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  • QUALIFYING FOR DISQUALIFICATION

          I don’t remember how I got this particular client but I think it was from first representing his girlfriend/partner in a dispute with her homeowner’s association over a condo she owned where she kept cats, hundreds of them. So many she ordered kitty litter for them in 55 gallon drums. Before becoming my new client’s girlfriend, she ran a lucrative business providing entertainment for bachelor parties. Lucrative enough she paid cash for her cat condo back before there were any restrictive covenants against running an animal shelter on the premises. Her cats were all indoor cats and well cared for, no noxious odors or loud noises emanating from the condo,  so there wasn’t much the homeowner’s association could do about. Anyway, that’s how I met my client who was a pioneer of the telephone sex industry. They’d established one of the first and largest telephone sex companies in the entire country right here in the Lowcountry.

           When I first met him he had 30 employees, conducted business in twenty-five states, and had more telephone switching capacity than the local Mount Pleasant telephone company. He took care of the IT part of the enterprise while his girlfriend/partner  took care of the girls. Their biggest customers? Men in retirement homes. Busiest time of the month? When social security checks came out. According to them most of their regular customers called more for companionship than sex. They were rolling in the loot.

           Surprisingly, they ran an extremely clean business. They got very few complaints and settled any they got amicably. Turned out there was little they needed a lawyer to do for them. Then came the call from the United States Secret Service, which investigates cyber financial crimes,  requesting an interview. I arranged a meeting in my office.

           Despite my explicit instructions to keep his mouth shut, my client became a regular chatterbox during the interview insisting he ran a completely legit business. While the agent said he didn’t dispute that, he had some questions about the company’s financial practices. My client couldn’t help himself and decided to give the agent a history lesson. Believe it not, he said, originally the phone could would add charges onto the customer’s phone bills but stopped when too many unscrupulous callers ran up exorbitant charges on other people’s bills. That’s when he turned to credit card processing which served the dual purpose of verifying age and collecting charges. To avoid antagonizing the credit card companies, he issued immediate reversals of any disputed charges. Everybody was happy until the Moral Majority began pressuring financial institutions to stop financing pornography in the early 2000’s. Before long his bank, VISA and Mastercard would no longer process his company’s credit card transactions. My client turned to local businesses to process his charges for him offering them a flat 10% cut and guarantee he’d cover any charge backs. At the time he was processing upwards of $80,000.00 a month in charges, so the handful of local merchants he was dealing with were happy to be raking in $8,000.00 a month virtually risk free. My client assured the agent no one had lost a single red cent due to his transactions.

            The agent thanked us for meeting with him and said, if what my client said was true, there was nothing the Secret Service would be interested in pursuing. We shook hands as he left but I asked my client to stay behind after the agent left. I told him my client I didn’t trust the agent and didn’t think the threat had passed. I’m not stupid and if I learned one thing over my years practicing law, its cover your ass, so after the meeting I wrote my client a letter to my client setting out the potential Federal and State laws I thought he might be violating.

           Sure enough, not long after, my client, his girlfriend/partner, and the local merchants who’d been processing charges for him were all indicted in Federal Court. His indictment as the kingpin was for some ridiculous number of counts of financial access fraud, each count carrying up to 15 years and a $250,00.00 fine, bank fraud each count carrying up to 20 years and a $250,000.00 fine, and wire fraud each count also carrying up to 20 years and a $250,000.00 fine. I added up the potential penalties and told my client, eliminating the duplicate counts, he was only facing 600 years but, not to worry, I was confident I could get that knocked down to no more than 100 years. He didn’t think I was being funny.

           This is a long way around to the disqualification part of this story, but here we are, in the preliminary stages of the case in Federal Court, appearing before the Honorable David C. Norton. Right out the blocks the U.S., I mean Useless, Attorney, filed a motion to have me disqualified from the case on the grounds I had a conflict of interest. And what was my conflict of interest? Since I hadn’t advised my client what he was doing was illegal, I’d have an incentive to throw him under the bus to conceal my own incompetence.

           My co-counsel had to restrain me from punching the Useless Attorney in the face right there in the United States District Courtroom. He calmed me down by commenting that the disqualification motion was high praise and showed how much the government respected my legal abilities. When I settled down, I produced my letter advising my client of the statutes I thought he could be violating in camera to Judge Norton and he promptly denied the government’s disqualification motion.

           I wish I could say I found some way to pull a rabbit out of the hat to free my client but that’s rarely how things work out in the real practice of law. Fortunately, Judge Norton didn’t like the idea the Secret Service Agent had told my client what he was doing wasn’t illegal as outlined in my letter to my client and let the U.S Attorney know it. He further stressed  he didn’t want a trial stringing all the merchants along just so they could  testify at trial nobody was defrauded out of anything or lost any money was in anybody’s best interest. And my client, although innocent of the massive fraud alleged,  didn’t want his girlfriend/partner having to face jail time. This is the stuff out of which plea bargains are crafted in the real world. My client agreed to plead to a few counts for a manageable 36 month sentence, if his girlfriend and all the merchant defendants received probationary sentences.  

           My client pled and was sent off to Butler FCI where he received medical treatment for a benzodiazepine addiction. He actually thanked me when he came home a much healthier person. He never got his business back but I’m confident he’d stashed enough away for him, his girlfriend/partner, and her cats to all live comfortably thereafter. And me, in addition to my fee, I got to write this story touting I was such a good lawyer the United State’s Attorney Office for the District of South Carolina tried to have me disqualified from a case for no good reason.

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  • HUNTING SEASON

    I couldn’t turn this poor man away and agreed to represent him on a vehicular homicide charge down in Colleton County. When he was getting ready to leave an outdoor bar-b-que in a friend’s backyard, a woman he vaguely knew asked if he could give her a ride back to town. He said yes but, before he could say anything else, the woman, her baby, and her two other children crammed into the back seat of his car. She kept her baby on her unseatbelted lap.

    It wasn’t his fault when a car pulled out in front of him and he slammed on his breaks narrowly avoiding a “T-bone” collision but the woman was thrown forward and crushed her baby against the back of the seat. The baby was dead before the police or ambulance arrived. The police charged my client with vehicular homicide, a felony carrying up to 10 years, a fine of up to $5,000.00, and a five year license revocation, on the theory not having the baby in a car seat constituted reckless driving.

    His case wasn’t even three months old when I received a notice it was on the General Session trial docket the second week of August. I made what I expected to be a wasted trip down to Walterboro Monday morning when usually courthouses are packed with prosecutors, defense attorneys, policeman, defendants, and witnesses involved in cases pending before the court. I was surprised how empty the court was and, when I asked why, I was told by the clerk a lot of lawyers had been granted protection for their summer vacations. Then the actual roster sounding began and I began to smell a rat.

