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  • DAMSELS IN DISTRESS

    Damsels in distress have always been a part of my practice, but they didn’t start out as the fairy tale variety. Fort Jackson was established in Columbia, South Carolina by act of Congress in 1917 to train soldiers for the First World War but, the war ended a year later and the fort didn’t become a reality until 1940 when it was needed to train soldiers for the Second World War. For however long the fort has existed, working girls have plied their trade servicing the servicemen. Little did I know my first job as a lawyer was to become their protector.

           Senator Isadore Lourie, who hired me fresh out of law school, had a special relationship with the bail bondsman most trusted by the ladies. They had to pay $200.00, 10% of the standard $2,000.00 bond, to get bonded out of the Columbia City jail and had to pay another $250.00 by Monday morning’s municipal court for our legal fees. Naturally, they were busiest on Saturday nights which meant I was called into action Sunday mornings.

           I would walk the jail’s holding cells collecting names, information, and $200.00 so I could post pre-signed bail bonds to spring the working girls. You don’t want to know where the woman kept their bail bond money, suffice it say I carried a handkerchief to take the money. Sometimes someone wouldn’t have stashed the cash, and I was given discretion in such cases to get them out on credit if I recognized them as repeat customers. That was the hardest part of my job because the woman didn’t look the same locked up as they did on the street. The jailers took their wigs in booking eliminating wigs as obvious hiding places for their money. As I walked down the holding cells I’d be confronted by women who didn’t look anywhere near as enticing without their wigs and makeup. “Yo, lawyer, it’s me, Mustang. Don’t you member me?”

           The easier part of my job came on Monday morning when the ladies had to face the consequences for their transgressions in municipal court. Every Monday morning, after I’d collected our fees, I’d sit in the courtroom surrounded by the women all dressed up in their finery and listen as the Municipal Court judge railed against the evils of prostitution and proclaimed once again the City’s intent to put a stop to it once and for all. After his fiery speech, my clients would sheepishly line up line up and all plead guilty to solicitation. Only not to the solicitation for immoral purposes statute which carried the threat of real jail time, but to solicitation like selling magazines without a permit which carried a maximum fine of only $100.00. The bail bond, lawyer’s fees, and fine were just the cost of doing business for my enterprising clients.

                  But my subspecialty really came to fruition when I represented one of the first and largest telephone sex companies. At one point my client had more telephone switching capacity than the entire Town of Mt. Pleasant phone company. The women could earn a couple bucks a minute talking dirty to men on the telephone all in the safety and privacy of their own homes. A couple bucks a minutes adds up quickly to $120.00 an hour. And, who were their customers? Surprisingly, their best customers were old men in nursing homes. Each month when their checks were deposited the women’s phone lines lit up like Chrisytmas trees. I picture them, with their hair up in curlers, wearing a frumpy house coat, doing the family ironing talking on the phone lifting up the iron to sound of escaping steam, psssssst, and saying, “Oh, baby, you’re so hot!” The wages the women earned were welcomed at home until, sooner or later, their husbands would get to feeling neglected for not getting what the women were describing on the phone. My client became a lucrative referral source of damsels in distress.

           I am proud to have represented the working women I have represented over the course of my career. They paid their fees, appreciated my work, and often had more honesty and integrity than other clients. Best of all, they helped prepare me to represent real damsels in distress later in my career when the opportunity presented itself.

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  • Oh My God – Part II

    My client who lost his legs in that motorcycle accident got that big settlement he was entitled to. He used it to buy himsaelf a used full size used car he had out fitted with hand controls and a carrier in the back to haul his new electric wheelchair. He developed amazing arm strength and would lower himself to the ground from his chair, fold it up, and store it in the carrier. He would then handwalk to the driver’s side door, open it, and pull himself in. He regained some freedom and liked to go out to the clubs, to be with people, and enjoy the music. They say people gathered around in a circle when he danced his wheelchair. Someone also said he used that settlement to to go into the drug business and was selling cocaine in the clubs. That someone was probably some hapless club goer caught dirty and told ratting out his dealer was the price of his freedom. It’s a very risky business ratting out actual drug dealers and suspect my client made a perfect patsy. But the narcs only caught him with the remnants of a cocaine eight-ball when they busted him leaving a club one night. Enough to charge him with PWID, possession with ointent to distribute, and just to be real pricks, they seized his car alleging it was used to transport contraband under the forfieture statute.

    What my client was most upset about was his car being seized, I met with the narcs and we discussed the car being undrivable by anybody other than my client and of no use to them. I proposed we swap for a car of equal value they could actually drive and asked them what kind of car they might want. Their eyes lit right up and, after they conferred about it, said they wanted a small Chevy S-10 pickup. I said that could be arranged and I arranged it. The PWID charge was reduced to possession and pled out for probation. Everybody was happy.

    Well not everybody. Almost a year later the receptionist buzzed to tell me there were SLED agents in the lobby asking to speak with me. I said send them back and waited in the hall to usher them into my office. They introduced themselves and showed their ID cards as we sat down. One agent took the lead and opened up an official looking file folder before advising me they were investigating the alleged bribery of police offiers. That got my arrention but I didn’t have the faintest idea what they were talking about. Using an old police trick, the agent removed a document from his file and, held it up reading it as if it was irrefutable proof of criminal activity. The agent then asked, “Did you represent ________________ charged with distributing drugs in Berkeley County.” That caught me by surprise but at least I now knew why they were in my office. “No,” I replied, “he was charged with PWID and pled down to possession.” The agent didn’t like that I showed no sign of anxiety I’d done anything wrong. Undaunted, he proceeded to pull out anothet document and ask, “Did you arrange to give the narcotics officers who arrested your client a Chevy pick-up truck?” Again without hesitation I replied, “Yes, I did,” but added, “My client gave it to them in exchange for them returning his automobile that was fitted with hand break and gas contols.” You could see the agent thought he was getting close to having me admit to the bribe, and he tried to nail his trap door shut by asking, “Was that the same car that was seized because my client was a drug deaker?” “No,” I shot back, “the same car that was seized because my client possessed more than a gram of coke, not because he was a dealer.” “Well, what gave you the authority to do that?” he asked incredulously. I almost laughed and replied common sense.

    Now it was my turn to start asking questions. “Are you suggesting I gave the officers a pick-up truck as a bribe?” “Er, eh, well we’re investigating to find out what happened.” “Oh, in that case, since you’re just investigating, I’ll tell you. I don’t know if that file of yours reflects it but my client lost both legs in a horrific motorcycle accident. That car they seized was specially modified with hand controls and a carrier for his wheelchair. The seizure of his car because it had been used to transpot drugs was bullshit but, even so, do you have any idea how hard it is to get a wrongfully seized car back through the system?” The looks on their faces told me they didn’t. “It would have taken months of legal wrangling and cost more than the pick-up truck was worth. It wasn’t a bribe, swapping the vehicles was the fastest and most economical way for my client to get his car back.” I didn’t have to ask for what purpose they thought I would have risked my law license to bribe the officers. They thought it was quid pro quo for getting the PWID charge reduced to possession. “If you really think I had bribe the narcs to reduce the PWID charge to possession when my client had no prior record, you must think I’m a really lousy lawyer,” I said holding my wrists out. “If you think I’m guilty of breaking the law, you’d better go ahead and arrest me. If, not, I think it’s time for you gentlemen to leave.”

