Pleadings and motions say why you want at a motion hearing but you need affidavits to say why you’re entitled to it

I encounter litigants, and sometimes even attorneys, who rest on their pleadings and motions (including returns to motions) to support their requests for motions.  They hamstring their legal rights by doing so.

A pleading or motion merely informs the court of what relief a party is seeking or opposing.  Sometimes, a motion or return unsupported by affidavit is sufficient when a motion deals with procedural issues.  For example, a motion to compel might simply attach the discovery request along with proof of when it was issued and then either note that no timely response has been served or attach the insufficient response with the motion explaining the deficiencies.

However, most family court motions cannot be supported merely by the assertion of the attorney—even if the motion attaches exhibits. Often motions require supporting affidavits.  If motions supply the what, affidavits explain the why: why a party is entitled the relief he or she requests while the other party is not.

When a motion or return makes allegations that are not supported by affidavit, and not clearly and unambiguously supported by an attached exhibit, any argument based on the return is objectionable. These allegation are mere statements of counsel and statements of counsel are not evidence.  Bowers v. Bowers, 304 S.C. 65, 68, 403 S.E.2d 127, 129 (Ct. App. 1991) (“Arguments of counsel are also not evidence… statements of fact appearing only in argument of counsel will not be considered.”).

Attorneys frequently get away with arguing positions that are not supported by affidavits because opposing attorneys fail to object. However, one should never allow opposing counsel to represent disputed factual assertations as accurate unless there is an affidavit or exhibit to support the assertion.