    The clerk called the first case and the defendant’s attorney stood up to address Judge Perry M. Buckner, III. He was elected to the bench in 2000 but I got to know him when he was still an Assistant Solicitor for the Fourteenth Judicial Circuit. Born and raised in Walterboro, he was an avid outdoorsman. He was easy to get along with as a prosecutor and I dom’t remember ever having to try a case against him. This was my first time appearing before him as a judge. The defendant’s lawyer addressed Judge Buckner like they were lifelong friends. After exchanging pleasantries, the lawyer commented about how it was the beginning of deer season and he had plans to take his son on his first deer hunt. From the judge’s reaction you’d have thought he was taking his son for life saving surgery. Needless to say, Judge Buckner continued his case over the term.

    The second case called was already a good ways down the docket and, again the defendant’s lawyer addressed Judge Buckner like they were best friends. He reminded the judge he was President of the 5,000 acre Collins Hunt Club and in charge of the club’s gala dinner marking the beginning of deer season. Judge Buckner said he was planning on attending and granted his request for a continuance too. Maybe like me, you’re ignorant of the significance of deer season in Colleton County but, like me, you’re probably getting an inkling of where this docket sounding was headed. Lawyer after lawyer asked for and received continuances until my case, which had been at the bottom of the docket, had climbed its way up to the top.

    Wouldn’t you know it, Judge Buckner greeted me with a big smile like I was also a long-lost friend but somehow I felt more like a deer in the crosshairs of a rifle scope than a welcomed out of town attorney. I tried explaining my case was barely three months old and I wasn’t expecting a trial quite so quickly and Judge Buckner appeared concerned when he asked the solicitor if I’d been provided with all of the discovery. The eager young Assistant Solicitor replied yes before adding sua sponte the State was ready for trial. Judge Buckner turned back to me to ask if there was anything I still needed and, instead of saying I needed a break, I replied I would need until the morning to have my defendant and witnesses present for trial. Like he was magnanimously granting me a favor, Judge Buckner announced my case would be Number 1 case for trial Tuesday morning. I realized I’d been had.

    Driving back to Charleston I remembered a case I sat second chair on with Jack Swerling in Richland County. It was a housebreaking case which depended on connecting Jack’s teenage defendant to the break-in by his bookbag having been found on the side of the road near the house. Jack simply argued the bookbag could have just as easily have fallen off the back of his client’s bike and in the absence of any of his fingerprints having been found in the house, or any of the stolen property having been found in his possession, the prosecutor had failed to prove its case beyond a reasonable doubt. The jury agreed and cut the boy loose. The victory rubbed the prosecutor the wrong way and, before we could pack up our things, he advised the Court he was calling another of Jack’s cases next for trial. Jack protested but the Judge refused to intervene and I got to sit second chair for one of the best trials I ever saw.

    The smug prosecutor was way overconfident because he had a confession. He wasted no time calling the deadpan detective to introduce the confession and pissed off Jack wasted no time tearing him to shreds. Jack was familiar with the detective’s reputation for always getting confessions. The detective bristled when Jack suggested as much by asking how many of his cases depended on confessions. His evasive inability to remember caught the jury’s attention. Jack pressed on, well, how about just of your last ten cases, how many of those relied on confessions? I don’t remember. How about the last five? Four? Three? Two? The detective became more and more agitated each time he testified he couldn’t remember or said he wasn’t sure. Jack already knew the answer to his next question about the detective’s last trial because he knew the lawyer whose case it was. Jack called the exact name of the case and asked if he remembered his last case. The detective was stuck and knew it. If he said he couldn’t remember his last case, his credibility would be shot, so he admitted he remembered it. Jack didn’t skip a beat and said so you also remember there was no physical evidence, no eyewitness testimony, or recovered property in that case either, right? Just a confession the defendant retracted claiming it had been coerced. In rapid fire Jack followed up by laying out his case in rapid fire questions to the ruffled detective. In this case my client was held for four hours before supposedly confessing, there was no recording of his confession, the confession was written for him by the detective, he’d been threatened if he didn’t cooperate, promised he could go home if he confessed, and there was no physical or corroborating evidence whatsoever connecting his client to the crime aside from his confession. The detective denied the suggestion he coerced the confession but his answers no longer mattered.

    Jack’s courtroom prowess shown through during his closing argument. Jack gave the jury a Criminal Law 101 lecture on the admissibility of confessions. They must be freely and voluntarily given, without threat of force or promise of leniency. Even if they are admitted by the judge, it is for the jury to determine wether to believe them. And, then he stopped, walked over to counsel table and picked up a random blank sheet of paper, walked back up before the jury and announced in an angry and rising voice, “You know what I think of this confession?” as he tore the sheet of paper in half in front of the jury.

    I kid you not, he was so convincing, the Assistant Solicitor about jumped over counsel’s table objecting Jack was tearing up the evidence. The judge was surprised and started banging his gavel as the court security, unsure what was happening, started to converge. Jack just smiled and held the torn pieces of blank paper up for all to see, thanked the jury, and sat down. It was the fastest not guilty verdict I ever saw.

    The remembrance of Jack’s case calmed me down on my drive back to the office. So, they decided to make my case the sacrificial trial for the week, they should be careful what they ask for. I hit the books in the library and learned that, while vehicular homicide is not a specific intent crime, meaning the State didn’t have to prove my client intended to kill anybody, it has to prove the death resulted from a conscious failure to exercise due care. Like in Jack’s case, it was the evidence the young prosecutor didn’t have that would be the undoing of his case.

    My client was single and didn’t have any children,so he didn’t conciously fail to carry an infant seat in his car. He wasn’t concious the infant and children were coming along when he agreed to give the mother a ride back to town. He wasn’t concious the mother held her baby in her lap in the back seat. He hadn’t been conciouisly drinking, speeding, or otherwise driving recklessly when the other car pulled out in front of him. And, oh by the way, officer, why hadn’t the mother been charged with anything?

    My trial turned out to be the second fastest jury verdict I’ve ever heard of. The jury returned a not guilty verdict before I had half a chance to smoke a cigarette outside the Walterboro courthouse.

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  • BANKING …

    My friend, Bobby Howe, denied he associated me on cases and shared fees because of my legal abilities he so often needed. Instead, he insisted it was just so we could have fun together. It was in that same spirit, I invited Bobby to accompany me on a trip to Grenada I was making the trip on behalf  of a client who’d purchased 220 acres of beachfront property on the island and wanted me to attend a Caribbean Basin Economic Development Program sponsored by the Reagan Administration after it invaded the island.

