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F.
Special Matters at Trial

1. Arguments on Motions and at Trial

The moving party upon a motion shall have the right, at that party's option, to both open and close argument on the motion. The plaintiff shall have the option to have the right to open and close argument at trial. However, a party admitting the adverse party's claim in his pleading, and taking upon him the burden of proof, shall have the option to have the right to open and close at trial. The party having the right to open shall be required to open and full, and may respond in full but may not introduce any new matter. (Rule 22, SCRMC)

2. Sequestration of Witnesses

Upon request of one party, witnesses who are expected to give testimony at a later point in the trial may be excluded from court to prevent their hearing any earlier testimony. Sequestration may only be applied to witnesses, and not to parties to the dispute even though they may be called upon to testify. In addition, parties found to be victims may not be sequestered.

3. Admissibility of Evidence

A task of the magistrate of major importance is to rule on the admissibility of evidence by sustaining or overruling objections to its introduction. The magistrate should familiarize himself with the S.C. Rules of Evidence.

4. Objections

Objections by a party, or their attorney, should be to the admissibility of evidence or the conduct of a party (or attorney), or to the form of a question during examination of a witness.

In any case, the objection should be stated clearly by the party making it, and it should be stated with specificity. The magistrate may immediately rule on the objection or allow the opposing party to be heard . When in doubt, both parties should be heard, and the magistrate should then rule, sustaining or overruling the objection. After the ruling is made, no further discussion of the ruling should be allowed, as the judge's ruling ends the issue.

5. Jury Note-Taking

The allowance or disallowance juror note taking notes during trial rests with the sound discretion of the trial judge. State v. Trent, 234 S.C., 26, 156 S.E.2d 527 (1959). However, except in complicated cases, the allowance of note taking by jurors is rare, as all material which may be considered as evidence will be sent to them in their deliberation room for consideration.

6. Bench Conferences with Counsel

Oftentimes, a lawyer may request permission to approach the bench for the purpose of discussing some point of the trial out of the hearing of the jury. In most instances, the magistrate should allow it, having both attorneys or parties come forward. If the discussion is lengthy, the jury should be recessed.

7. Compelling Attendance of Witnesses

Upon the request of any party to an action, the magistrate must issue a subpoena compelling the attendance for the purpose of giving testimony of any person whose testimony may be required and who resides in the county. The subpoena should show a certain time and place at which the witness is to appear, and must be served on the witness at least one day before his appearance is required. The court may issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service.  An attorney as officer of the court may also issue and sign a subpoena on behalf of a court in which the attorney is authorized to practice. (Rule 13 (e), SCRMC; § 22-3-930).

Should a properly notified witness fail to appear, the magistrate may issue a rule to show cause commanding the witness be brought before the magistrate, or if any witness attending refuses to give evidence without showing good cause, the magistrate may punish the witness for contempt by imposition of a sentence up to the limits imposed on magistrates' courts in Section 22-3-550. (§ 22-3-930).

8. Compensation of Witnesses

In magistrates' courts in civil cases, a witness subpoenaed to attend a magstrate civil court proceeding should receive $25 dollars per day for each day's attendance and the same mileage as provided for official travel for state employees and officers. Rule 23(e), SCRMC. These fees are to be paid by the party calling the witness. The fees as authorized may be used for the purpose of determining costs to be assessed against a losing party. Section 19-9-80 details costs and fees for non-resident witnesses.

9. Keeping of a Trial Record

While there is no specific provision requiring magistrates to take down or record the testimony of witnesses or the proceedings on civil matters as exists for criminal actions (§ 22-3-790), since the return of the magistrate to the higher court on appeal includes "the testimony, proceedings and judgment," a requirement of a certain degree of recordation is implied. Magistrates should take down a general outline of the proceedings, as well as a substantive, but not necessarily verbatim, description of the testimony (Op. Att'y Gen. No. 3206 dated 1970-71) and have it signed by the witnesses. Ideally, a court reporter, stenographer or a mechanical device should be used to preserve the proceedings.

In any case in magistrate's court, in which the magistrate takes down the substance of a witness' testimony, it should be signed by the witness and then filed in the civil docket book.

In a case before a magistrate in which a stenographer is present and takes down the testimony, or it is electronically recorded, the transcription need not be read over and signed by the witnesses, but only filed as usual, and may in the discretion of the magistrate upon determining its accuracy be authorized as the official trial record.

10. Directed Verdicts

Upon the conclusion of the presentation of all evidence in a civil case, if in the opinion of the judge there is only one reasonable inference to be drawn from the whole of the testimony, the trial judge may hold that there are no factual issues for the jury's consideration and render a directed verdict on the questions of law presented. (Rule 16, SCRMC). Upon the rendering of such a verdict by the magistrate, the jury should make no further consideration of the case and should be discharged.