    They did and I never heard from them again.

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  • HOW MUCH WOULD YOU HAVE CHARGED?

    Believe it or not, lawyers are governed by Rules of Professional Conduct. The preamble to the Rules say a lawyer, as an officer of the court, has a special responsibility for assuring everyone has access to justice. To prevent abuses the Rules vaguely say all fees must be reasonable. Reconciling these rules and deciding what’s a reasonable fee is in a given case is not as easy as it might sound. To show you what I mean I’m going to ask you how much would have charged to represent this single mother and her teenage son in this actual case I once handled.

              The teenage son suffered from a medical condition, Crohn’s disease. The  chronic inflammation of his bowels caused inevitable accidents involving explosive diarrhea, embarrassment, and social shunning at school. Despite his medical condition he was a really good kid, got good grades, had good attendence, and never got into trouble at school. His mother was so proud of him she wanted to buy him something special for his seventeenth birthday. She scrimped and saved to buy him a car. She searched high and low and found an unbelievable deal on a 1986 Oldsmobile Cutlass Supreme. Jet black with tinted windows, chrome wheels, and an amazing sound system. It took every penny she’d scraped together to buy the car but the look on her son’s face when she gave it to him made it all worthwhile. Or so she thought.

                What the mother didn’t know was the reason she got such a good deal on the car was because it used to be owned by a drug dealer who sold it on the cheap because it attracted too much of the wrong kind of attention, attention of the law enforcement variety. The poor son was repeatedly pulled over for bogus traffic offenses; failure to use his blinker, driving left of center on an unmarked road, and, my favorite, a blown license tag light. All flimsy pretenses to search for drugs. The boy didn’t do drugs and was let go until one zealot police officer decided to vacuum the floorboards and claimed he found marijuana residue. He arrested her son and, since it was late in the aftertnoon, it was too late for the afternoon bond court and he would have to spend the night in jail. The boy’s mother frantically called me after he was already lodged into the county jail.

    I met with his mother that evening and agreed to go to his bond hearing the next morning. We waited with the other mothers and fathers, wives and girlfriends, friends and lawyers waiting for their cases to be called. I tried to talk to the cop, but he was everybit bit a jerk in the courtroom as he was on the side of the road. After listening to my explanation the magistrate set a PR bond. Between meeting with the mother initially, driving to and from the bond hearing court, waiting for the hearing, and the actual five-minute hearing, I spent 3.25 hours representing the mother and her son for his bond hearing.

    His next appearance was in the Municipal Court where, to save money,
    I told them to appear without me. I knew the mother and son would wait in a courtroom packed with other people just to enter a not guilty plea and request a jury trial on my instructions. The not guilty plea would transfer his case to the pre-trial conference docket where a prosecutor you could actually discuss the case with would be in attendance.  When that time came the mother, son, and I waited in another packed courtroom waiting for our case to be called. When it was our turn, I told the prosecutor what had happened and gave him a copy of the title to the car proving it had been recently purchased. The prosecutor bluntly asked the cop how he planned on proving the boy even knew about the residue, never mind possessed it? When the cop didn’t have an answer, the prosecutor told everyone he was dismissing the case. Driving to and from the municipal court, waiting, and the ten-minute conference with the prosecutor took another 2.75 hours. All totaled, I spent a total of six hours on this bogus case that never should have been brought in the first place.

    So, my question to you is how much do you think I should have charged the boy’s mother as a reasonable fee?  You can think what you want about me and criminal defense lawyers generally, but as I’ve outlined it took six hours of my time to get his case dismissed. Admittedly, a doorknob could have gotten it dismissed eventually, but dismissal is as good a result as any lawyer could have gotten and, if I do say so myself, I wasn’t just any lawyer.

    Not fair, you say, I should disclose how much I charged the mother. I will tell you I personally sidestepped the ethical dilemma by charging the mother exactly what she brought with her to our initial meeting. I never had the heart to ask for another penny. I’m not going to say how much that was, but I’d wager it was a good bit more than if you charged your regular hourly rate of pay for six hours. I know it was a lot less than my regular rate. Still, it left a bad taste in my mouth charging anything to this struggling mother who only wanted to give her remarkable son a birthday present for making her so proud. Hopefully my advice, given gratis, to sell the car helped save them similar grief in the future.

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  • THE FIRST BAPTIST CHURCH OF JAMES ISLAND

           In 1927, when Irving Steinberg opened his law office at 61 Broad Street, gentile Charlestonians wouldn’t be caught dead hiring a Jewish lawyer. So, Mr. Steinberg built his practice representing the people gentile lawyers of the day wouldn’t represent. Later in his career, in the 1960’s, Mr. Steinberg earned a place on what was called The Broad Street Ring when he helped organize the sea island black churches as a formidable political force during the struggles for civil rights. Churches would often turn to Mr. Steinberg for legal representation when they needed help. When a former pastor sued the First Baptist Church of James Island for wrongful termination, they sought Mr. Steinberg’s help and he assigned the case to me as the newest associate in his  firm.

            I quickly learned how historically significant the First Baptist Church of James Island is. It was founded in 1869 following the Civil War by emancipated people who needed a place to worship. They initially met in the Ferguson family home on what is now the corner of Camp and Dills Bluff Roads but, over the years, the congregation grew and built a permanent church on the site where it has worshipped ever since. It was over discrepancies in the church building fund that the pastor was terminated by the congregation.

    I never envisioned myself representing a church so, if they were offered, I didn’t take any classes on ecclesiastical law in law school. Ecclesiastical law is the body of laws, rules, and regulations created and enforced by religious institutions to govern their internal affairs. Straightforward sounding enough but in Watson v. Jones decided in 1871 the United States Supreme Court ruled that matters of church discipline, faith, and internal organization are beyond the purview of civil courts. Courts can only intervene in church disputes if they can be resolved using “neutral principles of law” not requiring an interpretation of religious doctrine or practice.

            The pastor claimed he was wrongfully terminated in  violation the church’s by-laws requiring a two-thirds vote of the congregation to dismiss a pastor. I met with the trustees of the church, and they gave me a copy of the church’s by-laws which I noticed they had been recently enacted. The trustees said they were  adopted at the urging of the terminated pastor. The trustees further complained that the by-laws were not in accordance with a basic tenet of  a Baptist Church that a pastor always serves at the pleasure of a majority of the congregation.

            I do not profess to be a scholar on the subject by I learned the Baptist faith was an outgrowth of the 16th-century Protestant Reformation which was both a religious and a cultural movement that believed  salvation could be found through reading the Bible. What a truly radical idea, that ordinary people didn’t need the Catholic Pope in Rome to tell them what to believe. I learned before the Reformation there had been an almost two-hundred-year struggle to keep the Bible from being translated from Latin into the common languages. When I say struggle, I truly mean truly a life and death struggle. It was in 1300’s that Oxford Professor John Wyclif and fellow scholars first tried to translate the bible into English and only his natural death that saved him from being burned alive with his collaborators. His blasphemy was so hated by the Church, poor John Wyclifs’s remains were dug up, burned, and thrown into the River Swift forty years later.