           Off we flew to Grenada and, while I was stuck listening to mind numbing lectures in the conference room of the hotel where the meeting was being held, Bobby enjoyed himself making friends and running up an astronomical tab at the beach front bar. He met a Frenchman and his girlfriend attending the conference who expressed an interest in the property and felt like he was earning his keep by arranging a private tour of the property for his new friends .

           Bobby assured me he’d taken care of everything, but that little voice in back of my head was already telling me I should  know better. It took me about ten seconds to realize Frenchman and his girlfriend had no intention of buying anything and were just looking for a free adventure. Oh, they were fixin’ to get one but had no idea what they were getting themselves into.

    The trip began in a beat-up old minivan owned by the derelict brother-in-law of a bartender Bobby befriended at the hotel. We loaded up and held on for dear life as the maniac driver careened over Granada’s hilly coast road to an old plantation located a couple of miles down the coast from the property. We were all relieved to be out of the deathtrap van but soon realized the death-defying part of the trip was just beginning.

           I have to assume the boat and captain were another referral to a relative by Bobby’s bartender friend. The boat was a twenty-foot wooden boat that had to be at least  fifty years old and had an equally old, beat up out board motor with red plastic gas can plugged into it. The boat was brightly colored in whatever mismatched, leftover paint the owner could beg, borrow, or steal. The owner was every bit as old as his boat, but he’d been baked in the Caribbean sun for so many years it was hard to tell exactly how old he was. I immediately noticed the complete lack of ant lifesavers or safety gear. Only Bobby could have talked us all into the boat but he did and, before anybody could change their mind, he helped the owner push the boat out to sea. Our trepidation rose as the water reached within five inches of the gunwale. The ride out through the breakers took years off our lives.

           Once we hit open water, we all exhaled an enormous sigh of relief. Bobby sat at the back laughing with our captain who as relieved as we were we’d made it through. It was smooth sailing from there until it was time to head back into the property riding the surf all the way up onto the beach. We all scampered out of the boat as fast as we could thankful to be safely standing on the white sand of the property’s secluded beach. The property truly was paradise. It encompassed an entire undeveloped cove with high ground extending out on either side and a small undeveloped island. Petit Trou, nestled off one side. Palm trees lined the pristine beach, and it wasn’t long before we all forget the harrowing ride it took to get there. Of course, Bobby became so much of a hero for taking us all on such an amazing adventure, none of us minded the trip back to the hotel.

           That night was the highlight of the conference, a private party at the residence of the American ambassador. I don’t know how many millions of dollars someone has to donate to get the posting but it’s worth every penny. The newly renovated colonial residence was beautiful, but the party was being held on the just as beautiful manicured lawn stretching down the hillside from the residence to a breathtaking view out to sea. There was a brick pathway surrounded by flowering tropical plants that led from the residence to a sitting area down by the overlook.

            I lost track of Bobby while I tried to socialize with the ambassador and invited guests. It didn’t take long to find him when the time for the party to end approached. All I had to do was follow the laughter down the garden path. There he was, surrounded by Grenada’s upper class and a smattering receiving a lesson on how to drink the island’s prized 110 proof rum. The natives showed Bobby how they take a shot and quickly wash it down with a tall glass of water presumably to keep their heads from exploding, Bobby was encouraging the locals to show him how him one more time how to master the technique to hilarious laughter. When I told him it was time to go, it took another twenty minutes for him to say goodbye to all his newfound friends who were every bit as tipsy as he was.

           I was frankly surprised he was able to make it back up the garden path up to the residence in his condition. He gushed the whole way about how much fun he’d been having at the party. As we excited through the front door of the Ambassador’s residence, a stunningly beautiful woman dressed in her floral island finery, complete with matching tignon, stopped Bobby to say, “Oh, Mr. Howe, you should move down here to practice law in Grenad full time.” Bobby asked, “What kind of law would I be able to practice here?” And the woman replied in all seriousness, “Banking.”

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  • LIKE KISSING YOUR SISTER

    Too often nobody wins in the courtroom and too often feels more like kissing your sister than a victory. People nowadays admire the Honorable Clifton Newman for the way he presided over the Murdaugh murder trial in Colleton County, but I first got to know him when he was still the Solicitor for Williamsburg County. I was hired to represent a Charleston area college student accused of murder in his hometown of Kingstree, South Carolina. As murder cases go, it was a defense lawyer’s self-defense dream case.

    When my client returned home from college for the Thanksgiving break in his freshman year, he learned his younger sister was being recruited to join a gang. It really wasn’t much of a gang, more a high school click of wannabe gangsters than a real gang, but they’d dreamt up a demeaning recruitment ritual for young women. Hearing what the initiation entailed, my client forbid his sister from having anything to do with the gang or any of its members. When word got back to the self-appointed  gang leader, he vowed vengeance against my client. When my client got wind of the leader’s threats, he took them seriously and started carrying a pistol for his protection. Kingstree being the small town it is, it wasn’t long before the two crossed paths and heated words were exchanged. When the so-called gang leader thought he would prove how tough he was by beating my client’s ass, my client shot him dead as a hammer in the parking lot of a quick stop store. As good a self-defense case as there ever was in my fifty yearsyears’ experience.

    I fleshed out my client’s self-defense case at his preliminary and bond hearings and, although my arguments weren’t good enough to get the charge dismissed outright, they were good enough to get him released on bond. Unfortunately, my client was forced to put his college education on hold while he found a job so he could pay his parents back for his bail bond and attorney fees. There weren’t many jobs in Kingstree to begin with and being out on bond for murder, slammed the doors shut on the few jobs that existed. The case languished until my client’s name cropped up on the General Sessions trial roster and I was required to make the seventy-five mile, hour and forty-five minute drive to Kingstree to attend the hearing.

    Solicitor Newman said he understood the trip I’d made and, remembering my arguments at his prelim and bond hearings,  talked with me seriously about his having to deal with the victim’s grieving family. He countered my self-defense arguments saying the victim was just a high school student, he was unarmed, and his family denied he was a member of any gang. I replied my client was a student too, that was not my client’s understanding of the situation, and, under South Carolina law, the defendant in a self-defense case is entitled to act on appearances. Solicitor Newman offered if my client pled guilty in open court plea to voluntary manslaughter, he would not mention his pending charge for murder and put in a good word for him wioth the judge in-chambers, but my client steadfastly maintained his innocence and rejected the offer. Thus began a seemingly endless string of back-and-forth drives to Kingstree and a lawyer’s tug of war with neither side willing or able to give an inch.