11. Final Instructions to the Jury

At the conclusion of the closing arguments, the magistrate should instruct the jury as to the law applicable to the facts in the case. Though there are no specific provisions as to jury instructions, or charges, in the magistrate's court, such instructions should include all matters of law which the magistrate considers necessary to the jury in their deliberations. The magistrate may, at the beginning of the trial, inform the parties, or their attorneys, that they may submit suggested charges they would like read to the jury. The magistrate should examine these submitted instructions, eliminating those not supported by sufficient evidence or by law, as well as those which duplicate any instructions he intends to give.

Instructions should be as brief as possible, while at the same time clear and understandable. Repetition or duplication of instructions should be avoided as it gives the appearance of undue emphasis on the point.

The magistrate himself should charge the jury. It should never be done by one of the parties or their counsel. The following are suggested instructions:

"You have heard all the evidence presented by the plaintiff and the defendant.

"It is your duty to determine the facts, and to determine them from the evidence and the reasonable inferences arising from the evidence, and in so doing you must not indulge in guesswork or speculation. You must not be influenced by prejudice, passion, or sympathy.

"The evidence which you are to consider consists of the testimony of witnesses and the exhibits admitted in evidence. You must not concern yourself with the objections or the reasons for any rulings. You must not consider testimony or exhibits to which an objection was sustained, which has been ordered stricken, or which I have instructed you to disregard.

"Opening statements and closing arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but they are not evidence.

"No statement, or ruling or remark which I may have made during the course of the trial is intended to indicate my opinion as to what the facts are. You are to determine the facts. In this determination, you alone must decide upon the believability of the evidence and its weight and value. In considering the weight and value of the testimony of any witness, you may take into consideration the appearance, attitude and behavior of the witness, the interest of the witness in the outcome of the suit, the relation of the witness to any parties to the suit, the inclination of the witness to speak truthfully or not, the probability or improbability of the witness' statements, and all other facts and circumstances in evidence. Thus, you may give the testimony of any witness just such weight and value as you believe the testimony of such witness is entitled to receive."

Next, the jury should be instructed on the standard of proof by which they must make their determination:

"You must deliver a verdict in accordance with the preponderance of the evidence. A preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in your minds the belief that what is sought to be proved is more likely true than not true."

"In determining whether an issue has been proved by a preponderance of the evidence, you should consider all the evidence bearing upon the issue, regardless of which side has produced it."

At this point, the magistrate should instruct the jury on the law applicable in the action as to the plaintiff's claim and affirmative defenses or counterclaims. A separate charge which may be used where counterclaims exist is as follows:

"Upon your conclusion and verdict as to the entitlement of the plaintiff to recover on his claim, it is then your duty to consider the counterclaim of the defendant which has been read to you. In doing so, you will simply reverse the position of the parties and apply the legal principles and standards of proof which I have explained to you in their new roles; because insofar as the counterclaim is concerned, the defendant has the affirmative burden of proof on the issue. In order to recover he must establish his claim by the greater weight of the evidence, or the preponderance." (An explanation of the possible verdicts may be given here).

To complete the instructions the following may be used:

"Until this case is submitted to you for your deliberation, you must not discuss this case with anyone or remain within hearing of anyone discussing it. After this case has been submitted to you, you must discuss this case only in the jury room when all members of the jury are present. You are to keep an open mind and you shall not decide any issue in this case until the case is submitted to you for your deliberation.

"When you retire to the jury room, you should first (if you have not done so already) select a foreman to act as presiding officer in your deliberation of each issue. If any questions arise concerning the law, the foreman will send a request to me through the constable. I will then convene the jury and answer the question. You must not attempt to gain any information about the case by any other method.

"The constable is present to maintain the privacy of your deliberations, to assist in meeting your physical necessities, and to relay any questions to me. You must not attempt to involve the constable or any other person in your deliberations.

"Your verdict must be unanimous."

12. Submission of the Case

Upon completion of instructions to the jury, the magistrate must inquire of the parties if there are any additions or corrections to the charge as given, and that done, the jury should be retired to the deliberation room. The jurors should take with them into the jury room all papers received in evidence, any exhibits admitted, and a copy of the written jury instructions (if possible).

If a question should arise during the course of the jury's deliberations, the magistrate should ascertain from the foreman the nature of the question. If the question is of a factual matter, the magistrate should instruct the jury that their recollections and interpretations of factual matters are their only guide as there is usually no record of the testimony available. However, if trial testimony was recorded or transcribed by an authorized stenographer or reporter, the magistrate may allow the transcript in the deliberation room for the jury's consideration. If the question is of a collateral nature, or is not relevant to the issues to be determined, the magistrate should instruct the jury to ignore it and continue its deliberations.