    Baptists can be traced back to dissenters from the Church of England who rejected infant baptism and believed only professing believers should be baptized. The early congregations were forced into exile to Amsterdam.  When they returned to England they did so with the firm belief that church and state should be kept separate. I found it remarkable how closely aligned the Prodestant Reformation and democracy were. Our Revolution was founded on the similar revolutionary idea principle ordinary people could choose their own government too. But, I realized I needed to stay away from matters of religious doctrine or practice and decided it would be best to simply rewrite the church’s by-lays, have the congregation adopt new by-laws, and reaffirm its termination of the pastor so that the case could be decided on ordinary principles of contract law.

    I gathered up by-laws from other Baptist churches, including my in-laws Baptist Church in Aiken. I redrafted the by-laws to reflect the correct tenets of the Baptist faith and had the trustees formally call a meeting of the congregation to discuss the new by-laws. Business meetings were held on Wednesday nights and I was surprised at the turnout for ours. Almost as surprised as I was with the number of questions I was asked about why new by-laws were needed. I began to suspect some of the terminated pastor’s allies were purposefully trying to disrupt the meeting but we somehow managed to get through it about eleven o’clock that night. A second meeting was formally noticed and not only were the new by-laws were adopted, but the termination of the previous preacher was affirmed by a majority of the attending congregation.

    About a year later I was invited by the trustees to attend the dedication of the remodeled church on a Saturday two weeks coming. Never having attended a church dedication before, I thought it’d be no problem, I’ll be in and out in an our or two leaving plenty of time to enjoy my weekend. Boy was I in for an education. I was warmly greeted by the trustees and invited to sit in one of the high back, pointed chairs on the chancel where I felt more than a little conspicupius in front of the packed church. I truly had a front row seat to the procession of invited preachers who gave one inspirational sermon after another. I remember one pastor in particular, he had to be in close to ninety years old and while he looked frail, he gave one of the most rousing and animated sermons of the day. He spoke in a cadence all his own. A stop and go cadence he not only preached but danced to bringing the packed church to its feet shaking the rebuilt church to it’s very foundations. Between sermons joyous hymns of praise were sung by invited guest singers and members of the church choir whose voices soared to the vaulted ceiling of the new church. I learned what a joyous noise truly meant and wondered to myself why my own church had been so quiet all my years. The hours passed until finally, around 2:30 or 3 that afternoon, I thought things might finally be wrapping up and I could go home but that’s when the Masons showed up in full regalia, wearing their Masonic aprons, gloves, sashes, collars, and medallions and began the ceremony to lay the new cornerstone of the church. It was at least another hour before I was finally able to leave.

            Mr. Steinberg got a hearty laugh, and I mean hearty as he loved my story about the dedication, but he reminded me the pastor’s suit was still pending and there was more work to be done. His lawsuit finally came up on the docket for trial. I informed the trustee and asked if any members of the congregation could attend the trial in a show of support. There were two courtrooms in the old courthouse on Broad Street. Civil trials were usually held in the smaller courtroom on the second floor with the judge’s chambers located off to the left of the courtroom. Judge Richard Fields was assigned to preside over the case. He entered the courtroom through his private entrance and began walking toward the judge’s bench in his usual fashion. Judge Field’s had a way of walking quickly, bent forward as if racing toward a finish line. He made it about half-way to the bench when he noticed the ladies of the First Baptist Church of James Island taking up the first three rows of benches in the small courtroom. The ladies were all dressed in their Sunday, starched white church dresses and hats. Upon seeing them out of the corner of his eye, Judge Field’s performed a perfect pirouette and headed back to his chambers from which he sent word he wanted to see the pastor, just the pastor and not the lawyers, in his chambers.

    I don’t know what they talked about but after about thirty minutes we were told the case was being dismissed. I may not have known much about ecclesiastical law, or the propriety of Judge Fields meeting alone with the opposing party, but I do know it wasn’t my mastery of ecclesiastical law, it was the ladies of the First Baptist Church of James Island sitting on the front benches that won the case.

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  • DORTHY’S RUBY RED SLIPPERS

    It’s not every day you get a call from the sheriff but I got one from Sheriff Al Cannon asking me to help a former police officer abandoned by his lawyer the Friday before he was scheduled to begin a wrongful termination trial in Federal Court. It’s hard saying no to the sheriff, so I agreed to see what I could do.

            I spoke with the former police officer and learned his lawyer had demanded a ridiculous upfront payment for the trial and, when he couldn’t afford it, the lawyer filed a motion to be relieved as his lawyer. A hearing on the motion was scheduled to be heard that Friday afternoon. I asked him what the case was about and he told me he had been fired by the Charleston Police Department for allegedly associating with a known criminal, but the real reason he was fired was because he refused to lie about drugs having been planted on somebody during a search. Well, now, an honest  cop being fired for refusing to lie about planted drugs sounded right up my alley. You’d think I’d have known there was more to the story than what I was being told.

            I had never personally appeared before Judge Houck before and entered my appearance at the beginning of the hearing: J. Kevin Holmes, appearing on behalf of the Plaintiff for the purpose of opposing his current counsel’s motion to be relieved and, if that motion is granted, to move for a continuance so I can prepare to represent him at trial. I don’t think Judge Houck even looked up or asked me to bend over before ruling from the bench, “The motion to be relieved is granted. The motion for a continuance is denied. We’ll see you for trial first thing Monday morning counselor.” I was dumbstruck, which is probably a good thing because if I’d have been to talk, I’d probably been held in contempt for uttering a string of profanities the likes of which has never been heard in a courtroom. 

            The enormity of what I’d gotten myself in was just beginning to seep in as I was walking down the courthouse steps and  ran into lawyer Bob Haley coming up the other way. I must have looked shellshocked because Bob asked out of genuine concern if I was okay. Still flustered I blurted it out what had just happened as best I could and to my utter amazement, Bob offered to jump right onto my flaming dirigible and help with the trial.

            Bob and I had tried the Columbian dentist case against each other and were both experienced trial attorneys. For those of you who may not be, getting a case ready for trial under normal circumstances is an enormous undertaking. You have to put together your trial notebook starting with jury selection. That requires going over the jury list and the jurors answers to a questionnaire trying to divine who to exclude and who to seat.  You have to prepare your pretrial brief giving your version of the facts, identifying legal issues anticipated to arise, who your witnesses will be, and what exhibits you intend to introduce. You have to research and prepare any pretrial motions you’ll want to file. Research and write out the jury instruction you’ll want the judge to charge. Make outlines of the testimony you’ll expect to elicit from each witness. Meet with and prepare your witnesses for their trial testimony. Copy and mark all of the trial exhibits. And, write out your opening statement for the jury. To do all this over the course of one weekend in a case you knew nothing about to start with would take nothing short of a miracle.