    The modest fee I’d charged my client’s parents to begin with was beginning to look more and more like I was being paid the minimum wage. The break that finally broke the deadlock came not from either Solicitor Newman’s or my trial skills. My client, who had no prior record before he was charged with murder, turned to crime to earn money when he couldn’t find a legit job. And not just any crime, he decided to try his hand at bank robbery. Solicitor Newman filled me in on the details of the robbery and my client’s arrest when I appeared for my client’s next docket sounding. Solicitor Newman was genuinely upset by how things had turned out but said the victim’s family would be satisfied if my client plead guilty to the bank robbery charge and would allow him to dismiss the murder charge.

    My client freely admitted the bank robbery and agreed to plead straight up to the charge which carried from ten to thirty years, of which you had to serve at least seven years, to get it over with and the murder charge behind him. He pled guilty that afternoon to bank robbery and received a sentence of twenty years. Solicitor Newman was true to his word and never mentioned my client’s pending murder charge during the guilty plea and quietly nol prossed the murder charge later that same afternoon.

    I’d won a murder case, but it didn’t feel much like much a victory. It felt more like kissing my sister, nothing to get excited about. What if my client hadn’t been charged with murder? What if he’d been able to find a job? What if he hadn’t decided to rob a bank? “What if” questions will drive a lawyer crazy. They are best answered by reminding yourself “if your aunt had balls she’d be your uncle.” You aren’t responsible for the legal system, just to do the best you can to help your client out of whatever fix he or she got themselves into. So, pucker up, Sis, congratulate me for a not so satisfying victory in a murder case.

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  • THE LAWYERS OF ISLAM

            I was the attorney of record for Rocket Packs girlfriend who lived with him in the house with the floor safe stuffed with cocaine, money, and drugs. She was also charged with Trafficking Cocaine, more than 100 grams, and facing the same minimum. mandatory twenty-five years, no probation, no parole. Her claim of ignorance as to her otherwise unemployed boyfriend’s drug dealing activities was seriously undercut by the cocaine, straws, and mirrors strewn about the house as well as the scrap book of photographs showing them partying, drinking Champaigne, and riding around New York City in a limousine. In truth, she knew very little about her boyfriend’s drug dealing enterprise and the prosecutor was willing to let her plead guilty not only to simple possession of the cocaine found in plain view during the search but to recommend probation too. She agreed to accept the plea understanding she would probably lose her teaching certificate but that was a bridge she’d already burned behind her anyway. I informed the Assistant Solicitor we had a deal and requested he put her on the upcoming guilty plea docket.

            Her case was placed on the plea docket of Judge John Hamilton Smith, a no non-sense judge who wouldn’t have been my first pick to plea in front of,  but, nevertheless, a judge I knew would accept the recommendation. I notified my client of the date and time for her plea and said I would meet her at the courthouse a half-hour beforehand to fill out the paperwork required for a plea. I figured to get our paperwork in early so we’d be in and out quickly but everything fell apart when we met at the courthouse and she told me she’d decided to reject the offer. I asked what happened to change her mind but she wouldn’t tell me. Out of frustration, I asked her how it felt to screw herself giving up a plea to a guaranteed walk when she was facing twenty-five years hard time. All she would say is the Lawyers of Islam were coming down to the courthouse to take over her case. I told her they’d better hurry because Judge Smith was taking the bench in fifteen minutes and was expecting her to plead.

            A few minutes later Attorney Fred Henderson Moore, Sr., arrived at the courthouse. He was easily recognizable from the limited use of his arm and leg he’d had since birth. He was the last of twelve children born in 1934 during the Great Depression. I don’t know for sure, but from appearances he had cerebral palsy making his already hard life that much more of a struggle. Miraculously he thrived growing up in the Honey Hill subdivision of James Island. He was president of the Honor Society in his junior year and president of the student body in his senior year at Burke High School. He was one of only two African American students to take the college entrance examination the year he graduated. He was awarded the Danforth Foundation Leadership Award and offered scholarships to attend Carnegie Mellon and Harvard.  Too poor to pay for travel expenses and books, he decided to attend South Carolina State in Orangeburg on a full scholarship.

    Subjected to Jim Crow laws his whole life, he became a civil rights activist in college. He joined the NAACP’s effort to desegregate Orangeburg’s white schools after the Supreme Court’s Brown v. Board of Education decision in 1954.  The school board denied the Petition and the White Citizens Council began targeting anyone who supported the petition for retaliation. Undeterred, Mr. Moore helped organize a boycott of Charleston businesses a year before the Montgomery, Alabama bus boycott following the arrest of Rosa Parks.

    Orangeburg Representative Jerry Hughes, Jr., introduced a bill and the Governor sent SLED to investigate subversive activities on campus. Mr. Moore called the dean a moral coward for not supporting the students and was expelled from the college. Despite his expulsion, he graduated law school from Howard University and became a well-known civil rights and criminal defense lawyer. Fifty years later, South Carolina State University issued an apology and awarded him an honorary degree.

    It was about that time I first had the occasion to appear in court with Mr. Moore when he represented a co-defendant in an historical drug conspiracy case before United States District Court Judge Sol Blatt. Judge Blatt was one of the most gracious judges I have ever appeared before but Mr. Moore wore Judge Blatt’s patience flat out by being chronically late for court. When he failed to show up at all for post-trial motions, Judge Blatt lost it and called him incompetent on the record. Realizing he’d given the defendant a guaranteed appeal for ineffective assistance of counsel, Judge Blatt continued the hearing and appointed Coming Ball Gibbs to represent the defendant who was given a sweetheart deal to sweep the whole incident under the rug.

    And, here it was years later and Mr. Moore was arriving at the courthouse as a Lawyer of Islam.[1] He may have lost a step or two in the later years of his legal career but I can attest he remained fully competent on this occasion. I watched him interact with my recalcitrant client from down the hall and, as soon as he got the gist of what was going on, he backed her right up against the wall and gave her his Sharia Law advice in no uncertain terms. Immediately afterwards, he marched her straight into the courtroom to enter her plea.

            Sadly, in later years, Mr. Moore would be reprimanded, suspended, and ultimately disbarred from the practice of law but, to my mind, that shouldn’t detract from the miraculous story of his early childhood and early career as civil rights and criminal defense attorney. I wish I could have known him back when he struggled to succeed and fought to preserve and protect all of our rights. Wouldn’t it be wonderful if more politicians today would take note and retire before old age tarnishes their legacies.

    [1] It is curious how he became a Lawyer of Islam as there are several articles referring to Mr. Moore as the Reverend Dr. Fred Henferson Moore but I could find no record of his attending divinity school.

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  • GANSTA STYLE

    A client of mine and her sister lived and raised their families in apartments next door to each other on the east side of Charleston. The sister’s daughter got involved in an abusive relationship and was forced to call 911 when she was violently assaulted by her boyfriend. The police arrested the boyfriend and charged him with Criminal Domestic Violence. The daughter moved back home to live with her mother while he was incarcerated on a Twenty-five Thousand dollar bond conditioned on him having no contact with the daughter.

