It turns out this old trial dog may still have a few tricks left in him to teach. My son was just two years out of law school when we tried his first jury together.
It was a motor vehicle wreck case. The wreck happened on May 3, 2015 at 2 o’clock in the morning. Our client had finished watching the Pacquiao-Holyfield pay per view fight at his brother’s house and was driving his girlfriend home. He lost sight of an SUV ahead of him on as it went around a bend in the road. Just as he rounded the same bend, he heard a large boom as a transformer exploded in a flash of light the blinded him. The streetlights went out and, before his eyes could adjust, he ran into a utility pole laying across the road. His car flew up in the air and came back down on top of the pole. Dazed, he checked on his girlfriend while trying to figure out what he’d hit in the darkness. Slowly he pieced together that the SUV ahead of him had run off the road and hit the utility pole so hard it snapped in two with the top half falling across the road. As he climbed out of his car, he saw the other driver climb out the SUV, look at the wreckage, and flee the scene on foot without so much as, “Is anybody hurt?”
My client called the police and the responding officer ran the tags on the SUV. It was owned by a local event planning and equipment rental company and had not been reported stolen. Both vehicles had to be towed from the scene. The investigating officer put a hold on the SUV then kindly gave my client and his girlfriend a ride home.
The next morning our client could hardly move his head. He had pain and numbness running from his neck, through his left shoulder, down his arm, into his hand and fingers. His girlfriend took him to the ER where they ran a CT scan, gave him pain pills and muscle relaxers, and told him he needed to see a neurosurgeon.
But his neck and arm weren’t what our client was most concerned about. He needed a car to drive to Miami in four days’ time to attend his granddaughter’s funeral. He dialed the number of the SUV’s insurance company the policeman gave him to ask what he needed to do to get a rental car. The insurance company was unmoved about his granddaughter’s funeral and said the SUV had been stolen from an event in downtown Charleston and they weren’t responsible. His protest the policeman told him the SUV hadn’t been stolen fell on deaf ears. “There’s nothing I can do,” the adjuster curtly told him as she hung up.
Frustrated, our client looked up the number for the event company and called hoping to speak to somebody who could straighten things out. The receptionist was also unmoved with his granddaughter’s funeral and told him the SUV had been stolen out of their parking lot earlier on the night of the collision. “No, you can’t speak to anybody in charge,” she said before she also hung up on him. Our client decided to drive down to the event company’s warehouse to speak with somebody in person. When he arrived, he saw that the parking lot was fenced, had a locked gate, and a security camera. He knew the event company was lying but also knew he would need help.
I’m not sure how it is he came to my door, but I do know the majority of lawyers would have turned his case away. If the SUV was stolen, there wouldn’t be insurance coverage and no chance of a quick contingency fee. But I could see he was hurting, and the thought of turning him away never occurred to me. I was excited my son had passed the bar and put him in on the case.
Truth is we didn’t have much to work with and sorting it out would take time. He would have to get his brother to drive him to Miami for his granddaughter’s funeral. After a long haggle, I got our client’s collision insurance company to pay the fair market value for the total loss of his car but that wasn’t enough to pay off his banknote. Fortunately, he paid extra for GAP insurance, and after more haggling got them to pay of the balance of his car note. That meant, although his car note was paid off, he didn’t get anything to to use for a down payment on a new car. He was left stranded with no car, the pain and tingling in his arm and hand, and unable to work as a drywall hanger.