            Bob and I camped out in my firm’s library and got started reviewing the file the client’s former lawyer had turned over to us. Needless to say, he hadn’t done any of things I just listed to get ready for trial. Remember when I said I should have known there was more to the story than what I had been told? Well, when we read through the file it didn’t take long for Bob and I to discover our client had settled his wrongful termination suit against the City. That’s right, signed a release and settled it. When we confronted him with this rather inconvenient fact, he sheepishly said he only accepted the settlement because he was allowed to resign with no finding misconduct on his part and he’d been offered a job as a deputy with the Sheriff’s Office but that the City had breached the agreement by recommending to the South Carolina Criminal Justice Academy they revoke his certificate needed to be a law enforcement officer in South Carolina. This explained the Sheriff’s interest in the case, but you don’t have to be a legal scholar to figure out its pretty damned hard to sue for wrongful termination from a job you voluntarily resigned from.

    Now we realized the case we’d signed up for wouldn’t be about an honest cop fired for refusing to lie about planted drugs, it would be about whether the City fraudulently concealed their intent to recommend his license be suspended to induce the settlement and release. Deepening the legal quicksand we found ourselves in up to our eyeballs, the client’s prior worthless lawyer hadn’t plead fraud in the inducement nor had he conducted any discovery how the City’s recommendation our client’s license be revoked came about.

            Bob and I were left grasping for nonexistent straws when something extraordinary happened. Opposing counsel, Carol Ervin, a very seasoned trial attorney called us on the phone. Carol may have been small in stature, but any lawyer dumb enough to underestimate her courtroom prowess would be making huge mistake. She specialized in employment law and was tough as nails. But late that Friday afternoon she called us to let us know she thought Judge Houck’s denial of a continuance was grossly unfair. To the extent ethically possible, she offered to do anything she could to help  bring us up to speed for the trial. Truth is Bob and I already knew there wasn’t much she or anybody was going to be able to do to help us out of the impossible situation we found ourselves in but somehow Carol reaching out to us lifted our spirits and gave us the fortitude to hunker down and do our level best as lawyers to turn the chicken shit we’d been handed into chicken salad.  

            Bob and I spent Friday night hitting the library books looking for cases in which a settlement agreements had been set aside. Each time we found something encouraging further research shot us down. We crashed and burned so many different ways it was probably around two a.m. that Bob and I became giddy and started laughing. Bob came up with the notion we should send Carol copies of the cases we’d found pretending they’d save our asses but mostly just so she’d knew we were working ungodly hours while she was sleeping soundly. Somewhere around three thirty that morning, for reasons vaguely related to the unreal situation we found ourselves in and Dorothy saying, “Toto, I’ve a feeling we’re not in Kansas anymore,” Carol became Dorothy of the Wizard of Oz. I think it was Bob who quoted Dorothy as saying, “Lions, and tigers, and bears, oh my!” when our research ran into another dead end.

            Carol picked up on  our silliness and called us on Saturday. She wasn’t fooled for a second by our caselaw but was impressed by how much fun Bob and I were having. She liked being compared to Dorthy and, I suspect, started to think of us as the Scarecrow and Lion knowing we both already had heart and courage but were somewhat lacking in brains. It was the first of many phone calls and much laughter we shared over that weekend.

            Monday morning came and against all odds Bob and I were ready as anybody could be for trial. I think even Judge Houck felt a little guilty for his Friday ruling and couldn’t help but be impressed by all the hard work Bob and I had put in over the weekend. Of course, that didn’t stop him from cutting us off at the knees every chance he got and directing a verdict in favor of the City at the close of our case. We were exhausted but held our heads high leaving the courthouse that afternoon knowing we’d done our best to help an honest cop whose worthless lawyer had him stranded on the eve of trial.

            We didn’t win the case but our client made out okay. He became a private investigator for one of South Carolina’s premier criminal defense attorneys who regularly stuck it to the City Police Department that had treated him so unfairly. I don’t know for certain but I’d wager he made twice as much as a private investigator than he ever would have made as a Sheriff’s deputy. And me, who had more fun practicing law than almost any lawyer I ever knew, never had more fun winning a case with another lawyer than I had losing the case with Bob. If there’s a higher compliment one trial lawyer can pay another, I don’t know what it is. And we made a friend of Carol Ervin. Bob and I went down to Bob Ellis shoe store on King Street and bought her a pair of woman’s shoes we painstakingly glued ruby red sequins to that we gave to her as present to remember our trial by.

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  • OH, MY GOD ….

            He loved the feeling of freedom riding his Harley-Davidson 998cc XLS Roadster on the back roads of Berkeley County until a logging truck pulled out in front of him. All he could do was lay his bike down and ride on top of it hoping it would stop before colliding into the truck. And it almost did, his motorcycle was rapidly slowing when  something caught sending the bike and him tumbling down the pavement. He was paralyzed with a broken back and badly torn up legs. I had gone to see him in the hospital to discuss representing him in a lawsuit against the trucking company but he was heavily medicated and not in any condition to discuss legal matters. We were just talking when his doctor came into the room.

            The look on his doctor’s face said he didn’t have good news. He didn’t pay me any attentiom when he said there was no easy way to say what he had to say. That they’d done everything they could to restore the blood flow to his legs but gangrene had already begun to set in. The doctor lifted the sbed heet and one of his bandages pointing out the blackening tissueon his paralyzed leg. Unless they amputated his doctor said it would spread to his blood and most assuredly kill him. I could see the news was devastating and was amazed when my client found the courage to calmly ask questions that needed to be asked. Where would they amputate his legs? Above the knees the doctor told him, gently reminding him his legs were already paralyzed. When did they want to do the operation? As soon as possible, later that same day, if he gave his consent. Well, I really don’t have a choice, do I? No the doctor shaking his head. When my client gave his consent I could see the relief spread across the doctor’s face. The doctor nodded his head again saying he would make the arrangements, turned, and left the room.

    I followed him out into the hall and called after him. Doctor, I just wanted to say how much I appreciate you being so honest and caring delivering such gut wrenching news. Thank you, he replied. And who are you the doctor asked? I’m Kevin Holmes, his lawyer. The doctor turned as white as the screen upon which this is printed before gasping, “Oh my God, I thought you were his preacher!”     

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  • MY FAVORITE MURDER CASE

    I majored in business administration as an undergraduate and assumed I’d go to work for my father’s company after law school. Imagine my surprise after graduation when I found myself riding around South Carolina with lawyer Jack B. Swerling, Mr. Murder himself, trying murder cases. We rode around in his metallic green Lincoln Continental automobile, the largest model they ever made, with front seats the size of sofas that were covered in plush green velour fabric. We listened to the King, Elvis Prtessley, on Jack’s 8 track cassette player. It was the beginning of a completely unexpected forty-six-year career as a trial lawyer that included thirty-four murder cases. Each case was its own story but the one I want to write about is my favorite.

    I often wondered how cases found their way to my door. How a mother from New York City a thousand miles away would call the number to my office. One day the receptionist buzzed my extension saying, “there’s was a woman on the phone from New York City whose daughter  is in jail charged with murder.” I quickly picked up and spoke to the mother on the phone to find out about the case but just as quickly learned the mother didn’t know anything about what happened, other than  she was certain her daughter’s innocence.