    It didn’t take long for the boyfriend to raise the ten percent cash needed to bond out and the very first thing he did upon release was go over to my client’s sister’s house where the daughter was staying to demand that she drop the charges. My client’s son happened to be visiting when the boyfriend showed up demanding to talk to his girlfriend. My client’s son walked over to to his aunt’s apartment to remind the boyfriend he wasn’t allowed to be there but the boyfriend told him to mind his own fucking business. When my client’s son insisted the boyfriend had to leave, the boyfriend came at him aggressively apparently thinking beating him up would be as easy as beating his girlfriend up. My client’s son beat the livin’ shit out of him. No one called the cops but bad blood remained between the boyfriend and son.

    Several months later their paths crossed again in a night club. My client’s son was headed to the bathroom when he walked by the boyfriend and his homies standing by the bar. The son just kept on walking but the boyfriend and his friends followed him down the hallway to the restrooms. My client’s son stopped, turned around, and withdrew a small 25 caliber ACP, automatic Colt pistol, from his jacket pocket just as he was about to be jumped from behind. Upon seeing the gun, the boyfriend’s friends and he about climbed over each other trying to run the other way. The son fired one shot in the commotion that just happened to hit the boyfriend right in his ass. 

    My client’s son had the good sense not to run away or make any incriminating statements when he was arrested and charged with Assault and Battery with Intent to Kill, a felony carrying 20 years. He became my client, pled not guilty, and we demanded trial by jury beginning the agonizingly long wait to get one. Meanwhile the boyfriend’s CDV charge languished because he had become a cooperating witness for the prosecution.

    Now, you might think my new client he had a rock-solid defense but prior to 2024 it was illegal for anybody to carry a concealed weapon without a permit in South Carolina and shooting somebody in the back who’s trying to get away from you was frowned upon in self defense cases in the eyes of the law. Fortunately, the only real defense in a murder or attempted murder case is that is the guy who got shot was a son of bitch and my client was the perfect person to shoot him.

    Most people think all judges are the same but in the criminal court there are two different kinds of judges. There are plea judges defendants will line up to plead before because they accept plea bargains and are willing to impose probationary sentences and trial judges defendants avoid like the plague because they would sentence a nun to hard time for jaywalking. The Honorable Kristi Harrington was our assigned judge for trial and , as a former prosecutor, she was definitely of the later variety. This would be my first trial appearing before her.

    Things got off to a rocky start with the crime scene photographs. I’ve written before about the nasty habit of small caliber bullets to ricochet around inside bodies they enter butwho knew the buttock was so full of arteries? Apparently the bullet in this case shredded the boyfriend’s superior gluteal artery resulting in copious quantities of red blood being sprayed all over the hallway to the bathroom. The jurors’  gasps when shown the pictures were not a good sign. I did my best highlighting it was only one shot from a small caliber pistol but the damage to my self defense defense had been done.

    The medical examiner’s and investigating officer’s testimony was like a base line tennis match with volleys going back and forth and neither side gaining much in the way of an advantage. Then the prosecutor called the boyfriend to testify and things started to heat up. I had just begun my proof the boyfriend was a son of a bitch when Judge Harrington saw where I was headed and cut me off. She precluded me from getting into the details of him being charged with CDV because he hadn’t been convicted and, in her gratitious words to the jury, was presumed innocent. Likewise, she precluded me from even mentioning the boyfriend’s friends had pending Trafficking Crack cocaine charges for the same reason. I wasn’t making much headway on my the boyfriend was a son of a bitch defense but, meanwhile, the boyfriend testified my client shot him with his gun held sideways “gansta style.” I jumped up and strenuously objected but Judge Harrington quickly overruled my objection. I know I shouldn’t have but the unfairness of her ruling got under my skin and I muttered under my breath loud enough for everyone to hear, “Great, I can’t say his friends are crack cocaine dealers but he can call my client a ganster.”

    Judge Harrington turned flaming red and demanded to know what I’d said. I stood my ground and said I had excepted to her ruling my client could be called a gangster in front of the jury. She threatened me with contempt for any similar gratitious comments. I could see the jury taking it all in but couldn’t read their reaction.

    Even restricted I was able to paint the picture of the bad blood between the boyfriend and my client cross examining the prosecution witness and I completely filled in the picture when I called my client to the stand. Now, normally, calling a defendant to testify is ill advised for a myriad of reasons that are not applicable in a self-defense case. The defendant has to testify in such cases. He had no prior record and the only hurdle he had to overcome was his carrying a gun into the nightclub that night. Thankfully, he testified forthrightly that he brought it with him because he knew the boyfriend’s reputation for violence.

    He was a likeable defendant whose testimony carried the day and the jury returned a not guilty verdict. One of the jurors came up to me after the trial to tell me a couple of jurors were upset the judge had to dress me down during the trial but he told them a lawyer isn’t doing their job if they’re not fussed at by the judge at least once during a trial . In fairness to Judge Harrington, I shouldn’t have let ruling get to me but, all in all, I think by the end of the trial she’d stopped being so prosecution-oriented and she I know she was satisfied with the verdict. It wouldn’t be the last case I tried before her and we got along afterwards. I always found I could earn a judge’s respect when I fought a hard case for my clients, especially when I won. I tried my last murder case in front of her but I’ll write about that story another day.  

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  • A Constitutional Crisis in Cottageville

    Let me just begin by saying my wife, Mary, likes studying people while waiting in places like restaurants and airports. There we were waiting to board a flight when Mary leaned over and whispered in my ear, “There’s a woman over there that’s cutting you killer eyes.” I looked up and there she was, the antagonist of a constitutional crisis that occurred in Cottageville, South Carolina, a small town in rural Colleton County with a population just shy of eight hundred.

            The wife of an old client of mine was sued being for being part of a civil conspiracy to defame the reputation of the Cottageville Town Clerk and have her unceremoniously fired from her job. It all began when the former mayor of Cottageville was killed driving eighty-something miles an hour on the county’s back roads. The newly elected mayor thought it would be wise as part of his orientation for his new job to meet individually with the town’s staff. The meeting with the town clerk lasted longer than most, in fact, it seemed never ending.

    People began noticing the mayor’s and clerk’s cars parked outside the locked Town Hall at all hours, day and night. Tongues in the small town began wagging. The gossip escalated when the mayor gave the clerk a brand new desk placed right outside the mayor’s office with a large ornate clerk sign. In contravention of the town’s time-honored open-door policy, henceforth people were told they needed an appointment to meet with either the mayor or town clerk and the clerk’s snooty attitude if the new rule was violated ruffled more a few feathers in the town.  

