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In fact, it's hard -- it's not easy to get up 5:00 in the morning and go to work and it's not easy after getting home after a trial all day long to go back at 9:00 o'clock and stay until midnight. It is not easy. It takes some measure of discipline, and I hate to sound like I'm bragging -- my parents taught me never to do that, but I guess it's what you want to hear -- that's my philosophy, I work as hard as I have to and sometimes even a little harder.
Q. Would you say that your clients are generally satisfied with the progress of their cases?
A. I think so. Domestic relations cases are unique to the law. They are the most emotional. I deal with people who are usually emotionally crippled from the get-go. They are usually angry at authority figures, a lot of those people are, understandably. And they view lawyers as part of the system.

Judge Mendenhall's travesty has created problems for me in my practice because for years I told my clients this doesn't really happen, you just see this in -- on movies and television or read it in books and, of course, it happened right here in South Carolina which distresses me to no end, so my clients have enjoyed this last week or two telling me, I told you so, aren't you naive, Mr. Lawyer, but I hope that's the only time we'll ever see that. I think it is. I've never seen anything like that in my career.

But, anyway, the best measure I think of a divorce lawyer or a matrimonial lawyer's client satisfaction ratio is when they come back to you when there is trouble in the future. And generally when their cases involving children, the law, of course, as we all know allows for the Family Court to have continuing jurisdiction based upon a change of circumstances where there is child custody, child support, health insurance

One has generated a lot of publicity. You may have heard about a lady named Jennifer Ayers up in Winnsboro who was locked up in jail for three months for allegedly not turning over her children for visitation she claims that her children were sexually abused by her ex-husband, and that's all I can say about it because I'm now under a gag order and that's all I want to say about it, but that case and others -- well, in 1993, I probably tried civil custody cases, seven or eight for more than one day each in 1993 alone. I don't know lawyers who do that in their whole career. I do a lot of custody work, God awful custody work.
Q. Well, let me --
A. Very contentious.
Q. Let me ask you, you did testify, I think, before the Judiciary Committee subcommittee on custody matters.
A. Yes, ma'am.
Q. Could you discuss that for a minute and were you -- did you consider yourself a lobbyist in doing that or not?
A. No, I was not a lobbyist and I'm -- I'd love to answer Senator Russell's question because it was on a gender bias law. I feel it's gender biased. I was called by Representative Neilson, whose brother I had represented in a child custody action in 1993. It was one of the seven or eight I mentioned a moment ago.

But, anyway, she asked me to come testify for that in support of that particular legislation which I believe she is sponsoring in the House, and so I had no objection to doing that, and I came on in. While I was there, there was a slew of other bills that I felt I had something to say about that involved domestic relations including some grandparent visitation which is a very misunderstood statute in my opinion, involving some -- abolishing the prohibition -- the case law prohibition against joint custody and also statutory abolition of the case law which seems to abolish -- it seems to bar, I should say, extensive visitation because it smells like or looks like joint custody, so I spoke on those bills while I was there.

I'd never seen them before and didn't even -- Representative Neilson handed me a copy of them, so I testified -- well, you may have been there, Ms. McNamee. I don't remember. But I testified probably too long about those, but I was not there as a lobbyist. I have never been a lobbyist. I don't want to be a lobbyist.
Q. Would you describe for the gentlemen here, and the ladies, too, your feelings on judicial temperament and what you think makes a good Family Court judge? What are those qualities?
A. Family Court judges must be patient. Must be patient to people. They must be slow to anger. They must be courteous people and conscientious people. Once again, I'm violating my parents' brag rule, but I think I meet those criteria.

There is no more trying practice of law than being a domestic relations lawyer as I've been now for 12 years or whatever. And yet usually, usually, I hold my temper in check and it gets -- often gets personal with other lawyers unfortunately, but it does, and I try to remain above that fray.

I'm kind of an easygoing person by nature. I remember in law school, I didn't know whether to take this as an insult or a compliment, but a classmate of mine once remarked to me, she said, "Doug, you ought to be in the sales business because you're so easygoing." Well, anyway, I didn't quit law school and here I am, but I'm just kind of an easygoing fellow and always have been.

And I don't think -- I hope and I pray, and I don't believe I would ever change. I know in my heart I wouldn't change just because I donned a

You deal with such an array of upset people from all walks of life and they are so upset when they come in there and the last thing they need is to have some judge bark at them and treat them rudely. I would never do that.
Q. Do you see becoming a Family Court judge as the pinnacle of your career?
A. To me, it would be. I don't seek this job for any other reason. I'm not using this as a stepping stone, which I've seen too often from some people who get the position I'm seeking, not the one in particular, but Family Court judge.

I have been a scholar of the law ever since I became an attorney. In fact, when I was in law school, I never would have dreamed I would become a matrimonial lawyer. I just kind of fell into it when I finished law school and Harvey Golden offered me a clerkship job, it was somebody I knew and I knew he was a reputable attorney and took the chance and then later when I passed the Bar, he asked me to stay on as an affiliate with his firm. He has no associates, he has affiliates. And I did, it was an honor.

