealed the wrong order.

Back in August 2011, one of this blog’s first posts discussed why an appeal begins before a party files the notice of appeal. Berry reaffirms the point.

Has anyone else caught opposing counsel in a similar misstep? Please leave a reply or reach me at www.attorneyroberthill.com.