    The only way I’d be able to find out anything about the case would be to drive to jail and speak to the daughter personally. Normally, that would require an upfront fee which I hadn’t been paid but, with murder cases being as rare as they are, I decided to take a chance and go see her.   

    Working your way into the jail to visit an inmate requires patience on a glacial scale. You have to wait in line to speak to the visibly bored guard manning the desk. When you finally reach the front of the line, you have to show the guard your picture ID and bar card for his scrutiny like you’re a teenager trying to buy a six pack of beer. He’ll look up when satisfied with your ID and wait for you to tell him the name of the inmate you want to see. Then he’ll pretend not to hear you until you spell your client’s name out for him as he hunts and pecks the inmate’s name into the keyboard of a computer with an antiquated cathode ray terminal with a flashing green cursor. If you’re lucky, your client’s name will pop up on his screen and the guard will tell you to sign the visitors log as he lazily waves you through to the attorney visitation area which operates on a first come, first served basis, so you hope there’s an open booth or else you’ll have to stand around and wait for another lawyer to finish talking to their client. When you’re lucky enough to get a booth, you park yourself in it and wait for the guards to bring your client down from the cell blocks.

    And you wait, and wait, because transporting inmates for visitation is about the last thing on the list of things prison guards do. It comes after mealtime, medical call, shift change, and quelling any disturbance on the cell block. There’s no telling how long it might take for your client to arrive on the other side of the plate glass window in the visitation booth. While you wait you notice the smell of hopelessness and begin to worry it will permanently permeate your hair and clothing. About the time you’ve given up all hope of ever feeling clean again, the guards shuffle your dazed client into the room on the other side of the plate glass as you point and wait for them to pick up the plastic telephone so you can speak to them.

    My first impression of the daughter I was visiting was of a young woman who’d been too scared to sleep, change clothes,  or bath for days. Her orange jump suit was crumpled and her hair was as wild as the look in her eyes. I verified I was speaking to the right person and told her I was a lawyer her mother asked to come see her. While that seemed to calm her some, I could tell she remained suspicious of me.

    First things first. I gave her the talk every lawyer gives prospective clients when visiting them for the first time in jail,  “don’t talk to the police without me being present. I don’t care what threats or promises they make to try and get you to talk to them, I can’t protect you, if I’m not there. Don’t give details about your case to a cell mate because, armed with details, snitches can manufacture jailhouse confessions for you and barter them for leniency in their own cases, don’t .” “Don’t sign anything without reading it and, if, after you read it, if you’re not 100% sure what it says or what it’s for, don’t sign it, oh, and don’t forget, don’t talk about your case on the phone because all calls in and out of the jail are recorded.”

    After my speech, I asked if she had any paperwork from when she was arrested. She did, so I asked her to hold the papers up to the glass so I could read them and make notes while we talked. The warrant charged her with murder punishable in South Carolina punishable in one of three ways: the death penalty, life without the possibility of parole, or 30 years in prison of which you have to serve 85%, or 25.5 years, before being eligible for parole. It’s a lawyer’s duty to advise a client of nature and elements of the offense charged and possible punishment but doing so only increased this frightened young woman’s anxiety.

    Based on the warrant and what she was telling me; I began to piece together what had happened. She stabbed the alleged victim, a young man, to death. The warrant said she stabbed him 28 times, but she couldn’t remember the number. She didn’t know the alleged victim having just met him at a club about an hour before she killed him. She went to the club that night with her boyfriend, but they got into a fight, and he drove off leaving her stranded. The young man victim saw she was upset and kindly asked if she was alright. He seemed like a nice guy, so she accepted his offer to give her a ride home. He drove a nice car, so she didn’t object when he said he just wanted to run by his house on the way. He lived in a nice house, so she accepted when he invited her inside. She didn’t realize the mistake she’d made until he closed the door behind her, grabbed her by her arm, twisted it behind her back and pushed her face first into the wall as he threatened to hurt her really bad if she cried out or resisted. After she nodded accent, he ushered her down the hall to a bedroom where he threw her on a bed, pulled tore her clothes off, and raped her. She was so shocked and scared, she didn’t resist. He finally got off and left her lying terrified on the bed.

    Hoping to distract him before he raped her again, she told him she had two vodka mini bottles in her purse laying on the floor and suggested they have a drink. He picked her purse up and, sure enough, found the two mini bottles. He took both bottles and tossed the purse onto the bed as he twisted off the top of the first bottle and chugged it in one pull. He had no intention of sharing the other bottle and, as he was busy twisting the top off it, he didn’t notice when she reached for her purse and pulled a butterfly knife out of it. A butterfly knife, for those who may be unfamiliar with one, hides its stiletto blade between its two ornate metal handles. You flip the knife in a back-and-forth motion to open it and expose the blade.

    Once the knife was opened, she didn’t hesitate to use it. She stabbed him furiously until he stopped resisting. She ran from the room, back down the hall, and out his front door, then ran down the street in front of his house stark naked, covered in his blood, still holding the knife, and screaming for somebody to call the police.

    Somebody did call the police but, when they arrived and found the victim’s bloody body in the bloody bedroom, they couldn’t wrap their minds around the 28 stab wounds. Most of the stab wounds were on the young man’s hands and forearms which the detective said made them defensive wounds. I’m no forensic expert, but I had no reason to doubt that’s exactly what they were. The bloody crime scene made the detective ignore her story about what happened and charge her with murder.

    And here she was locked up in the filthy county jail, scared to death, telling me, a stranger, her story through a half inch of  glass over a cheap plastic telephone. As rare as murder cases are, a person accused of murder actually being innocent is a whole higher level of scarcity. I could hardly believe my ears as I found myself listening to a young woman charged with murder who could actually be innocent. A real live, breathing unicorn.

    In South Carolina, a person charged with murder has to be brought before a Circuit Court judge to set bail, usually just a formality as bail bonds are rarely given in murder cases. I gathered all the information I needed to file a bond motion and concluded my interview. Still, jaded by my years as a criminal defense lawyer, I couldn’t help but think there had to be more to this story than what she told me. I was astonished when I was able to get a copy of the police incident report, and it verified virtually everything she told me.  

    As fate would have it, Judge Casey Manning was presiding in General Session court that week. I had no idea how he would rule on a bond motion but had appeared before him many times and was confident he wouldn’t just rubber stamp the prosecution’s opposition to bail. I didn’t wait for a fee from the young woman’s mother in New York and filed my notice of appearance and bond motion the next morning. Judge Manning didn’t wait either and set a hearing for later that week.

    Not wanting my client to appear in court looking the way she looked in the jail when I interviewed her, I decided to stop by Gwynn’s of Mt. Pleasant department store where a friend worked to get her to help me pick out a simple dress for my client  to wear for her bail hearing. Jailers don’t have to let inmates wear street clothes for ahearing before a judge based on the legal fiction judges aren’t human beings and won’t be prejudiced when an inmate is brought before them in an orange jump suit, shackles, and rubber sandals. So now not only hadn’t I been paid, now I was out of pocket the cost of the dress on a gamble the guards would let her wear it.