He couldn’t catch a break. He tried to see the neurosurgeon he was referred to by the ER, but the neurosurgeon wanted $600 to even schedule the first visit. He didn’t’ have it. I arranged for him to see my doctor who does magic for me when my sacroiliac joint goes out and would agree to wait to get paid until I could sort the coverage issues out. Problem was, shen my doctor examined him and reviewed the ER CAT scan, he said my client needed an immedfiate MRI. I had to sign him up for medical financing at exorbitant rates so he could get the MRI. When my doctor reviewed the MRI, he asked when my client had prior neck surgery. Seems the MRI showed two levels of vertebra in my client’s neck were fused together. My client assured him he’d never had neck surgery but did remember they said he fractured his neck playing football his junior year in high school. He had to wear a hard neck brace for a couple of months but that was all the treatment he’d received. He played football his senior year and after high school joined the Marines completing boot camp and his tour of duty. Since then, he’d been doing sheet rock work for years without a problem, the need to see a doctor, or having to take any medicine for any neck pain. Unfortunately, as a lawyer, I knew this would just muddy up the waters both in terms of the treatment he might need and how an insurance company would evaluate his claim based on his “preexisting” neck problems.
My doctor was scared to touch him and referred him to the largest spinal surgery orthopedic practice in the city. They wanted $2,000 for the first visit and $2,000.00 for each epidural injection thereafter. Sure, they’d take an assignment on the case, but my client could see the writing on the wall. There wouldn’t be anything left for him out any settlement. We convinced my doctor to try less invasive trigger point injections in his office.
At last my client caught a break, the injections worked. The arm and hand pain and numbness almost went away. He could start back at work but soon learned he’d never be able to do sheetrock work again. It was just too heavy and too much overhead work.
I filed a “John Doe” action against my client’s uninsured motorist (UM) insurance coverage, and they soon bellied up his $25,000.00 coverage. It wasn’t much but at least he could pay off his doctor bills, pay off the loans he’d taken out to keep food on the table, and scrap together a down payment on a new car. Normally, when you settle a UM claim, you assign your right to sue the actual driver to your insurance company. I made a special arrangement with my client’s insurance company. They agreed to allow me to pursue the company that owned the SUV on a deal we’d split any recovery: 1/3 for them (until their lien was satisfied), 1/3 for my client, and 1/3 for me.
I’d like to think I’m a good lawyer, but I never stopped believing there’s a bigger hand working behind the scenes when justice is at play. We started catching more breaks during what we lawyer’s call discovery. The event company’s story about the SUV having been stolen began to fall apart. We learned the SUV had been given to an employee whose criminal record included multiple convictions and actual prison time for burglary, selling crack cocaine, and possession of a stolen gun by a convicted felon. His driving record was even worse. Over the years he wasn’t in prison, he’d accumulated a reportable accident, 7 speeding tickets, and 4 suspensions. The bottom line is the event company never should have entrusted him with the SUV in the first place. We also learned none of the other employees working at the warehouse that night saw him return the SUV and company’s security camera didn’t record him return the SUV before the wreck. Wait, it got better, the next day when the employee showed back up for work, his hand was all bandaged just like he’d been in a wreck. It turned out the event company and its insurance company just choose to believe the word of a convicted felon who had every reason to lie when he said he left the SUV parked on the street outside the locked gate with the keys in it before the wreck. On top of that, he just stopped coming to work after he was questioned about the SUV.
I understand it may sound like we now had a slam dunk case, but South Carolina law strongly favors corporations. Not only would we have to prove it was their employee who was driving the SUV, we’d have to prove he was acting within the “course and scope of his employment in furtherance of” the event company’s business for them to be liable. We could put up a strong circumstantial evidence case by proving the company lied about what happened, didn’t follow instructions from the police, withheld material evidence from the police, and destroyed potentially damaging evidence including an open liquor found on the floorboard of the SUV. Countering this evidence, however, the event company’s lawyers presented his time clock record showing he’d clocked out of work at 11:00 o’clock, 3 hours before the collision.
