May 2007 Minutes
The Practice and Procedure Committee met on Tuesday, May 8, 2007, at 12:00 noon.
Members Present (15)
William S. Brown, Chair
Linda Jean Amason
David D. Cantrell, Jr.
Matthew W. Christian
Meredith Long Coker (telephone)
Ronald Brian Cox
R. Daniel Day, Jr.
John J. Fantry, Jr.
Rosalyn Woodson Frierson
Karen Lee Huelson
George W. Jefferson
John Derrick Martin
James J. Raman
Mary Spencer Schroeder
Troy A. Tessier
Members Absent (14)
Stephanie G. Borsanyi
John P. Britton
Michael Stephen Church
Leslie A. Cotter, Jr.
Roger B. Jellenik
Eli Alan Poliakoff
Howard S. Sheftman
Lisa Lee Smith
Sarah Patrick Spruill
Paul F. Tecklenburg
William Mark White
Edgar Lloyd Willcox, II
John B. Williams
William C. Wood, Jr.
Others Present (1)
Mrs. James J. Raman
Bar Staff Present (1)
Carey W. Way
Call to Order: Mr. Brown called the meeting to order and welcomed everyone.
Minutes: By motion, second and unanimous vote, the Committee adopted the minutes from the March 20, 2007, meeting.
Old Business:
A. Mr. Brown stated Ms. Way had inquired if the Committee had anything ready to go before the House of Delegates at its upcoming meeting. It was determined there was nothing ready at this time.
B. Rule 43(k), SCRCP: Mr. Brown stated the Committee had expressed concern that it
was the everyday practice to enter into settlement agreements pursuant to the terms of the agreement rather than file them with the Court. The ADR Commission’s request for input from the Practice & Procedure Committee as to its suggestion for revisions was discussed. These revisions were outlined under email to Mr. Cox and Sheftman from Ms. Joan Brown as follows:
No agreement between counsel affecting proceedings in an action shall be binding unless 1) reduced to the form of a consent order or written stipulation signed by counsel and entered in the record; or 2) made in open court and noted upon the record; or 3) signed by all parties to the agreement or their authorized representatives, their attorneys and by any representatives of any insurance carriers participating in the agreement following a mediation or other alternative dispute resolution conference. Settlement agreements filed with the court shall be handled in accordance with Rule 41.1, SCRCP.
Mr. Cox stated he does not think these revisions address the Practice & Procedure Committee’s concerns regarding enforceability. The issues of binding insurers and discovery objectives was also discussed Mr. Brown stated the Practice & Procedure Committee’s proposal made at its last meeting to strike the words “and entered into record†takes care of the enforceability issue, was simpler, and would achieve everyone’s goal. The Practice & Procedure Committee’s suggested revision had been circulated to the ADR Commission and SC Trial Lawyers Association. Ms. Way mentioned that the ADR Commission had invited a Practice and Procedure Committee representative to attend its meeting upcoming meeting to discuss proposed changes. It was determined that Mr. Cox or Mr. Sheftman would attend the meeting to be held on July 20, 2007, at 10:00 a.m. in the South Carolina Bar classroom.
Motion was made, seconded, and unanimously approved to adopt the language from the last meeting to strike “and entered into recordâ€; and further, to send a representative to the upcoming ADR meeting with authority to incorporate changes not to impede this Committee’s objectives.
C. Rule 32(a)(3)(B) and Rule 45, SCRCP: Proposed amendments submitted by Ms. Coker as to SCRCP Rules 32(a) (3)(B) and Rule 45 had previously been distributed to the Committee for review prior to the meeting. Ms. Coker stated following a question previously raised pertaining to judges’ statute of limitations on ability to subpoena, that she had looked at the Constitution and powers of courts and found nothing specifically limiting what this Committee was trying to do. Mr. Brown stated “from the statute standpoint, there is no prohibition to extend powers beyond Countyâ€. Mr. Brown asked for discussion as to proposed amendment to Rules as red-lined in the distributed materials. Mr. Day requested a brief refresher as to context of changes. Ms. Huelson brought up the proposed changes as to Rule 32(a)(3)(B) and stated she thought “witness†should be inserted to read “that the county wherein the witness resides or is employed…â€. Mr. Coker stated “when an expert had come to trial†should be added to (e). Mr. Brown stated that the proposed change to Rule 32 was already approved by the House of Delegates but had not been ruled up by Supreme Court. There was no objection to the motion that this matter be deferred to the next meeting.
D. Electronic Discovery Rules Changes: Mr. Martin stated that it was the intention to mirror South Carolina Rules closely to Federal Rules with the exception of not necessarily requiring a F.R.C.P 26(f) style conference. Mr. Martin stated the Subcommittee would likely want to put together some language amending proposal to address this issue and that he would get materials out to Mr. Raman and Mr. Christian for that purpose.