    While its true guards can become hardened and sticklers for the jailhouse rules, it is also true they can sometimes surprise you with simple human kindness. My gamble paid off and the lady guards not only helped my client put on the dress but to fix her hair before bringing her out into the courtroom for her bond hearing.

    A silence fell over the courtroom as my client was led in through the door from the holding cells. All eyes were on her as she walked to the podium in front of the judge where I stood waiting. There was something about her. Something dignified in the way she held her head up as she walked, in the way she was smiling. She wasn’t beautiful but she was captivating. Her smile spread to everyone in the courtroom including Judge Manning.

    Judge Manning ran through the preliminaries asking her name, age, how far she got in school, had she ever been treated for any mental health problems, and was she under the influence of any drugs or alcohol before turning to the offense charged. He asked her if she understood she was charged with murder and what the possible punishment was. Satisfied she was competent and understood the proceedings, Judge Manning turned to the prosecution to tell him about the facts.

    I watched as the young duty prosecutor hastily read the warrant and incident report to put together reasons why this young woman needed to remain in custody. He emphasized the seriousness of the offense, the 28 stab wounds, and that she had no family ties to the community as pretty solid reasons to deny bail. I was ready when Judge Manning turned to me and asked if there was anything I’d like to add. I told him the whole story in as much detail as he would allow. I quoted from the police report verbatim about her running down the street calling for someone to call the police for emphasis. As I spoke, I noticed my client and Judge Manning’s eyes were locked on each other. When I exhausted everything I could think to say, it was Judge Manning turn to rule on the bond motion.

    My heart sank when he announced he was setting her bond at $50,000.00, then soared back up again as he said the bond would be an unsecured, personal recognizance bond. A PR bond in a murder case is unheard of, but to be honest, this never was a murder case and Judge Manning saw that right away.

    My favorite murder case would never again see the inside of a courtroom. It would never generate a line of print in the local newspaper, not so much as a sound bite on the evening news. On closer examination the Solicitor dismissed the case with little prodding from me. After the case was dismissed, I never saw or heard from my client again. In fact, my memory of her faded as the months passed until one day, it had to be a year and half later, there was a handwritten envelope in my morning mail from New York City. Inside that envelope was a check for $2,500.00 and a note from the client’s mother thanking me for saving her baby girl’s life.

    Needless to say, $2,500.00 is a pittance for representation on a murder charge, but I knew it was probably more money than the poor mother could afford. I was made far richer by this one fee than any other fee I ever received. I knew it wasn’t my courtroom prowess or my astute legal arguments that set the young woman free, but I took her case without a thought of the fee I would earn or the publicity I would receive. It was a reaffirmation of everything I went to law school for.

    It has been a long and unexpected career as a criminal defense lawyer. What I’ve learned is that lawyers who think being a lawyer is a ticket to fortune or fame will never know the far more meaningful reward that comes from helping a deserving client without thought of either.

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  • MY FIRST MURDER CASE

    A young man with a wife and infant baby joined the Army when he couldn’t find decent work withy benefits in his hometown. He was stationed at Fort Jackson in Columbia, South Carolina, to receive his basic training. They planned was his wife and baby to live with his parents until he finished boot camp, but his wife unexpectedly got pregnant with their second child,prolonging their separation. After boot camp the soldier recieved orders for AIT, advanced individual training, at Ft. Jackson to become an MP.  After the birth of their second child, he found an off-base apartment so his wife and two boys could join him.

    It was a struggle making ends meet on his meager Army pay but struggle they did looking forward to a better future. At least his family had TriCare medical coverage so his family could receive regular medical care. They were poor but happy and healthy. Little could they imagine just how fragile their world would turn out to be.

    Several months after the family reunited, the two-year-old caught a bad upper respiratory infection. About the time he was getting over it, he gave it to his mother and baby brother who was just shy of six months old. One morning, sick as a dog herself and exhausted after feeding the two-year-old breakfast, the mother fell asleep on the sofa in the living room with the baby cradled in her arms. The next thing she knew, she awoke suddenly with the two-year-old standing at the other end of the sofa and her baby lying on the floor between the sofa and coffee table. She jumped up and snatched her baby off the floor as she realized he wasn’t breathing. She ran to the phone in the kitchen and dialed 911 for help. When the operator told her to stay on the line, she dropped the phone but could still be heard in the background frantically trying to revive her baby. Tragically, it was too late .

    An examination revealed the baby had a fractured skull and subdural hematoma which the doctor concluded could not have been caused by falling off the couch. The mother still in shock was arrested and charged with homicide by child abuse. A DSS caseworker, concerned the father couldn’t care for the older child by himself, convinced a police officer to take him into emergency protective custody triggering a South Carolina law requiring an emergency removal hearing before a Family Court judge.

    The serviceman husband didn’t have enough money to bail his wife out of jail, never mind enough money to retain a partner in the law firm where I was working to represent his wife on the murder charge. All the father could scrape together was enough to hire me, the newest associate in the firm, to represent him for the Family Court removal hearing. The father’s parents, where the mother and the children had lived before moving to South Carolina, were already driving to South Carolina to take custody of their grandson. I thought that would resolve the need for a hearing but the DSS attorney informed me DSS policy prevented her from agreeing to an out of state placement without a complete home study investigation. The best she could offer was, if the mother and father would consent to a finding of probable cause to keep the surviving child in DSS custody, DSS would consider the grandparents for temporary and permanent placement.

    Neither the husband nor mother would agree they had done anything to harm or endanger either child and I figured DSS would have to consider placement with the grandparents no matter what happened at the hearing, so we rejected the plea offer. That’s how I found myself representing the family at the removal hearing. Little did I know it was the beginning of my first murder case.

    At the hearing the DSS attorney called the doctor who diagnosed child abuse as her first witness thinking to make short shrift of the hearing. His credentials were impressive. He was a distinguished looking doctor in his mid-to-late forties who had been trained in pediatrics at our Medical University of South Carolina. The Judge readily qualified him as an expert witness entitling him to give opinion testimony. He testified x-rays revealed the infant had a minimally displaced fracture on the back of his skull but he went on to explain, it wasn’t the fracture, it was the increased intracranial pressure caused by a subdural hematoma or bleeding on the brain, that caused the infant’s death. When asked if a fall from the sofa could have caused the baby’s injuries, the doctor emphatically said no and launched into a long speech about how infant’s skulls remain pliable after birth when they have to have squeeze through the birth canal and that the medical literature has established the amount of force generated by falling off a couch is insufficient to cause a fracture like the one found in this case.  Did he have an opinion based on a reasonable degree of medical certainty what caused the infant’s injuries in this case? Why, yes he did and said it was most probably child abuse as if it was an irrefutable fact. Thank you, doctor, please answer any questions this young lawyer in way over his head may have.