If the question is one pertaining to the law affecting the issues of the action, the magistrate should re-read that part of his instructions dealing with the point causing the jury's confusion. If that is not sufficient to clarify the issue of law, the magistrate may prepare, with the assistance of the parties if he desires, further instructions for the jury.

If the jury is unable to reach a unanimous verdict and so informs the magistrate, he should re-convene the jury in the courtroom and remind the jury of its obligation to reach a verdict. The jury should then be returned to the jury room for further deliberation. A suggested charge for this situation is as follows:

"In many cases considered by juries, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not mere acquiescence in the conclusion of his fellows, yet, in order to bring six minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to six people more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so."

13. Mistrials

A jury, once impaneled should not be discharged until a verdict is reached or the judge in his discretion determines that a mistrial should be declared. A mistrial should only be declared in two instances. If during the course of the trial, an occurrence in the presence of the jury, in the form of conduct of any party, attorney or other, or by the exposure of otherwise inadmissible evidence, is determined by the magistrate to have created a likelihood of improper prejudicial effect on the minds of the jurors, a mistrial may be declared. A mistrial may also be declared if, after several attempts by the jury over a period of time, and possibly after further instructions from the magistrate, the magistrate is convinced that the jury will not be able to reach a unanimous verdict.

14. Returning the Verdict

Upon finally reaching the verdict, the foreman of the jury should so advise the magistrate. Court should be reconvened with all parties present, as well as their counsel, and the jury. The foreman should hand the verdict in written form to the magistrate. The parties should be directed to rise and the magistrate should then pronounce the verdict, which should include an announcement of the party in whose favor the jury decided, the amount of damages awarded on the claim, and the verdict and amounts awarded on any counterclaims.

15. Judgment Notwithstanding the Verdict (JNOV)

If a jury verdict is returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if a directed verdict had been granted. A jury verdict is final if no motion for a new trial or judgment notwithstanding the verdict (JNOV) is filed with the court within five (5) days of the rendering of the jury verdict and the court has not on its own motion ordered a new trial or directed a verdict notwithstanding the jury verdict. Rule 16, SCRMC.

In ruling on a motion for JNOV, the trial judge cannot disturb the factual findings of a jury unless a review of the record discloses no evidence which reasonably supports them. Horry County v. Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993);  Force v. Richland Mem'l Hosp., 322 S.C. 283, 471 S.E.2d 714 (Ct.App.1996).  In making this determination, the judge must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. Gilliland v. Doe, 357 S.C. 197, 592 S.E.2d 626 (2004); Small v. Pioneer Mach., Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct.App.1997).  The trial court must deny the motion when the evidence yields more than one inference or its inferences are in doubt. Jinks v. Richland County, 355 S.C. 341, 585 S.E.2d 281 (2003);  Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct.App.2000);  see also Force, 322 S.C. at 284, 471 S.E.2d at 715 (stating that if more than one reasonable inference exists, jury verdict must stand).

In deciding a motion for JNOV, the trial judge is concerned with the existence of evidence, not its weight. Curcio v. Caterpillar, Inc., 355 S.C. 316, 585 S.E.2d 272 (2003).  When considering a JNOV motion, neither an appellate court, nor the trial court has authority to decide credibility issues or to resolve conflicts in the testimony or the evidence. Id. at 320, 585 S.E.2d at 274; Reiland v. Southland Equip. Serv., Inc., 330 S.C. 617, 500 S.E.2d 145 (Ct.App.1998).  A motion for JNOV may be granted only if no reasonable jury could have reached the challenged verdict. Gastineau v. Murphy, 331 S.C. 565, 503 S.E.2d 712 (1998); Welch, 342 S.C. at 300, 536 S.E.2d at 419.   If more than one inference can be drawn from the evidence, the grant of a JNOV is improper and the case must be left to the jury's determination. Gastineau, 331 S.C. at 568, 503 S.E.2d at 713.   The verdict will be upheld if there is any evidence to sustain the factual findings implicit in the jury's verdict. Shupe v. Settle, 315 S.C. 510, 445 S.E.2d 651 (Ct.App.1994). 

16. Relief From Judgment or Order

Rule 12(a), SCRMC provides that clerical mistakes and errors arising from oversight or omission in judgments, orders, or other parts of the record may be corrected by the court at any time of its own initiative or on the motion of any party and after any notice that the court orders. During the pendency of an appeal, leave to correct the mistake must be obtained from the appellate court.

Rule 12(b), SCRMC provides that on motion and upon terms that are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 19; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3), not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of the court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. During the pendency of an appeal, leave to make the motion must be obtained from the appellate court. The procedure for obtaining any relief from judgment shall be by motion as prescribed in these rules, by appeal, or by an independent action.