Lawyer Talk is Not Evidence

The South Carolina of Appeals yesterday confirmed that it does not ordinarily consider facts that are stated only by counsel. The case is Branch Banking and Trust Co. v. Graphic Express, LLC, No. 2014-UP-278 (S.C. Ct. App. filed June 30, 2014). 

This short, per curiam opinion affirmed in part because factual statements that counsel makes during oral argument do not create a genuine issue of material fact, and because the court will not consider any fact which does not appear in the record on appeal.

This is not new. An earlier post explains that decisions dating back to 1933 hold that appellate courts will not consider statements of fact that are found only within counsel’s argument. McManus v. Bank of Greenwood, 171 S.C. 84, 89, 171 S.E. 473, 475 (1933).

This point often comes up when counsel quotes or paraphrases deposition testimony to the trial court without submitting the deposition transcript. On appeal, counsel then cites to the hearing transcript for the facts stated.

This does not work. See Sessions v. Withers, 327 S.C. 409, 414, 488 S.E.2d 888, 891 (Ct.App. 1997) (disregarding counsel’s recitation of deposition testimony that was not presented to the trial court); Gilmore v. Ivey, D.C., 290 S.C. 53, 58, 348 S.E.2d 180, 184 (Ct.App. 1986)(same).

And the South Carolina Supreme Court recently reversed a $4 million verdict because the plaintiff failed to get a key document into the record. Without the key document, the Court could not tell whether the facts supported the verdict. Dutch Fork Development Group II v. SEL Properties398 S.C. 406, 730 S.E.2d 290 (2012).

Has anyone else similarly faced counsel who relied on their recitation of the purported facts rather than evidence that they forgot to put in the record? Please share.

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