    I timidly asked the doctor, so it’s your opinion there wouldn’t be enough physical force generated from falling off the sofa to have caused this infant’s  fractured skull? That’s correct, he answered confidently, before gratuitously adding, a standing baby’s head is higher off the ground than a sofa and they fall all the time without fracturing their skulls as if to say case closed. But something didn’t sit right with me, so I asked, what if the baby was standing up on the couch, that would put his head, what four or five feet off the floor, wouldn’t that be sufficient to cause a fractured skull. No, the doctor again said again without hesitation, there has been no description in the medical literature of children fracturing their skullds falling off furniture period, end of discussion. I detected condescension in his voice like I wasn’t smart enough to understand simple physics, so I pressed on. What if he struck the back of his head on the edge of the coffee table as he fell, couldn’t that concentrate enough force to have caused the fracture? The doctor had obviously been down this road before and dismissed my question with a wave of his hand explaining yes that could happen, but added if that were the case I would have found localized tissue damage where the head struck the table edge and I didn’t find any of that in this case. Okay, but what if his older two-year-older brother pushed him forcibly backwards off the couch onto the hard floor, could that cause enough force to cause the fracture and hematoma? For the first time I noticed the doctor hesitate, thinking hard whether he had ever read any medical articles addressing such a scenario. Deciding he hadn’t, he apparently felt secure enough to express his unsupported opinion on the subject. No, in my opinion that still wouldn’t be enough force to cause the injuries I observed. Doctor, I noticed you didn’t say anything about the medical literature supporting your opinion, do you know of any articles you can refer us to to support your opinion that being pushed aggressively by an older sibling off a sofa couldn’t be sufficient? Not off the top of my head, counselor, he said slightly miffed, my opinion is based on my education and training in pediatrics, and my years of treating thousands of abused babies hoping that would be the end of it. But somehow his answer wasn’t as convincing as his earlier testimony. I could sense his façade of infallibility weakening and him beginninng to worry he was skating on thin ice. So I pressed on, trying as best I could, to reenact the scene in the family’s apartment that morning with my own body movements. What if the baby’s mother, sick herself with the flu, exhausted, and disoriented having just woken up on the couch to find her baby lying on the floor. She jumps and grabs her baby panicking when she realizes he’s not breathing. She runs to the kitchen and frantically calls 911. When the operator says to stay on the phone, she drops the phone but can still be heard forcibly placing her baby on a hard kitchen floor as she tried to revive him. Do you think that could have caused the baby’s fractured skull? The doctor to his credit thought carefully before answering and suddenly he wasn’t quite so sure of himself. And neither was the judge when the doctor finally admitted reluctantly that was possible.

    The DSS attorney still wasn’t oveerly concerned because the burden of proof in a Family Court removal hearing is probable cause, not proof beyond a reasonable doubt like in a criminal case. She called the DSS case worker to testify. Her opinions were two-fold, first, based on the medical testimony, she had reason to believe the younger child died as a result of child abuse and, second, the active-duty father was unable to care for the older child by himself. When it was my turn to question the caseworker, I asked her where the older child lived for the first year and a half of his life. She admitted he lived with his grandparents, the father’s parents. And, when the baby was born, where were he and his mother living? Again, she admitted with the grandparents. And when the children moved here was the family covered by TriCare health insurance? Yes. Did they receive regular medical checkups? Yes. And did any of those checkups report any signs of child abuse ever having been suffered by either child? Er, no. And the reason you told me the grandparents couldn’t take custody of the boy again, was because DSS policy prohibits out of state placements without a full investigation, isn’t that right? Yes, that is correct. So, is it your testimony it would be in the child’s best interest to be traumatized further by being placed with strangers in foster care while DSS investigates to determine what it already knows to be true, that his willing and able grandparents can provide a safe home? No, er, yes, that’s that’s what the policy is. So, I asked, if the judge doesn’t find probable cause, and custody reverts back to his father, would DSS have any objection if he consented to his parents taking custody of his son? She said she didn’t know but the judge did and that’s exactly what he did.

    Not only did I win the hearing, but, when the grandparents raised about half the amount of money the partner had quoted for a fee, they said they wanted to hire  me for the murder case. While this created somewhat of a stir at the firm because associates aren’t supposed to run cases out from under partners, it was also a feather in my cap I probably wasn’t ready for. The senior partner in the firm decided I could represent the mother but only under supervision. The lawyer he assigned to help me was a very experienced medical malpractice and products liability litigator. With this being my first murder case, I was glad to have all the help I could get.

    I wish I could write everything turned out with the jury finding the mother not guilty, she reunited with her family, and they all lived happily ever after but the practice of law rarely turns out like a fairy tale. More often, even on a good day, it turns out to be more of a tragedy. We didn’t have money to hire our own forensic medical witness, so I carefully constructed our defense around the doctor’s family court testimony it was possible the mother accidentally caused the skull fracture when she panicked. That is by definition reasonable doubt. And the trial was going well, with all the prosecution witnesses admitting  there was no evidence of any abuse or neglect of either child before this incident. There was no confession, no eyewitness, and no physical evidence of abuse, and the DSS caseworker and police were relying solely on the doctor’s opinion as to the cause of death. The jury was receptive to my description of the families’ struggles, the mother having panicked when her baby stopped breathing, and they appeared visibly moved as they listened to the recording of the 911 call. All that was needed was the doctor’s admission it was possible the death was accidental. This is when the more experienced medical malpractice lawyer was supposed to step in and show me how it’s done.

    And his cross examination of the doctor began masterfully. He was also in his mid-to-late forties, and every bit as distinguished looking as the doctor. His understanding of the medical terminology was so impressive before long the jury couldn’t distinguish who was the medical expert and who was the lawyer. But somewhere during the examination, the lawyer donned his medical malpractice hat and started sounding more as if he was accusing the doctor of causing the infant’s death. The more he pressed, the harder the doctor dug his heels in and the more absolute his opinions became. By the time he got to the critical question about the mother panicking, the doctor was adamant, no, that couldn’t explain the injuries he found. He could impeach the docter withbhis prior Family Court testimony but the problem was the jury liked the kindly doctor and didn’t appreciate the lawyer attacking him. I was demoralized thinking we’d lost the jury and the case.

    Fortunately, all was not lost, and the mother made a very believable and sympathetic witness. Her testimony touched some of the juror’s hearts. They acquitted her of the murder by child abuse charge but convicted her of the lesser included offense of involuntary manslaughter, causing the death of another while engaged in conduct showing a reckless disregard for the safety of others, and the judge imposed the maximum sentence of five years. I was devastated but the lawyers in the firm celebrated the “Kid’s” first victory in a murder case. I took some solace learning the mother was eligible for parole after serving one-third of her sentence. I last heard from her when she was up for parole and she told me she’d was serving her sentence as a trustee doing housekeeping at the Governor’s mansion. She was granted vparole but never reunited with her husband or son.

    They call it practicing law because you’re supposed to learn something from every trial. The lesson I learned from this trial was cross examination isn’t a blood sport. Never go after a witness aggressively unless you absolutely have to and can nail them dead to rights. Most witnesses want to do the right thing, even though they may sometimes get things wrong. Genty suggesting a witness has made a mistake can avoid alienating the jury and still leave the door open for the witness to make helpful admissions like the doctor did in the Family Court.

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  • MOTION SICKNESS?

    Having problems with motion sickness? Fight back with creative responsive motions of your own. Break the monotony, highlight absurdity, and reclaim the upper hand with levity. Always remember, Judges are human and, if you can get one to laugh, they’re less likely to rule against you.

