South Carolina Supreme Court Enacts New Pro Hac Vice Restrictions

South Carolina lawyers – and others who find themselves litigating cases in the Palmetto State – should be aware of the brand new pro hac vice rule (issued by the South Carolina Supreme Court just last week on December 9). The new rule limits pro hac vice applications and directs that more than six such applications may be too much. Here’s the full text of the order:

Pursuant to Article V, § 4, of the South Carolina Constitution, Rule 404(b) of the South Carolina Appellate Court Rules is amended to read:

(b)     Prohibitions on Admission Pro Hac Vice. An attorney may not appear pro hac vice if the attorney is regularly employed in South Carolina, or is regularly engaged in the practice of law or in substantial business or professional activities in South Carolina, unless the attorney has filed an application for admission under Rule 402, SCACR.  Notwithstanding any other provision herein, an attorney who files more than six applications for admission pro hac vice in a calendar year, including applications for purposes of Rule 404(h), is considered regularly engaged in the practice of law in South Carolina.

This amendment is effective immediately.

The full order itself can be found here.

Today – December 15 – Is The Deadline To Comply With The South Carolina Supreme Court’s AIS Registration Order

As we reported on November 5, the South Carolina Supreme Court has ordered that all bar members update their registration information with the court’s Attorney Information System (“AIS”).

The deadline to do so, as per the terms of the court’s order, is today: December 15, 2013.

If you are a South Carolina bar member, and you have not yet updated your AIS information, you’d best do so today.

For easy reference, here’s the the text of the full order:

The South Carolina Judicial Department is currently developing an e-filing system to allow the electronic filing of documents in the courts of this State.  This system will rely, in part, on the information already maintained by the Attorney Information System (AIS), and lawyers will ultimately use their AIS user name and password to access the web-based portal for e-filing.  In preparation for e-filing, it is necessary to make various security enhancements to AIS.  This includes requiring stronger passwords.

Accordingly, between the date of this order and December 15, 2013, every member of the South Carolina Bar (including those holding limited certificates to practice law), and every foreign legal consultant licensed under Rule 424 of the South Carolina Appellate Court Rules (SCACR), must log-on to AIS and:

(1)  Change their password to a stronger password meeting the requirements specified in AIS.  Once logged-on, the lawyer or consultant will immediately be prompted to update their password and will be provided with detailed information on the complexity required for that password.

(2)  Choose and answer updated security questions.  The lawyer or consultant will be automatically prompted to provide this information once a new password is entered.

(3)  Update and verify their information in AIS, including their contact information.  Lawyers and consultants are reminded that the contact information in AIS, including the required e-mail address, is the official contact information for them.  Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).

Lawyers and foreign legal consultants who have not changed their password and security questions, and verified their AIS information, will not be allowed to pay their license fees for 2014 until they have done so.  This may result in the lawyer or consultant being suspended under Rule 419, SCACR.

To see the Supreme Court’s order itself, please see here.

Titles of Nobility Act: A New Challenge To The Legal Profession?

It is not uncommon for inmates, particularly those facing lengthy sentences, to file lawsuits and other grievances challenging their convictions. Even though many of these prisoners proceed pro se, they are often surprisingly creative in articulating their theories for relief. Some of the causes of action are very well-crafted. Others are quite humorous. And, then, there is the new complaint filed by South Carolina’s very own, Shaheen Cabbagestalk (yes, it really is his name), challenging the authority of lawyers and judges to perform their jobs, which takes the cake. The suit, filed in the United States District Court for the District of South Carolina, is captioned Cabbagestalk v. S.C. BAR Head Person of Establishment, No. 5:13-cv-03037 (D.S.C. 2013). Before delving into the allegations of the complaint, we note that this is not Cabbagestalk’s first rodeo. Cabbagestalk is in the midst of an 18-year prison sentence after being convicted of armed robbery in 2009. Since his conviction, he has filed no less than 16 suits against various persons and entities. In our book, 16 complaints in four years elevates him to the rank of professional – and likely vexatious – litigant.

Cabbagestalk’s newest creation arises out of the Titles of Nobility Act of 1810 (“TONA”). The Act reads as follows:

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.

