Important Changes in South Carolina’s Appellate Court Rules, Rules of Civil Procedure, and ADR Rules

Hat tip to Andy Cole of C&L for the following advisory:

Recent amendments to the Appellate Court Rules, Civil Procedure Rules, and ADR Rules became effective today as confirmed by orders by the Supreme Court.

The Appellate Court Rules renumber some sections (general provisions), add guidance for DNA appeals (new rule 247, SCACR), and revised the rule for retention and disposition of exhibits in the Circuit and Family Courts.

Appellate Court Rule 232 (which is re-numbered to 261 per Order 2009-04-02-03) is amended to reflect changes in Rule 43(k), SCRCP, regarding settlement agreements.

Rule 43 (k)

Rule 43(k), SCRCP, is amended by Order 2009-04-02-04, by adding back into the rule the understanding that a written settlement agreement that is executed by both the parties and their attorneys is binding. The rule now reads:

(k) Agreements of Counsel. No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record, or reduced to writing and signed by the parties and their counsel. Settlement agreements shall be handled in accordance with Rule 41.1, SCRCP.

Lastly, the ADR Rules have been amended by Order 2009-04-29-01 to essentially (a) make ADR mandatory in EVERY county if so ordered by the Court, and (b) make the ADR rules apply to ALL state mediations and arbitrations. One may read the rule as deeming “mandatory” and subject to the ADR Rules all ADR conferences in the designated counties (Florence, Horry, Lexington, Richland, Greenville, Anderson, and the Family Court only in Pickens, per Sup.Ct. Order executed June 21, 2006) as well as any referenced mediation in a scheduling order. The revised rule includes some exceptions (new Rule 1(b), ADR) for the non-mandatory ADR conferences. These exceptions mostly deal with timing issues. Of greater impact, however, is that Rule 6, ADR, that provides the list of required attendees is not applicable for a completely voluntary settlement conference. Given the broad sweep of Rule 1, ADR now; however, the non-mandatory ADR cases will be few and far between.