E. Children’s Justice Task Force and Change to Rule 404, SCREvid.: Mr. Tessier agreed to contact Mr. Schwacke, hear what Solicitors have to say, and work on analysis. Mr. Tessier also agreed to send an email to Mr. Day, who would place the matter on list serve with instructions regarding response.
F. Selection of Municipal Judges: A copy of the Resolution presented to the House of Delegates at the 2007 Bar Convention had been previously disseminated to Mr. Brown, Mr. Fantry, and Mr. Day. Mr. Day reported this matter had been referred to the Magistrate Subcommittee and that he had spoken with a judge in Seneca who will meet with the Committee. He believes they will supply training with more qualification requirements. Mr. Day had disseminated information to Mr. Barroll.
New Business:
A. Study of Potential Jury Improvements
A copy of the article “Can Jury Innovations Improve Juror Understanding of DNA Evidence†from Judicature magazine was included in the meeting packet. Ms. Way made a presentation stating that in light of the fact that jurors come from varied demographic and educational backgrounds, a simple approach of presenting evidence, including complex DNA evidence, using jury innovations to improve juror comprehension might be worth studying. The Committee was receptive to this.
B. 2007-2008 Goals: The following goals were adopted following motion, second and unanimous vote:
Identify and consider revisions to rules not uniformly applied or where there is ambiguity in interpretation.
Consider proposing rules for electronic filing and service of documents.
Consider supplementing rules, including Rule 26(a) and (f), to address issues relating to electronic discovery and information.
Review and draft changes to Rule 43(k), SCRCP.
Analyze proposal to change SC Rule of Evidence 404.
Review issues regarding appointment of municipal judges and magistrates.
Return to previous battles waged and lost (e.g. Rule 6(d)) and voir dire juror questionnaire.
Study analysis of potential jury improvements to assist jurors in understanding (DNA evidence-non exclusive).
C. Mr. Fantry reported that Richland County had a new pilot program for ADR in Magistrate Court. He asked the Committee to keep their ears open regarding how the pilot program is working.
D. Mr. Brown stated although it was not on the agenda, that he had recently received a copy of a bill currently pending in the House to be addressed in a subcommittee in the next couple of weeks. He handed out copy of H. 3725 (mimic of S 687) regarding proposal to adopt standards for identification of expert witnesses and introduction of expert evidence which more closely follows the procedures used in Federal Court. There was discussion that for a sole practitioner this would create an economic burden of experts gathering at time starting discovery. The Committee agreed to monitor this.
Next Meeting: The next meeting date was not scheduled.
Adjournment: There being no further business, Mr. Brown adjourned the meeting.
Members Present (15)
William S. Brown, Chair
Linda Jean Amason
David D. Cantrell, Jr.
Matthew W. Christian
Meredith Long Coker (telephone)
Ronald Brian Cox
R. Daniel Day, Jr.
John J. Fantry, Jr.
Rosalyn Woodson Frierson
Karen Lee Huelson
George W. Jefferson
John Derrick Martin
James J. Raman
Mary Spencer Schroeder
Troy A. Tessier
Members Absent (14)
Stephanie G. Borsanyi
John P. Britton
Michael Stephen Church
Leslie A. Cotter, Jr.
Roger B. Jellenik
Eli Alan Poliakoff
Howard S. Sheftman
Lisa Lee Smith
Sarah Patrick Spruill
Paul F. Tecklenburg
William Mark White
Edgar Lloyd Willcox, II
John B. Williams
William C. Wood, Jr.
Others Present (1)
Mrs. James J. Raman
Bar Staff Present (1)
Carey W. Way
Call to Order: Mr. Brown called the meeting to order and welcomed everyone.
Minutes: By motion, second and unanimous vote, the Committee adopted the minutes from the March 20, 2007, meeting.
Old Business:
A. Mr. Brown stated Ms. Way had inquired if the Committee had anything ready to go before the House of Delegates at its upcoming meeting. It was determined there was nothing ready at this time.
B. Rule 43(k), SCRCP: Mr. Brown stated the Committee had expressed concern that it
was the everyday practice to enter into settlement agreements pursuant to the terms of the agreement rather than file them with the Court. The ADR Commission’s request for input from the Practice & Procedure Committee as to its suggestion for revisions was discussed. These revisions were outlined under email to Mr. Cox and Sheftman from Ms. Joan Brown as follows:
No agreement between counsel affecting proceedings in an action shall be binding unless 1) reduced to the form of a consent order or written stipulation signed by counsel and entered in the record; or 2) made in open court and noted upon the record; or 3) signed by all parties to the agreement or their authorized representatives, their attorneys and by any representatives of any insurance carriers participating in the agreement following a mediation or other alternative dispute resolution conference. Settlement agreements filed with the court shall be handled in accordance with Rule 41.1, SCRCP.