So what does TONA have to do with lawyers and judges? Well, according to Cabbagestalk:

Most judges, senators, Congressmen, even all federal judges and most presidents are attorneys whom carry these titles. B.A.R. = (British Accreditation Registry) headquartered in London recognized everywhere as the BAR. These dealings are of British nobility. Esquire was the principal title of nobility which the 13th Amendment sought to prohibit from exercising any office within United States. . . . (All Acts) of their government (since 1819) are technically (Null and VOID) under T.O.N.A. Both “Esquire” are targets of the 13th Amendment so the entire Bar of South Carolina is prohibited and all its dealings are (Null and VOID).

In other words, lawyers, judges, and most of the government itself lacks any authority pursuant to TONA and, thus, Cabbagestalk should be set free. Interesting theory, that is. We imagine most were not even aware of TONA prior to Cabbagestalk’s proposal. And for good reason. TONA is not exactly the law of the land.

TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810. However, the amendment was never ratified by three-fourths of the states and, thus, never became a part of the Constitution. Some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819 (hence Cabbagestalk’s 1819 reference). However, even with Virginia’s ratification, the amendment did not reach the necessary magical number for passage. (For a detailed explanation, read here).

In other words, Cabbagestalk’s claims fail on their face.

Even if TONA was, or is, the law, lawyers should still rest easily. As much as many of us wish we did, lawyers do not hold titles of nobility. Lawyers are licensed, and thereby receive their titles, by state bar associations – not the British aristocracy. Article I, Sections 9 and 10 of the Constitution actually prohibit state and federal governments from granting any titles of nobility. Until the Queen starts anointing us all with special titles by the sword upon swearing in, we should refrain from staking our claim to the prevailing social class.

Cabbagestalk deserves some credit for his effort. Discovering the “lost amendment” and deriving a roadmap to relief is not easily done from a prison cell. If nothing else, it led us here at Abnormal Use to do some research on TONA. Otherwise, we may have been concerned about our ability to continue on in our profession.

South Carolina Supreme Court Orders Bar Members To Update AIS Information By December 15

If you’re a South Carolina lawyer, you definitely need to know about an order that the South Carolina Supreme Court issued yesterday.  In said order, the Court ordered all South Carolina lawyers to login to the Attorney Information System and change passwords, update security questions, and update and verify biographical and contact information.  Failure to to so could result in a suspension.

For easy reference, here’s the the text of the full order:

The South Carolina Judicial Department is currently developing an e-filing system to allow the electronic filing of documents in the courts of this State.  This system will rely, in part, on the information already maintained by the Attorney Information System (AIS), and lawyers will ultimately use their AIS user name and password to access the web-based portal for e-filing.  In preparation for e-filing, it is necessary to make various security enhancements to AIS.  This includes requiring stronger passwords.

Accordingly, between the date of this order and December 15, 2013, every member of the South Carolina Bar (including those holding limited certificates to practice law), and every foreign legal consultant licensed under Rule 424 of the South Carolina Appellate Court Rules (SCACR), must log-on to AIS and:

(1)  Change their password to a stronger password meeting the requirements specified in AIS.  Once logged-on, the lawyer or consultant will immediately be prompted to update their password and will be provided with detailed information on the complexity required for that password.

(2)  Choose and answer updated security questions.  The lawyer or consultant will be automatically prompted to provide this information once a new password is entered.

(3)  Update and verify their information in AIS, including their contact information.  Lawyers and consultants are reminded that the contact information in AIS, including the required e-mail address, is the official contact information for them.  Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).

Lawyers and foreign legal consultants who have not changed their password and security questions, and verified their AIS information, will not be allowed to pay their license fees for 2014 until they have done so.  This may result in the lawyer or consultant being suspended under Rule 419, SCACR.

(Emphasis in original).

The process only takes a few moments to complete.  To access the Attorney Information System in order to comply with the order, you can click here.

To see the Supreme Court’s order itself, please see here.

