Beyond the Bar a Few Things You Might’ve Forgotten (while the Courts Were Closed)

• Citation: Vol. 37-1
• Year: 2025

BEYOND THE BAR A Few Things You Might’ve Forgotten (While the Courts Were Closed)

No. Vol. 37 Issue 1 Pg. 17

South Carolina Lawyer

July, 2025

A Few Things You Might've Forgotten (While the Courts Were Closed)

BY WARREN MOISE

It was a scary time. At the height of the COVID-19 pandemic, no one knew who would fall ill. who would recover quickly, or who had died overnight. Here in Charleston there were rumors that, for example, 25 people died "last night.'' We still don't know how much of this was true.

In the midst of uncertainty, the judiciary took a hard look at the chaos and formulated a series of orders. Today, I'll set forth some of those steps taken mainly by our state judiciary (the district courts have their own procedures) in case some of us could use a refresher before an upcoming hearing or trial.

I hope it helps.

By the way, in case you're unaware, the purpose of the RCT Order is to provide guidance on the use of remote communication technology by the trial courts. This column includes appeals to the circuit courts.

Let's get started!

The Supreme Court issued several orders/amended orders to get the trial courts back on the tracks. See Amended Order Regarding Use of Remote Comm. Tech, by the Trial Courts (as Amended September 21, 2021), Appellate Case No. 2021-001032; Supreme Court of South Carolina [hereinafter RCT Order].

"Remote Communication Technology ('RCT') is technology such as video conferencing and teleconferencing which allows audio and/or video to be shared at differing locations in real time.

This can range from a telephone call or conference call which provides only audio to more sophisticated software products like WebEx, Zoom or Microsoft Teams which allow both audio and video to be shared. When this order refers to using RCT, Enhanced Remote Communication Technology (ERCT) may be used instead.''

In order to avoid boring you to death with long lists of administrative orders. I'll keep it short and sweet. After all, a column does no good if no one reads it. So, as Professor Steve Spitz said to the USC Law School Class of '88 every Monday morning before Property commenced, "OK. Let's get started!"

Virtual trials in general

Generally speaking and regardless of the type trial involved, the usual modus operand! is that all necessary persons (e.g., the jury, the accused, counsel, and any self-represented litigant) should be present. The judge is included within that group, of course.

As you might recall, when a judge applies these rules, he or she has wide-ranging discretion to achieve justice as in any case before him, as usual.

This applies to contempt of court. The RCT Order at (12) deals with contempt of court. It provides as follows:

Effect of Remote Proceedings;

Direct Contempt. Proceedings conducted using RCT shall have the same effect as if all of the participants had been physically present in the courtroom. For the purpose of any direct contempt, a person participating by RCT shall be deemed to be in the presence of the judge.

Id.

Courtroom decorum, and things like that

Just because a motion hearing might resemble a Google search, and just because you're in the courtroom virtually doesn't mean you're no longer an officer of the court. Take a look at RCT Order (11) (A): Powers and Decorum; Direct Contempt.

(A) Powers and Decorum. Proceedings conducted using RCT shall have the same effect as if all of the participants had been physically present in the courtroom to the extent practicable and possible. Any remote location (s) from which participants appear shall be considered extensions of the courtroom. The judge's pronouncements, instructions, and rulings shall have the same force and binding effect as if all participants had been physically present in the courtroom. Participants—especially judges, lawyers, and court personnel—should wear the same professional attire they would in a courtroom and follow ordinary courtroom protocol to the extent practicable.

I've had two judges comment on lawyers who showed up for a virtual motion hearing wearing casual wear, e.g., without a necktie, at a WebEx, Zoom, or Microsoft Teams proceeding. You might've heard a peeved judge inform a arrogant litigant in bond court or a snippy defense lawyer, that "I don't care if you disrespect me, but I do care if you disrespect that flag!" Don't do it.

To what type hearing does the RCT Order apply?

According to Rule 612 of the South Carolina Appellate Court Rules (SCA-CR), our "[Supreme Court] may provide for the use of remote communication technology by the courts of this State to conduct proceedings, including, but not limited to trials, hearings, guilty pleas, discovery, grand jury proceedings, and mediation or arbitration under the South Carolina Court-Annexed Alternative Dispute Resolution Rules.

A judge is a judge, and a notary is a notary

For purposes of the RCT Order, (1) "A judge is a judge of the circuit court, family court, probate court, magistrate court and municipal court, including masters-in-equity and special referees." Not surprisingly, a "trial court" includes a "circuit court (including masters-in-equity court), family court, probate court, magistrate court and municipal court." See RCT Order.

As to notaries public and depositions, see RCT Order 10.

Status conferences

I am convinced that if nations around the world required more periodic status and scheduling conferences, war would be reduced, bickering would diminish, and peace would be right around the corner. In light of the potential conflicts between the RCT Order and the South Carolina Rules of Civil Procedure (including evidence rules), a status conference could often be a godsend.

Some issues that might be addressed at a status conference are:

• More and more depositions and trials are being done remotely and electronically. At a typical deposition, the marking of exhibits is often done in a lax way with some lawyers producing deposition exhibits before depositions and some not.

• The RCT Order (c)(13) is clear about production of exhibits (in paper or electronically) "during the course of a proceeding" under the RCT: The party wanting to introduce the exhibit must "ensure" that the presiding judge, the other parties and their lawyers, and the court reporter have copies of the exhibit before it's introduced. The exhibit may be in paper or produced electronically. The judge may require that the original of the exhibit to be presented to the judge.

• Then again, there's the rule that under the Federal Local Rules and the South Carolina common law, the pretrial handling of exhibits and evidence to be used solely for impeachment generally need not be disclosed in advance.

• There are many differences between the RCT Order and the South Carolina Rules of Civil Procedure as far as discovery. Some procedures are not really affected by the RCT Order, such as objections to interrogatories or requests to admit. Video depositions are more problematic. South Carolina Rule of Procedure Rule 30 sets forth a complex set-up for the taking of depositions (most of which we learned in Civil Procedure). Remember that deposition testimony may be taken by means other than a stenographer. For example, under the rules of Civil Procedure, after a video recording is transcribed, the party taking the deposition must remove the objections before trial.

PDF

Another potential glitch that might arise deals with pdf exhibits. A couple of years ago, I helped defend a lawsuit against an inexperienced Upstate trial attorney. As is often the case, the closer we got to trial, the more difficult the lawyers became (other than myself, of course,) to deal with.

In the midst of trial (and during the Plaintiff's case), he marked and showed us a flash drive with his trial exhibits. There were possibly 100 documents saved on the flash drive. Out of the 100 or so documents on the flash drive were roughly 50 documents that were inadmissible on hearsay and other grounds too. However, both admissible and inadmissible documents were saved on a single, lengthy pdf, and he was unable to deal with the problem on short notice.

Objection!

Had he saved the documents (his trial exhibits) as separate pdf documents, he could have (with the help of a trusty trial paralegal) separated the individual admissible exhibits, moved them right into evidence.

The case settled, and the judge did not rule on the evidence objection. It would've been interesting to hear her analysis though.

Long Ago and Far Await

I hope this helps. "Virtual law" isn't going anywhere. Or put another way, Elvis is dead, and I ain't feelin' so good myself. Good luck.