I stayed there for -- toughed it out for nine years when I started looking like him, bald, I left, but -- just kidding. I shouldn't say that about Harvey, but, anyway, I would love nothing more than to have the chance to serve in this capacity. I was raised by parents who are compassionate and civic minded individuals, and now I'm going to start sounding like a Kennedy. I don't mean to do that, but -- especially with so many Republicans in the room.

But, anyway, I was raised by civic minded, compassionate people who always instilled in all five of their children -- I'm the oldest -- to serve as best you could in whatever career you choose, serve the public, give something back to the society or country that's given you so much as I've been fortunate enough to receive in my life, so it would be the pinnacle of my career.

I don't long to get on the Circuit Court bench. I have no interest in doing that. I don't long to get on the Supreme Court because I think the Supreme Court justices miss the day to day byplay with lawyers. I think -- I've talked to some of them who have told me that. They really miss that. They feel kind of isolated, so I just would love to be a Family Court judge for the rest of my career. I'd love it.

And I know you're going to ask me about ex parte communications. I can address that now. It's germane. If you don't mind, I'll go right into it because I've heard you ask those -- Mr. Elliott ask those questions. Ex parte -- and also about recusals.

Ex parte communications are only proper in my opinion, and they happen a lot in Family Court, when somebody presents a TRO, a request for a temporary restraining order ex parte. In my practice, I've lectured on it in Continuing Legal Education Seminars at least two occasions I can think of off the top of my head on how you go about getting an ex parte TRO with completely no verbal communication with the judge except hello, how are you, I'll leave now. I follow Rule 65 down the line. I prepare affidavits. I prepare written requests which is part of the record for an ex parte Temporary Restraining Order and my pleadings are always verified by my client. Rule 65 requires it.

As far as recusals go, I was in Family Court the other day and I was in a judge's office with a bunch of lawyers and we were talking about some cases we had handled against each other over the years and the judge's secretary who was listening remarked, "Doug, I think you're going to know about every case that comes before you in Lexington County whenever it comes up for modification." Here's the way I'm going to approach it in general terms, if I ever represented a litigant before me, I won't hear their case and I think it would be improper, even if it's a new marriage, a new custody, even if it has nothing to do with the action I may have represented them in years gone by because there'll be a lot of people.

I have a hundred open files at any given moment, so I've got to be very careful about that. If it's a new marriage and it's a different child they're seeking custody of or they're seeking alimony from an ex-spouse or a new spouse, whatever, if it's going to appear that I might favor this former client against the new party, although I would not, but I won't hear that case.

If it's someone who is a close friend, I won't hear that case. If it's someone with whom I've been associated in my political -- little political dabbings I've had over the years in one of the parties over in Lexington, I won't hear that case. If it's a -- somebody I know over at church, I'll be reluctant to hear the case and probably won't.

I just am very -- I would be very careful about that. I may end up turning away a lot of the clients and giving them to my bench mates, but I think it's -- I can't think of a more important thing for a judge to do then get out of cases that he or she should not be hearing and I will be very, very careful about that.
Q. Mr. Kotti, you have a lot of experience, obviously, and a lot of experience in custody and divorce, et cetera, how about juvenile delinquency?
A. Yes. A good bit for a sole practitioner who's never been a public defender or prosecutor. Throughout my career, I've been appointed many times to defend juveniles. I've never prosecuted any, but I've defended many. One who was charged with murder, he killed his mother. That went to the Supreme Court. It's listed in my PDQ as one of the more significant cases I've ever handled.

I've also been appointed to represent crack cocaine dealers. There are a lot of them, that's something I'd like to talk about, by the way, juvenile problem. I've been appointed to represent juveniles who have assaulted and battered people, who have raped people, who have missed school, who have broken and entered and done about everything, and a lot of it -- gun charges, I represent a lot of kids. I have a pending waiver hearing probably in two weeks they're telling me. That's how much notice they give us for one of my crack cocaine dealers who -- excuse me, alleged crack cocaine dealer, 15 years old, selling at an elementary school allegedly.
Q. Could we get into that then?
A. Sure.
Q. What are your ideas on treating and dealing with the growing juvenile crime problem in this state?
A. The last four or five years there has been a completely unforeseen, I believe unforeseen in its magnitude, explosion of juvenile crime. It's unbelievable.

I don't believe that the average lay person or the average -- maybe people in the legislature, present company excluded, of course, because you're on the Judiciary Committee, but a lot of people really don't understand how bad it is.

Kids are taking Uzis to school with four clips of ammunition. Kids are raping each other, killing each other, beating each other to death with baseball bats every day. And it's a tremendous problem. It's one that troubles me personally and one of the reasons, and I hate to sound altruistic, but it's one of the reasons I'd like to be Family Court judge, I want to get in there and help some of these kids and get them squared away because I -- we all know what the root problems are. It's become a cliche -- fatherless homes, coke, completely absent parents, no

We saw it coming, I think. This generation right behind us folks is a very scary bunch of people for a lot of reasons because I don't think they've had the attention they should have. What I foresee myself doing, getting to your point -- that was my preamble -- preamble to my answer.