New South Carolina Court of Appeals Opinion on Sophisticated User Doctrine

Not too long ago, on August 21, 2013, the South Carolina Court of Appeals released its opinion in Lawing v. Trinity Manufacturing, Inc., No. 5166 (S.C. Ct. App. Aug. 21, 2013).  Implicating the “sophisticated user” doctrine, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Facebook At Issue in South Carolina Family Law Case

Here we go again with the social media discovery, in our own territory no less. In McKinney v. Pedery, — S.E.2d —-, No. 5165   (S.C. Ct. App. Aug. 14 2013), a family law matter, a husband appealed the trial court’s ruling which had terminated his former wife’s requirement to pay permanent periodic alimony “when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code.” Apparently, that statute requires the termination of alimony “on the remarriage or continued cohabitation of the supported spouse.” Of course, Facebook is at issue in this opinion. Our favorite paragraph of the opinion:

Wife submitted evidence to family law attorneys from Davis Law Firm [Husband’s Purported Cohabitant] kept all of her personal belongings at Husband’s residence, including her clothing, undergarments, shoes, and toiletries. Husband’s testimony that [Husband’s Purported Cohabitant] only packed an “overnight” bag when she traveled to Duncan to care for her grandchildren lends support for the conclusion that [Husband’s Purported Cohabitant] “lived under the same roof” as Husband. Further, Husband admitted that he gave [Husband’s Purported Cohabitant] an engagement ring and that [Husband’s Purported Cohabitant’s] relationship status was listed as “engaged” on Facebook prior to Wife filing for termination of alimony. We are not persuaded by Husband subsequently referring to [her] engagement ring as a “friendship ring” or by [Husband’s Purported Cohabitant] changing her relationship status from “engaged” to “in a relationship” immediately following Wife’s initiation of this action. Rather, this is evidence of Husband’s attempt to downplay their relationship and living arrangements, which we find unconvincing.

(Emphasis added).

So, there’s that.

South Carolina’s New Fast Track Jury Trial

Last week, we here at Abnormal Use attended a CLE course offered by the South Carolina Bar on the state’s new Fast Track jury trial system. The system, authorized by an Order of South Carolina Supreme Court Chief Justice Jean Toal back in March, is a voluntary, binding jury trial before a smaller jury panel and a Special Hearing Officer selected by the parties. The Fast Track trial usually takes place within 180 days of commencement of the action.

The following points are highlights from the Chief Justice’s Order and the subsequent CLE:

First, for the Fast Track jury trial, there must be some cooperation between the parties. In fact, parties must consent to initiate the process in the first place. Once the parties consent to the Fast Track jury trial, they can stipulate to almost anything, including the admissibility of evidence, how testimony is presented, and what pre/post-trial motions are necessary. Without all these agreements, we seem to think parties would be best to keep the case on the circuit court docket.

Second, the results are binding and not appealable, so prepping the client beforehand is imperative. We imagine the smaller, Fast Track juries are just as unpredictable as their larger counterparts. Couple that with a non-judge presiding over the proceedings, and you have a potential for unexpected results – with no opportunity for appeal. As a result, Fast Track jury trials are great candidates for high-low agreements to help manage some of that risk.

Finally, Special Hearing Officers still get to wear judges’ robes. While not technically “judges,” Special Hearing Officers are at least granted the appearance in the eyes of the jury. The Fast Track system is set up to mimic the circuit court system as much as possible without expending as many of the court’s resources.

If you are practicing in the state, we encourage you to explore the Fast Track jury trial. However, we recommend leaving it to the minor car accidents and slip and falls. We doubt product manufacturers or seriously injured plaintiffs are going to want their fates tied to a system of relaxed evidence and unappealable results.

Courtney v. Nissan Motor Co., Ltd: Case Update

In 2010, we blogged about the then-recent decision in Courtney v. Nissan Motor Co., Ltd., in which a Florence County, South Carolina jury awarded $2.375 million to a young girl burned when the Nissan SUV in which she was riding wrecked; the minor’s seat happened to be situated on top of the gas tank.  Our commentary included the following analysis:

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

Not surprisingly perhaps, Nissan appealed.  Recently, the South Carolina Court of Appeals took up the case and issued this opinion affirming the jury’s award.  One of the issues on appeal included whether the circuit court erred in denying Nissan’s post-trial motion for JNOV based on the plaintiff’s failure to provide a feasible alternative design as required by Branham v. Ford Motor Company, 390 S.C. 203, 701 S.E.2d 5 (2010).  (See Abnormal Use’s coverage of that case here).

