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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{ 4 comments… read them below or add one }

William Henry 03.13.12 at 2:05 pm

Hi there Andy,

Firstly, my apologies for doorstepping you without an entrée, but what’s a comments section for eh? Just dropping you a brief note to say that I’m really enjoying all your work on antitrust law – your posts are never less than informative and you manage to distill quite complex issues, arising themselves from a fairly complex law, into easy to understand, accessible gobbets. I write for a large financial magazine and we’re looking to make a move into covering business law and legal news (antitrust is a natural, and fecund, topic for us to investigate). If you fancy having some of your work featured, drop me an email, or follow me on Twitter (@WilliamHenryWF).

Cheers,

Will

Contract Law Lawyer 04.09.12 at 10:44 am

Great posting. I practice law in Western Pennsylvania and could not agree more about the overall process and game of “chicken” with regard to litigation of the non-compete. In Allegheny County where I practice, cases where an injunction is sought go to the complex litigation center and are heard by once specific judge; however, she has a limited number of published opinions and thus is can be difficult to read the tea leaves, so to speak, when it comes to advising clients. Again, great post!

Todd Elliott

Andy Arnold 04.13.12 at 10:03 am

Thanks for you comments.

Richie Ambrose 02.22.13 at 2:12 pm

I am not sure how any judge or jury could uphold a non compete when your wages have been decreased over a perios of time. Can the employer come in and say hey I am only going to pay you $10,000 a year now when I was paying you $50,000 and oh yeah if you leave do not forget that you signed a non compete. Seems like that would be taking someone hostage and actually the employer should be liable if they try and uphold the noncompete.

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