Family Court judges have a unique opportunity and unique responsibility to address this problem in new ways. I think that all too often I've seen cases I've handled that become rote and routine. What they do is well, can he go to the Marine Institute, nah, no, they won't let him in because he's got two convictions. Let's see, John G. Richards? He's been there once before.

What are we going to do with this child? There needs to be -- and I think that Family Court judges have pretty far reaching statutory powers that they haven't utilized in my opinion. One Judge used to always do it, I know that, to bring in and make parties to juvenile actions various state agencies, not just DJJ, Department of Juvenile Justice, but Department of Mental Health.

I've done this before, ordered -- I guess, it's Department of Mental Retardation, the Department of Social Services. In 1983, I was appointed to represent a child who had held his mother's DSS caseworker at scissors' point in her office. He was brought in on a juvenile delinquency petition for assault and some other charges. They really -- the Solicitor's Office really beefed it up. I moved to make parties to that action, because he had some retardation problems, he had some -- he was schizophrenic, and none of his needs were being addressed by anybody and there are a lot of kids who fall in those cracks unfortunately. It's a great tragedy in this state or throughout the country now.

What I did was I brought a motion to make parties to that action the Department of Mental Health, the Department of Mental Retardation and DSS who was involved in the juvenile actions and the judge granted my motion surprisingly enough and we worked out a very unique treatment plan for that child and today he's doing pretty well because I hear from him once in a while. And he couldn't even -- he was six when this happened, seven years old. He had an identical twin brother.

They couldn't even speak English. They had been locked in closets for hours on end by their just -- well, poor excuse for a mother who later went to jail, I believe, on some other charges, thank goodness. But I think that taught me a lessen.

It's something I remembered studying in Civil Procedure, you know, bring a motion to add people as necessary parties and so I did it. Baby

Family Court judges don't have clerks and I don't think they're enough Family Court judges to go around as it is. Consequently, I foresee myself if I'm fortunate enough to be elected to appoint or ask lawyers to write orders.

Now, it depends what kind of case, you've got. Let's say, the case is settled and there is a rather extensive involved decree which needs to be incorporated in the terms of the order, well, I would ask the lawyer to do that. If the case were contested and were somewhat complicated involving a lot of marital assets, extensive marital fault involving cocaine abuse and things that I've handled many -- probably a hundred times or more in my practice, I might ask the -- if the case were tried to conclusion without a settlement, I would like to ask the lawyers perhaps to submit proposed orders to me. Then I would pick from those and ask the -- following the equitable guidelines announced by the Judicial Standards Commission five years ago -- and I'll go over those in a minute if you want me to, but following those guidelines would either draft my own order or ask the lawyer whose order most closely resembles my decision to go ahead and write the order in accordance with my rulings. That's the way I would do it and there are so many permutations of what comes before a Family Court judge.

It's kind of mind boggling, but I've done -- as an attorney, I'm usually appointed to write orders because -- I'll brag again. I hate to do it -- I write pretty good orders. They're pretty appellate proof. They're pretty extensive. I follow Rule 27 very carefully. I follow the case law beginning with Anderson versus Anderson, 1983 very carefully because I don't want my orders remanded for lack of Conclusions of Law or Findings of Fact or whatever. They're all in there usually citing jurisdiction and venue on through to the issues at hand.

This is what I would do, the other lawyer always sees it. Now, if the judge tells me to send it to the other lawyer first, I'll do that. If the judge says just get it to me. I'll copy the lawyer, otherwise that'd be an ex parte communication in my opinion.

The ethical rules that were designed by what I call Judge Pyle's Commission, or the three -- I think there were two judge -- lawyers -- strike that. I'm sorry. Two judges and one lawyer as a committee several years ago said this is what judge -- Family Court judges are to do, the developed the Equitable Guidelines of a case because it became such a problem. The judge can announce his or her decision on the record by either doing it at the conclusion of the testimony that particular day or calling the lawyers back in and announcing the decision and then asking one of the lawyers to draft the order.

The judge can ask for proposed orders as I outlined before and then pick and choose from those and then ask the other lawyer to go ahead and make these changes for me in accordance with my rulings and how I've corrected the order and send that back to me.

So, I guess I'm straying from the point of your question. I don't mean to do that, forgive me. But the point is that the procedures that I would follow would be certainly within the ethical guidelines established by the Family -- by that Commission, perhaps even more so, because I'm very fearful of any client feeling that there was some ex parte communications between the lawyer and
-- I'm sorry, between the judge and only one of the lawyers.

Everything would be aboveboard. Everybody would get a courtesy copy of my letters and there would be telephone conference calls rather than one -- calling just the one lawyer and so forth.
Q. Would it ever arise that when you file a settlement agreement and you have both parties signing it and you file it, would it ever arise that the document filed is not the same document as the one that you send to the parties?
A. A settlement agreement?
Q. Yes. Particularly with a settlement agreement.
A. You mean an order with the settlement agreement in it?

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