At mediation before trial the insurance company offered a measley $30,000 which we turned down. As fate would have it, we were the #1 case for trial back in March of 2020 when Chief Justice called a halt to jury trials because of COVID. My client and Logan would have to wait 15 months to try the case. It probably wasn’t a good idea to give semi-retired me time to fine tune my trial strategy. I must have written and rewritten my opening statement a hundred time trying to make it pop. “… we are here today because Art of Creating, Incorporated, doing business as OHH! Events turned a blind eye to what it’s employee, Brandon Daniels, did, tried to blame a fictitious thief for his recklessness, and refused to take responsibility for the harms and losses he caused to my client, … I am confident taking the facts and circumstances together will firmly convince you what should have been plainly obvious to Art of Creating back then. The SUV wasn’t stolen, it was being driven by their employee, Brandon Daniels, who recklessly drove it off the right side of Accabee Road and crashed into the utility pole, then fled the scene without so much as an “is anybody hurt?’ Would that were all we are here trying this case about today, it is not. We are also here today because evidence we’ve since uncovered will show, had they bothered to ask, Art of Creating would have known Brandon Daniels lacked the competence, character, and judgment to drive their SUV on streets, highways, and bridges of our community and never should have entrusted him with the SUV in the first place. We are also here because Art of Creating lied about what happened, disregarded the instructions from the police investigating the wreck, withheld material evidence from the police, and destroyed material evidence before the police could examine it. Art of Creating not only did these things, it knew better, did it anyway, and couldn’t have cared less about my client… You will be the voice of justice in our community. Speak it loudly.
Hold on, hold on, I hear you wondering, so where’s my son, Logan, in all this. I decided for his first trail Logan should do the direct examination of the investigating officer. People think cross examination is the hardest thing a trial lawyer does. It’s not. Trying to tell a coherent story without asking leading questions takes skills you can only learn in a courtroom over years and years. Logan and I worked long and hard on his questions for the officer. He was eager to learn, willing to write his questions out, practicing saying them out loud, over, and over, until he had the confidence to stand up before the jury and examine his first witness in a courtroom. The first lesson Logan learned was to work hard as you can preparing so you don’t need to be fast on your feet in a courtroom. I told him my father’s airplane, N75 Juliet Gulf, had a plaque on the control panel, “The superior pilot uses his superior judgment to keep out of situations where he needs his superior skills.” At one time during Logan’s examination of the officer, I glanced over at the judge, an old friend of mine, and caught her smiling at me as I was smiling with pride how well Logan was doing. Still, no matter how good a job you do preparing, direct examination always comes off flat after the defense attorney beats up your witness on cross examination.
To make matter worse, in this case I had to call the owner of the company as my witness to establish my case for negligent entrustment. That meant her lawyer would get her on “cross” and could ask her leading questions. Her lawyer ran with the ball I’d given him putting his whole case in through her. Then he did what he thought was the smart thing and rested his case without calling any additional witnesses for me to cross examine.
The judge called the lawyers back into chambers for a charge/arm twisting conference. The Judge bluntly said she thought the case was either going to turn out to be a big fat zero or a big fat verdict, she didn’t’ know which, and encouraged the parties consider a settlement. The bailiff’s thought I ‘d proven the company’s employee was driving the SUV but half of them thought he’d stolen it so the company shouldn’t be responsible. We told the judge we’d accept $60,000. After about a half hour, the defense lawyer said the best he could do was to get the company to keep their mediation offer of $30,000 on the table. “Okay,” the judge sighed, “then we’ll argue and charge in the morning.”
A lawyer has lots of time to craft an opening statement in every case but rarely has the same luxury when it comes time for closing argument. The judge cut us a huge break giving us until the morning to do our closing argument. I decided to let Logan do the first closing. He was nervous as a cat in a dog pound. I’m sure there are as many ways as there are lawyers to prepare for a closing argument, but I’ve always found the best way is to bounce ideas back and forth off your co-counsel, picking out the good ones, and tossing the duds. Once I got Logan loosened up, he did great with the back and forth.