            Idle gossip allegedly became slander when the clerk was flat out accused of having an affair with the mayor at the local beauty salon. The clerk’s specifics as to who, what, where, and when the alleged slander occurred were exceedingly vague. But the clerk maintained it was the beginning of the end of her virtuous reputation

            The next act in furtherance of the alleged conspiracy occurred at the local bank. A teller allegedly repeated the slander when the clerk demanded immediate service ahead of other customers. The teller’s comments included a suggestion the clerk should take the town’s business elsewhere allegedly causing pecuniary damage to her livelihood.

            It was the Cottageville dry cleaner who brought the simmering constitutional crisis to a boil. Cottageville being such a small town it was not unusual for the dry cleaner to deliver cleaned laundry right into your home. One day the good citizens of Cottageville, including my client, were enjoying their lunch at the Good Eats restaurant on the main drag when the dry cleaning lady came in an excitedly exclaimed for all to hear, “You won’t believe what I just saw!”  She went to describe how she entered the mayor’s back door, like she always did when delivering his dry cleaning, she encountered the mayor standing with his pants down around his ankles and the clerk on her knees by the kitchen table. It took all of about ten seconds for this news flash to be repeated to every inhabitant of the town.

            And it was the last straw for the good ladies of Cottageville, my client included, who decided to join together and run for Town Council for the express purpose of firing the clerk. And, they won the election and did exactly that. Good riddance, well not so fast. The town clerk retaliated by filing a lawsuit against the town and all the newly elected council members for besmirching her reputation and destroying her ability to earn a living.

    The lawyers representing the other defendants and I filed answers to the lawsuit denying the allegations, pleading truth as a defense, and raising as many affirmative defenses as we could think of. We answered discovery and, after four or five months racking up legal fees, we were finally ready to take the clerk’s deposition. With the town, mayor, and co- defendants all having lawyers, the deposition was well into the second day when it was my turn to cross-examine the clerk. The lawyer’s ahead of me had already elicited adamant denials of infidelity from the clerk and I certainly felt no reason to beat that dead horse. I focused on what evidence, if any, the clerk had my client actually accused her of anything. Oh, she was right in the thick of it, the clerk claimed, joined right in with those other ladies to do her dirty.  When it turned out she didn’t have any evidence my client accused her of anything, I filed a motion for summary judgment.

    We drew the Honorable Carmen Tevis to hear the motion. Judge Tevis let it be known in no uncertain terms she had no intention of listening to the sorted details of the alleged debauchery at the hearing. Having already described the details in detail in my not so brief brief, I whole heartedly agreed with the judge and told her it was the complete lack of evidence my client had said anything about the clerk’s conduct that entitled her to summary judgment. When the clerk’s lawyer protested my client had campaigned on a platform to have the clerk fired, I admitted as much but countered with my client had the absolute constitutional rights to freedom of speech, assermblt, and right to petition the government for grievances and, since that was all the clerk alleged my client had done, she was entitled to judgement as a matter of law. Judge Tevis agreed and granted summary judgment.

    I mistakenly thought everyone was glad it was over. Certainly, my client, her co-defendants, and the town who all had limited resources to pay mounting legal fees were glad it was over. No appeal was taken from Judge Tevis’ order by the clerk’s counsel who I suspected had unwisely taken the case on a contingency fee and seen the writing on the wall. But, obviously not everybody was glad with the result. Here  I was sitting in the airport with my wife worrying I was about to be assaulted by some crazy lady. It is the price we lawyers have to be willing to pay for fighting to preserve and protect our constitutional rights. A price I have paid many times having been appointed to represent despicable people accused of committing horrendous crimes. Although no major movie studio has called offering to buy the rights to this monumental constitutional battle fought out in the back woods of the deep south, I will always consider role in the case as a badge of honor.

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  • THAT’S IT, I’VE HEARD ENOUGH

    Family Court Judge Warren H. Jolly was always a courageous fighter. He was an Air Force fighter pilot during World War II. He attended law school after the war but was called back into active duty during the Korean War. He later became the Public Defender for Berkeley County fighting for the rights of indigent defendants befdore he became a Family Court judge. I had the privilege of appearing before him many times before he retired in 1988. If he had a fault as a judge, it was that he agonized over making decisions but not in one case of mine he presided over.

            A young boy was caught performing a sex act on another boy in the school lavatory. The school reported the incident to the police, which in turn called child protective services. The boy was removed from his home, his father and uncle accused of child sexual abuse, and his mother left devastated. It was his mother who hired me to appear with her at the emergency removal hearing in the Family Court.

            The child protective services case worker testified the boy said in his forsensic interview he got up in the morning and his father had anal sex with him. Then, after breakfast, his uncle had anal sex with him. Then, later that day, his father and uncle took him to a motel where their friends had anal sex with him. I prefaced my cross examination of the case worker with an admission I didn’t know anything about anal intercourse, but I didn’t think it was physically possible for a young boy to engage in anal sex with so many grown men over the course of one day. To my utter amazement, the case worker responded, “Oh, we don’t believe what he said happened happened but, because he said it happened, we believe something must have happened.” I didn’t think that rose to the level of probable cause to believe the boy was in imminent danger but, this was only a temporary hearing, and the presiding Family Court judge wasn’t so sure and ordered that the boy be placed in a foster home pending a hearing on the merits.

            The mother didn’t believe what the case worker said had happened and was determined to fight on to get her son back. She felt she had no choice but to request the father vacate the marital home. He complied but took his financial support with him leaving her in dire financial straits. We were waiting for a hearing on the merits to be scheduled when we were summoned back to court for another temporary hearing because the boy was acting out in his foster home. The new Family Court judge assigned to hear the matter accepted the case worker’s recommendation that the boy be placed in an industrial school for boys.

            I’m not sure the ink was dry on the judge’s signature to the new placement order when we were called back to court for yet another temporary hearing. This time because the boy had broken out the windows at his new school claiming he’d been sexually molested by one of the counselors at the school. Again the Family Court judge hearing the matter accepted the case worker’s recommendation the boy be transferred to a special program for emotionally disturbed children in the upstate.

            The law requires that a hearing on the merits in removal  cases must be held within thirty-five days. Thankfully, we drew Judge Jolly as the judge for our merits hearing. The mother and I sat at counsel table waiting our turn as the case worker reviewed the case history and how it was the boy ended up camping in a teepee outside of Walhalla, South Carolina, where he was learning to control his anger issues. As Judge Jolly sat listening to the testimony, his complexion and facial expression got darker and darker.

