When Law Becomes Craps: Betting on Whether the Judge Read The Brief

by Andy Arnold on February 23, 2012

The law in South Carolina regarding non-compete agreements is sparse.  So, trial courts are left to hash out disputes with modest guidance.  Unfortunately, too often legal memorandums are not read prior to the hearing.  In my last 3 non-compete hearings all in different counties, the opposing parties and I have submitted briefs, affidavits and exhibits before the hearings (two injunctions and one summary judgment motion) and not once had the judge read any of it by the time the arguments began. This would not have been so disturbing but for the fact that two of the three judges who had done no preparatory work felt able to rule from the bench after 15 or 20 minutes of opposing arguments, when some minimal review of the written materials submitted by both parties–even just the written contract itself–was necessary for a minimal understanding of the facts and the arguments. 

I should probably be careful here.  First, many judges do read materials prior to the hearing and those who cannot/do not, generally take the matter under advisement to consult the materials after the hearing. Why not before the hearing?  There are several reasons, and many are not the fault of the trial judges.  Our judicial system is underfunded, many/most judges don’t even have law clerks and dockets are crammed with civil and criminal cases. Also, many times the parties overbrief the issues.  Two fifteen page memorandums with fifty pages of exhibits is a deterrent to a judge who will have five different motions scheduled at the same time. (You never know which lawyers will chicken out before the hearing.)

However, there are more than a few judges who simply do not read the submissions or only sometimes read them or only partially read them.  Too many times, my client’s guess is as good as mine as to which will happen in each case (unless I am at home in Greenville County, in which case I have a better idea.)  And, because different judges hear motions each week, you usually do not know which judge will hear your case until after you file your motion. And for this reason (and others), no matter what the law is and/or what the facts are, a lawyer cannot guarantee what a judge will do:  EVEN IF THE LAW APPEARS CLEAR.  Law should not be a game of craps, but too often, it sure feels like it.

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