Mr. Cox stated he does not think these revisions address the Practice & Procedure Committee’s concerns regarding enforceability. The issues of binding insurers and discovery objectives was also discussed Mr. Brown stated the Practice & Procedure Committee’s proposal made at its last meeting to strike the words “and entered into record†takes care of the enforceability issue, was simpler, and would achieve everyone’s goal. The Practice & Procedure Committee’s suggested revision had been circulated to the ADR Commission and SC Trial Lawyers Association. Ms. Way mentioned that the ADR Commission had invited a Practice and Procedure Committee representative to attend its meeting upcoming meeting to discuss proposed changes. It was determined that Mr. Cox or Mr. Sheftman would attend the meeting to be held on July 20, 2007, at 10:00 a.m. in the South Carolina Bar classroom.
Motion was made, seconded, and unanimously approved to adopt the language from the last meeting to strike “and entered into recordâ€; and further, to send a representative to the upcoming ADR meeting with authority to incorporate changes not to impede this Committee’s objectives.
C. Rule 32(a)(3)(B) and Rule 45, SCRCP: Proposed amendments submitted by Ms. Coker as to SCRCP Rules 32(a) (3)(B) and Rule 45 had previously been distributed to the Committee for review prior to the meeting. Ms. Coker stated following a question previously raised pertaining to judges’ statute of limitations on ability to subpoena, that she had looked at the Constitution and powers of courts and found nothing specifically limiting what this Committee was trying to do. Mr. Brown stated “from the statute standpoint, there is no prohibition to extend powers beyond Countyâ€. Mr. Brown asked for discussion as to proposed amendment to Rules as red-lined in the distributed materials. Mr. Day requested a brief refresher as to context of changes. Ms. Huelson brought up the proposed changes as to Rule 32(a)(3)(B) and stated she thought “witness†should be inserted to read “that the county wherein the witness resides or is employed…â€. Mr. Coker stated “when an expert had come to trial†should be added to (e). Mr. Brown stated that the proposed change to Rule 32 was already approved by the House of Delegates but had not been ruled up by Supreme Court. There was no objection to the motion that this matter be deferred to the next meeting.
D. Electronic Discovery Rules Changes: Mr. Martin stated that it was the intention to mirror South Carolina Rules closely to Federal Rules with the exception of not necessarily requiring a F.R.C.P 26(f) style conference. Mr. Martin stated the Subcommittee would likely want to put together some language amending proposal to address this issue and that he would get materials out to Mr. Raman and Mr. Christian for that purpose.
E. Children’s Justice Task Force and Change to Rule 404, SCREvid.: Mr. Tessier agreed to contact Mr. Schwacke, hear what Solicitors have to say, and work on analysis. Mr. Tessier also agreed to send an email to Mr. Day, who would place the matter on list serve with instructions regarding response.
F. Selection of Municipal Judges: A copy of the Resolution presented to the House of Delegates at the 2007 Bar Convention had been previously disseminated to Mr. Brown, Mr. Fantry, and Mr. Day. Mr. Day reported this matter had been referred to the Magistrate Subcommittee and that he had spoken with a judge in Seneca who will meet with the Committee. He believes they will supply training with more qualification requirements. Mr. Day had disseminated information to Mr. Barroll.
New Business:
A. Study of Potential Jury Improvements
A copy of the article “Can Jury Innovations Improve Juror Understanding of DNA Evidence†from Judicature magazine was included in the meeting packet. Ms. Way made a presentation stating that in light of the fact that jurors come from varied demographic and educational backgrounds, a simple approach of presenting evidence, including complex DNA evidence, using jury innovations to improve juror comprehension might be worth studying. The Committee was receptive to this.
B. 2007-2008 Goals: The following goals were adopted following motion, second and unanimous vote:
Identify and consider revisions to rules not uniformly applied or where there is ambiguity in interpretation.
Consider proposing rules for electronic filing and service of documents.
Consider supplementing rules, including Rule 26(a) and (f), to address issues relating to electronic discovery and information.
Review and draft changes to Rule 43(k), SCRCP.
Analyze proposal to change SC Rule of Evidence 404.
Review issues regarding appointment of municipal judges and magistrates.
Return to previous battles waged and lost (e.g. Rule 6(d)) and voir dire juror questionnaire.
Study analysis of potential jury improvements to assist jurors in understanding (DNA evidence-non exclusive).
C. Mr. Fantry reported that Richland County had a new pilot program for ADR in Magistrate Court. He asked the Committee to keep their ears open regarding how the pilot program is working.
D. Mr. Brown stated although it was not on the agenda, that he had recently received a copy of a bill currently pending in the House to be addressed in a subcommittee in the next couple of weeks. He handed out copy of H. 3725 (mimic of S 687) regarding proposal to adopt standards for identification of expert witnesses and introduction of expert evidence which more closely follows the procedures used in Federal Court. There was discussion that for a sole practitioner this would create an economic burden of experts gathering at time starting discovery. The Committee agreed to monitor this.
Next Meeting: The next meeting date was not scheduled.
Adjournment: There being no further business, Mr. Brown adjourned the meeting.