            Judge Jolly had gone bald in his later years and had a comb over undoubtedly held in place by hairspray. From time to time on the bench, as he listened to testimony, he would rub his hand through his hair disturbing his comb over. As he became more and more disturbed by the case worker’s testimony in this case, his hand started  rubbing his head harder and harder to the point where his hair was starting to stand up on end. Seeing this the poor mother, leaned over and whispered in my ear almost in tears, “Oh, my God, is this clown going to decide my son’s future?” I struggled to keep from laughing because Judge Jolly was looking a might clownish the way his hair was sticking out but I whispered back, as best I could, the mother should be patient because Judge Jolly was a good judge and I was confident he would do the right thing.

            Perhaps sensing the mother’s anguish, all of a sudden Judge Jolly banged his gavel to stop the case corker’s testimony and announced, “That’s enough! I’ve heard enough. I don’t care what happened in this boy’s home, it couldn’t possibly be any worse than the abuse DSS has inflicted on him since he’s been in your custody. Case dismissed.” It hadn’t even taken the length of the case worker’s testimony for Judge Jolly to decide this case.

            The mother was so happy she started crying. She’d lost her husband but had gotten her son back. She and her son were both crying when they reunited in the hallway outside the courtroom. I remained friends with the mother and represented her on other matters as the years passed by. She acknowledged he was gay but said she’d accepted that with all the love in her mother’s heart .When I asked how he was doing, she told me he was all grown up, had finished cosmetology school, had his own salon, and was healthy, and happy. With a proud smile she asked, what more could a mother ask?

    Too often there are no winners in the Family Court but this case was an exception because of an exceptional judge. Judge Jolly was a courageous fighter who had the courage to buck the system all too willing to define homosexuality as deviant behavior instead of a natural fact of life.

           

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  • THE TREE FROG DIDN’T DO IT

    Jury trials are supposed to be a search for the truth, so it only makes sense Rule 3.3 of the Rules of Professional Conduct prohibit lawyers from making knowingly false statements of fact to the court or juries. Unless, that is, the Rules of Evidence require lawyers to lie. Without any empirical evidence that I’m aware of supporting such a bizarre notion, the Rules of Evidence not only sometimes allow but require lawyers to lie to prevent feared prejudice against poor, defenseless insurance companies.

    It not like other lawsuits aren’t brought against insurance companies. Claims for storm or fire damage under homeowner insurance policies are routinely brought directly against the insurance companies. I’m not aware of juries uncorking on homeowner insurance companies for no good reason in such cases. Even if juries do get overly enthusiastic every once in a while in such cases, there are post-verdict motions and appellate courts to moderate any unjustified awards. But, when it comes to run of the mill wreck cases, however, the Rules of Evidence are convinced the mere mention of the word insurance will result in dimwitted jurors being completely dethroned of any semblance of reason and fairness. So much so, wholesale lying to juries is not only allowed, it is required.

    It starts when lawsuits are initially filed. Lawsuits to collect personal injury damages under an automobile insurance policy are brought, not against the real party in interest, the at fault driver’s insurance company that will actually pay any judgment, but against hapless drivers. The Court tells the jury at every stage of a trial that the defendant is the driver and they have to return a verdict for or against the driver. Insurance company lawyers that are hired and paid for by the insurance companies lie and say they represent the driver. It may be true jurors, who are required to pay exorbitant automobile insurance premiums themselves, sometimes ignore the lies and figure out who the real party at interest is but relying on juries to figure out they’re being lied to is a piss poor way to seek the truth in a courtroom. Too often it doesn’t work and human jurors easily swayed by sympathy can deny injured persons the damages they deserve. Let me give you an example from my own experience.

    A wonderful, elderly grandmother helped her working, single mother daughter out by providing after school childcare for her grandchildren that her daughter couldn’t otherwise afford. Every day, she would pick up her grandchildren from their rural school and keep them until their daughter got home from work. The grandmother was retired and struggling to make ends meet herself on her meager Social Security benefit. Her advancing arthritis brought on from her own lifetime of hard work made it physically difficult for her to pick up the children but, she didn’t complain because that’s what grandmothers do. I certainly never became a lawyer so I could sue wonderful grandmothers but that’s what I was forced to do when her automobile insurance company offered a ridiculously low a settlement my client would agree to accept.

    I knew I was in deep trouble with the jury when the practiced insurance company lawyer feigned compassion as the grandmother he’d dragged into court slowly hobbled up to the witness stand on her shaky cane. It broke the juror’s hearts just like the insurance company lawyer intended. He plucked their heart strings playing a symphony of sympathy. After plowing the fertile ground about her being on her way to pick up her grandchildren from their school, he revealed his claimed reason for the collision. It seems that gap between the hood of your car and its windshield, where the wiper blades retreat when not in use, and where leaves collect and get soggy is a perfect habitat for the Lowcountry’s ubiquitous singing tree frogs. As grandmother was driving down the State Road leading to the school, following my client who was getting ready to turn into his driveway, a tree frog jumped out of the gap right onto the center of her driver’s side windshield. The look on the terrified little frog’s face as he hung on for dear life startled grandmother. She froze not wanting the smear poor creature with her windshield wipers just as my client was starting his turn. She tried to stop but her car caught the right rear of my client’s car and pushed him into the ditch that ran along the edge of the highway for drainage.

    I don’t blame the jury for their verdict, it was understandable. I was disappointed for my client who’d had prior lumbar spine surgery and suffered a significant aggravation of his sciatica that didn’t settle back down until after a series of rather expensive epidural steroid injections. Fortunately he understood their verdict wasn’t my fault. He was a very nice man who felt sorry for the grandmother too. The insurance company lawyer probably laughed about the verdict all the way back to his office.

    I can’t help but think, if the jury hadn’t been repeatedly lied to throughout the trial, the result would have been different. My client and I weren’t suing her, we were suing her insurance company that wasn’t elderly, handicapped, and struggling to help her daughter. It was a rich and powerful corporation making huge profits charging exorbitant premiums supposedly to compensate persons injured in wreck cases. It wasn’t the tree frog’s fault, it was the fault of the Rules of Evidence that countenance lying to juries to protect rich and powerful insurance companies.

    We don’t recognize the legal maximum res ipsa loquitor, which literally means “the thing speaks for itself,” in South Carolina, but it seems to me it speaks for itself that telling lies is never the way to find truth in a courtroom. I encourage young lawyers still fighting for justice in the courtroom trenches to argue they should be allowed to name automobile liability insurance companies as the real party in interest, to require insurance company lawyers to disclose who they really work for, and explain who will really pay any verdict they return. They’ll need to preserve their exception to the Court’s rulings denying the motions, during the trial, at the directed verdict, and at post-trial motion stages, and raise the issue as part of any appeal. Maybe some young lawyer will make a name for him or her self by striking a blow for truth and justice in the courtroom.