       Motion for a Very Far Away Change of Venue

                Useful in responding to opposing counsel’s boring boilerplate discovery requests seeking useless information or when facing trial in a dead loser of a case. Trust me on this, most judges would prefer a Hawaiian vacation than your trial.

    The Plaintiff, by his undersigned attorney, respectfully moves before the Presiding Judge for a very far away change of venue, preferably to the Island of Maui. This motion will be based on the grounds this case is dreadfully boring with a zero percent chance of getting any better. Since all parties are doomed to endure the inevitable trial, it would be vastly preferable to endure it someplace pleasurable. The island of Maui is renowned for its beauty, tropical fruit drinks, and relaxing atmosphere.

    Motion to Substitute Client

              Useful when you discover that, despite the gripping merits of your case, your client lacks any semblance of commendable qualities. That, no matter how hard you try to dress them up, they manage to remain an insurmountable obstacle to a favorable verdict.

    The Plaintiff, by his undersigned attorney, respectfully moves before the Presiding Judge to substitute pretty much anybody, preferably a celebrity, for his client to prevent inevitable injustice. Counsel promises the testimony will remain unaltered. This case involves a middle-aged male permanently injured in a motor vehicle collision making George Cloney a perfect substitution.

    Motion to Exclude Prejudicial Evidence

              Limited motion useful to exclude prejudicial evidence when your case is rock solid except for a few pesky facts proving your client is a lying dirtbag. Rather than wasting time figuring out how to explain away the obvious during trial, move to exclude the offending evidence outright.

    The Defendant, by his undersigned attorney, respectfully moves before the Presiding Judge to exclude the smoking gun covered with the Defendant’s fingerprints. The Defendant does not dispute that the smoking gun may have limited relevance to the issue whether the Defendant shot the alleged victim but would show such relevance is far outweighed by the devastating prejudicial effect the admission of the smoking gun would have on the Defendant’s otherwise brilliantly constructed defense.

    Motion to Change the Facts

                More drastic motion useful when nothing short of a wholesale change of the facts will save your client’s ass. Such drastic relief requires support by the most fundamental  sounding principles of constitutional law, hornbook law, and Gilbert’s treatises.

    The Petitioner, by his undersigned attorney, respectfully moves before the Presiding Judge for an Order permitting the Petitioner to change the facts in the interest of fundamental due process. Historical traditions traced back to ancient legal societies and Roman law have bestowed upon us the revered adversarial system of justice based upon the belief that two equally skilled advocates battling it out in a courtroom is the surest way to reveal the truth. Putting aside the questionable underpinnings of the adversarial system, it remains bedrock jurisprudence. Unfortunately, the facts in the present case are so one-sided as to be destructive to the balance claimed to be fostered by the system requires drastic judicial action to remedy the fundamental unfairness of forcing counsel to trial on the facts. Attached is an addendum of preferred facts proposed by the Petitioner to rebalance the scales of justice.

                Now, let’s be serious, you’re unlikely to prevail on any of these motions but they can easily be saved on your computer and spit out when needed at little to no cost or effort, so what do you have you to lose aside from a possible Rule 11 sanction if the judge or opposing counsel lack a sense of humor.

  • BEGIN BY BEING A GOOD LISTENER

    You hear it all the time, I’ve said it myself[1], being a good trial lawyer requires you to have the ability to craft a good story. But that’s a little like telling somebody how to build an airplane by telling them how to fly one. Let me suggest you begin becoming a good storyteller by first becoming a good listener.

    I say this because I’m confident you’re never going to be William Shakespeare crafting words with form and meter into works of art. But, think about it, how do you think he came up with “ay there’s the rub…?” I looked it up and found scholars say in the 1600’s a rub was a flaw in the playing surface of a bocce game.[2] I can clearly picture in my mind the Bard overhearing someone, doubled over in his doublet with ruffs and cuffs showing, complaining about a rub in grass. It might even be true, who knows, not that it matters for our purposes. You don’t have to be the Bard, you just have to listen. [3] . Most importantly, you have to listen to your clients so you can tell their story in their own words.

    Acetylene is an explosive hydro-carbon gas manufactured for use in welding and cutting torches.[4] My client was seriously injured when an acetylene tank he was cleaning exploded blowing him through the wall of the sheet metal building where he was working. Good thing the blast bent him over or the steel beam in the wall where he was standing would have decapitated him. Blew his clothes and burned every hair on his body off leaving him standing naked against the chain link fence on the other side of the wall. Now that’s one Hell of a story and the bestv part is I didn’t have to make one word of it up. I just had to listen to what my client said. And the beauty is your word thievery doesn’t have stop with your client. His wife’s saying what she missed most since his accident was not being able to exchange sweet nothings with her husband because of the ringing in his ears. Or his brother when asked if he was in much pain following the explosion saying, “He was in shaking kind of pain like a dog thought it was gonna die!” The hair on the back of the juror’s neck stood on end. I like to think of myself as a pretty good trial lawyer, but I couldn’t have come up with describing pain that way in a million years.

    Not only aren’t you a Shakespeare, but you’re also not Steven Spielberg. Know Even great directors listen for the unexpected turn of a phrase that catches the ear. Did you know, Humphrey Bogart’s ”here’s looking at you kid” in Casablanca was an ad lib? The director chose to keep the line in the film and won Best Director in 1944.[6] If you find yourself trying to tell a client what to say instead of listening to what they are saying, know you are well on your way to your witness testifying in a monotone voice that lacks any resonance of truth.

    Now, sure, sometimes your witness may need some prodding to open up. Ask them open ended questions that don’t suggest answers[7] like what’s your biggest fear about testifying in Court? Can you tell me more about that? How did that feel? Don’t be surprised to discover some witnesses are just hopeless and don’t make the mistake of thinking you have the directorial where with all to make them stars. Look for an alternative.

    Now that you’ve listened, don’t expect the story to tell itself. Someone, and that’s you, has to take the pieces of the story you gathered by listening and make them whole. Shuffle and reshuffle the pieces to find the right order. Practice telling it over and over to iron out the wrinkles. I once heard a very smart lawyer give a seminar on practicing telling your story with an Italian opera playing in the background to add rhythm. He added, you should feel free to substitute whatever music moves you. Now you’re crafting a story.

    Always remember they call it practicing law for a reason. Like playing a musical instrument, you get better the more you practice. Never stop learning the art of trial advocacy.

    [1] I randomly insert citations to make what I write appear more scholarly.

    [2] Google. Who needs AI Chatbot to sound impressive?

    [3] When I say listen, I include reading as well. Feel free to use the Bard whenever you can. Think people don’t read Shakespeare anymore? Just say, ‘First thing we do let’s kill all the lawyers …” and see the reactionb you get. Don’t limit yourself to the classics, free free to p-lagerize any poet, songwriter, famous lawyer, or TED talk personalities you admire

    [4] Acetylene (systematic name: ethyne) is a chemical compound with the formula C 2H 2 and structure HC≡CH. Aren’t you impressed with my seemingly endless Google knowledge.?

    [5] I’m on a Google role.

    [6] His name was Michael Cortiz but I figured you wouldn’t recognize his name either.

    [7] They’re called hearsay questions.

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