Importantly, the Court of Appeals was tasked in Courtney to determine if Branham applied retroactively, or prospectively only, since Branham came out after the jury’s award in Courtney.  The Court held that Branham did, in fact, apply retroactively, based on principles long-held in South Carolina jurisprudence:

Turning to the instant case, we recognize that in South Carolina, “[t]he general rule regarding retroactive application of judicial decisions is that decisions creating new substantive rights have prospective effect only, whereas decisions creating new remedies to vindicate existing rights are applied retrospectively.”

The Court of Appeals decided that the Courtney case fell into the latter category, since the risk-utility test had been employed in the products liability context for a long time, if not exclusively.  Thus, having decided that Branham applied in this case, the Court then took up the question whether the plaintiff’s alleged failure to provide an alternative design entitled Nissan to JNOV.  The jury determined that the plaintiff failed to prove a feasible alternative design in a post-verdict interrogatory that, according to the Court of Appeals, should never have been put before the jury in the first place, since “[o]ur supreme court has previously held that ‘[i]t is improper in a law case to submit factual issues to a jury in the form of non-binding ‘advisory interrogatories.'” (internal citations and quotations omitted).  Since the interrogatory was not dispositive of liability, it didn’t really matter what the jury found, one way or the other, in the Court’s estimation.  We see this as the Court saying, in essence, “no harm, no foul.” Finding that the jury’s answer to the interrogatory was dispositive of, well, nothing, the Court affirmed the denial of Nissan’s motion for JNOV.

SC Man Burns Down House Due to Witch Infestation, Found Not Guilty of Arson

According to a report out of The State (SC), a South Carolina man charged with third-degree arson after burning his own home has been found not guilty by reason of insanity.  The state Department of Mental Health recommended the verdict after finding that the man burned his house because he believed witches were in the home.  Judge Ferrell Cothran complied with the Department’s recommendation, sentencing the man to no more than 120 days in a state mental health facility.

Before we chalk this story up as another case of offbeat South Carolina news, let’s pause.  If one believes witches are inhabiting his home, who are we to say he wasn’t justified in burning it down?  After all, fire is the best method of ridding oneself of a witch. If the man’s home was inhabited by vampires, he could have avoided any criminal conduct by installing an extra skylight or lacing the rooms with garlic.  Given the man’s predicament, fire was perfectly acceptable.  Why punish him for it?

We imagine this case would have been bigger legal news had there actually been witches inhabiting the man’s home.  In addition to arson, the man would likely be facing multiple counts of homicide.  Assuming the witches are of the supernatural, broom-flying variety and not practicing Wiccans, the Court would be faced with determining the rights of creatures formerly believed to be mythical. Should witches really be treated as humans in a court of law?  Answering the question in the negative would certainly breed a witch-led civil rights movement worthy of an episode of “True Blood.” This would be the South Carolina news the nation has grown accustomed to seeing.

Unfortunately, this story is limited to questions of capacity and its role in the courtroom.  We trust the Department of Mental Health and its determination that the man was suffering from some psychological illness at the time of the act.  With the commonplace depiction of vampires and zombies on television, we find it unlikely the man would chose witches as the culprit if he was simply making it up.  We understand the mens rea ramifications of an insanity finding and agree with the end result in the criminal context.

Court Finds Some Evidence of Toyota Defective Restraint System

Recently, in Quinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.

On Toyota’s motion for summary judgment, the Plaintiff did not contest the lack of evidence regarding the seat belt restraint system and roof structure and, thus, the motion was granted. The Court held, however, that there was at least some issue of fact concerning the defective design of the supplemental restraint system. The vehicle’s supplemental restraint system consisted of frontal airbags, side torso airbags and curtain shield airbags mounted along the roof. However, the 2009 Camry lacked rollover-activated curtain shield airbags (“RCSA”). Toyota argued that it was entitled to summary judgment because the Plaintiff’s expert did not opine that the failure to include the RCSA made the system defective or unreasonably dangerous. Nonetheless, the Court held that the Plaintiff had met her burden to demonstrate that the lack of a RCSA was a design flaw and that the RCSA was a feasible alternative design. Toyota’ Accident Data Analysis Report revealed that RCSA’s could lead to a 50 percent reduction in fatalities. Toyota’s expert also indicated the installation of RCSAs was possible from a technological and economic standpoint. Given this evidence, the Court found there to be a genuine issue of material fact and denied Toyota’s motion.