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  • PIGS GET FED; HOGS GET SLAUGHTERED

    After all the rush and fuss of the holidays, my clients’ had a family tradition. They gathered every New Years Day to eat Chinese takeout. After dinner on paper plates, the women were talking in the kitchen, the men were playing video games in the back room, and the children were gathered in the living room in front of the tv. It was a relaxing way to spend New Year’s Day without anyone having to do the cooking or cleaning.

    Unfortunately for them, a new bail bondsman in town needed to work that New Year’s Day. He’d signed up to be an agent for an out-of-state bail bond company looking to expand into the Charleston market. His only qualification for the job was his shaved head and diamond stud earring he thought made him look street tough. All the money to start his bail bond business was fronted by the company in exchange for 50% of the fees he collected and his agreement to abide by their rules and regulations.

    Bail bondsman typically charge 10% of the bond set by the magistrate to spring somebody from jail. Naturally, the worse the alleged crime, the worse the defendant’s prior record, and the greater his risk of flight, the higher the bond is set. Most bail bondsmen who risk their own money are cautious about posting large bonds without rock solid collateral, but our wannabe bail bondsman didn’t have any skin in the game and couldn’t resist posting a $250,000.00 bond for a drug dealer. Half the $25,000.00 fee he’d earn before Christmas was just too tempting for our fledgling bail bondsman to pass up.

    If he’d bothered to read the rules and regulations he’d agreed to follow, he’d have filled out the forms he was required to use when writing a bond of that size, but he didn’t. If he had filled out the forms, he would have realized he wasn’t authorized to post such a bond without two co-signers possessing verifiable assets, but he didn’t have either and wrote the bond anyway. When the defendant didn’t show up in his office the next day to fill out the paperwork, the bail bondsman got around to reading those rules and regulations and learned if he violated those rules and regulations, the company could seize all of his assets and put him out of business. He was working that New Years Day desperately trying to capture the fugitive before his company found out what he’d done.

    The bail bondsman and two hired cronies drove up into my client’s driveway that New Year’s Day just as it was getting dark. They encountered a younger cousin in the front yard and one of the cronies held him on the ground at gun point while the bail bondsman and the other let themselves into my client’s front door. They entered into the living room full of children who screamed. That brought the children’s mothers and fathers rushing into the living room where the shotgun toting bail bondsman ordered everybody to get down on the floor. None of my clients complied. The men didn’t need shaved heads or diamond earrings to look street tough; they were the real deal. They were the size of the NFL linemen in the John Madden video football game they’d been playing in the back room. The bail bondsman announced, in a now faltering voice, he was going to need to see all their I.D.’s. Steely eyed, the men replied all he needed to do was get the fuck out of their house. After a silent stand off one of the men testified lasted between 8 and 10 seconds, the bail bondsman and his crony slowly backed out the front door threatening to call the police.

    The woman of the house, actually called the police and filed an incident report of the incident but the police didn’t do anything, so the mother came to see me the next day. I filed a civil lawsuit against the bail bondsman and the company he claimed to be an agent for alleging trespass, assault, and intentional infliction of emotional distress seeking actual and punitive on behalf of everyone in the home that New Years Day.

    It turned out the bail bondsman didn’t have any liability insurance and an asset check revealed he wasn’t worth the cost of the paper of any judgment against him would be printed on. That left the company he worked for that hired a whole silk-stocking law firm to claim the bail bondsman was an independent contractor as expressly stated in the written contract thye’d signed. They filed a motion for summary judgment to dismiss them and any hope of recovery from my client’s lawsuit.

    The law does say you’re not responsible if, for example, a painter you hire to paint your house drops a can of paint on a passerby, but the law isn’t completely stupid and says just calling somebody an independent contractor isn’t enough. It’s a question of control over the manner and means of the work being performed. I argued to the Court hearing the summary judgment motion, the rules and regulations the bail bondsman agreed to follow controlled every aspect of the bail bond business he conducted. Of course, the company’s insurance lawyers argued other inferences, but the Court ruled that whether the bail bondsman was an employee or independent contractor was for the jury to decide and denied summary judgment.

    We drew Judge Markley Dennis for our jury trial. I tried many cases before Judge Dennis but don’t remember him enjoying any more than this one. He remained scrupulously impartial, sometimes bending over backwards for the company, to avoid any reversible error. He bifurcated the trial into two parts: one to determine liability and actual damages and the other to determine punitive damages.

    I can promise you it wasn’t my lawyering skills but the facts I laid out in my opening statement that won the case. The jury was horrified by what had happened to this family minding their own business in their own home on New Year’s Day. The insurance lawyers’ arguments the bail bondsman didn’t work them, just pissed the jury off further. It was a fun trial. It was the first and only time my wife, Mary, got to see me in a trial. It wasn’t a question if my clients would get a verdict, only how much the verdict might be. I’m sure everybody, myself included, had grandiose ideas how much it would be. Nobody expected a verdict of $90,000.00 actual damages against both the bail bondsman and the company during the liability phase of the trial.

    We would still have to come back in the morning for the second phase of the trial to consider punitive damages. Here’s where my lawyering skills came into play. When meeting with my clients that night it became apparent not everyone was happy about the amount of the verdict. While $90,000.00 is no small sum, divided between all the family members it wasn’t enough to prevent discord and suspicion within the family. I surprised them by saying I thought the verdict was more than generous. I told them, in fact, based on the trial testimony it worked out to roughly $10,000.00 for every second they were in the house. Getting people to look at things in a different light is what a lawyer does. If any of my clients had ever seen the inside of a courtroom before, I can guarantee it wasn’t in a civil court, but they were not only street tough, they were street smart. When they heard my $10,000.00 a second argument, they all laughed. I reminded them we still had the punitive damage stage to do but to avoid future friction they needed to agree on how the money should be divided. I suggested since there were three families in the house, each family should get an equal share or one third. They agreed.

    The next morning the second phase of the trial never got underway. The insurance company’s lawyers offered to pay an additional $75,000.00 in punitive damages, a to sweeten the deal said the entire amount, $165,000.00 would be paid in 5 days with no appeal. While I advised my clients the jury could award significantly more than that in punitive damages, there was no guarantee. I also explained an appeal could tie up any recovery for a couple of years. My clients met separately and, for their own reasons, decided to accept the settlement offer. My client’s knew what too many lawyers I know don’t: pigs get fed, hogs get slaughtered. I spoke to some of the jurors afterwards and learned they felt they’d already awarded enough punitive damages.

    I think of this story, and my client’s enjoying Chinese takeout, every New Year Day.

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