He came up with a very creative idea how to frame our his arguments in his opening on the facts and law. A jury’s job is to find what’s more likely true than not true. Logan came up with the idea of contrasting the points we raised against the points opposing counsel raised. With his hands stretched out like the scales of justice, Logan would rhetorically ask, “Is it more likely true the owner’s husband didn’t report the vehicle was stolen to the police or as he said that the three police officers he reported it to just ignored him and never filled out a report?” Pretty insightful for a novice trial lawyer. He did this over and over with each point in contention. What do you know, Logan taught me a new trial trick.
But we were still struggling how to overcome opposing counsel’s argument the employee clocked out three hours before the collision occurred. Opposing counsel carefully laid out this argument during the testimony of the owner who said they had a state-of-the-art computerized time keeping system. A system that required an employee to be present on their property and logged into their wi-fi network to clock in or out. Fool proof. Well, it seems I for one was just fool enough to have fallen for this argument. Here’s where Logan really shined and saved the case. Logan piped up, “Dad, this is BS. I worked at a place that had the same kind of system and me and everybody else could log on and clock out from virtually anywhere. Not only that,” he added, ”the boss knew it and would regularly log on to change our entries to prevent what he called ‘abuse of the system.’”
We pulled out the time record they were relying on and, WHOA, what did we discover? Way over in the last column to the right side of the row on the computer printout that said our client clocked out three houses before the wreck was an entry that said, “manual edit.” I’d have never thought to look if it hadn’t been for Logan. Logan had found the smoking gun that changed everything. They hadn’t produced whoever it was who edited the entry to explain how or why it had been edited. They didn’t have any evidence he’d clocked out that night three hours before the collision.
I got to teach Logan perhaps the most valuable lesson of the trial. You see, the plaintiff gets to go first in closing arguments, then the opposing counsel get to argue, and, finally, the plaintiff gets the last argument. The lesson he had to learn was, if you have a killer argument, you need to hold it back until your final argument so opposing counsel doesn’t get a chance to try and explain it away. It was hard lesson for Logan because he was making the first argument and wouldn’t be able to tell the jury about the smoking gun he’d found.
In the morning, Logan, stood before the jury for his first time to make a closing argument. Sure, he was nervous and stiff, at least until he got going. Uncomfortable having to read his argument but too unsure of himself not to. He did great with his which is more true, than not true, skillfully highlighting the weaknesses in opposing counsel’s so called facts. When Logan finished, opposing counsel stood up and couldn’t have fallen into the trap we’d set for him than if he’d jumped into the Grand Canyon. He got up on his high horse and pranced around in front of the jury waving the computer printout. “Ladies and gentlemen, what better evidence could there possibly be that Brandon Daniels was no longer working for the event company than he clocked out THREE HOURS before this wreck ever occurred.” Just so the jury wouldn’t’ forget, he went into detail repeating all the testimony about the infallible computerized time clock system. After that he apologized saying he almost hated to waste the juror’s time discussing damages but couldn’t help nickel and diming the damages, reminding the jury several times he already had a broken neck, and snidely commenting his drywall wages were, well, sketchy at best. He finished with the defense lawyers’ predictable, “We feel bad for his troubles but we’re not responsible.” Before he sat down, he mentioned the Elder Holmes would have the last word and he hoped the jury would stand up for his client and not be swayed by passion or sympathy.
I rose slowly, put my hand my client’s shoulder to reaffirm the connection, and walked to the podium as I quipped, “So now I’m the Elder Mr. Holmes?” That got a good chuckle out of the jury, always a good sign. I used the opening to connect with the older jurors. Say what other lawyers will about not wanting to put old folks on juries, there’s a question the judges ask in jury qualification that goes something like, “If you’re over the age of 65 years and wish to be excused, you can claim an exemption from jury duty.” I’ve noticed none of the older jurors ever ask to be excused. The younger ones on the other hand line up with all manner of excuses to be excused. None of the older jurors asked to be excused from our trial and I was happy to seat an older woman. I figure older women have given birth and raised children and put up with their husband’s shenanigans all their lives giving them just the kind of life experience I want in a juror. So, after the laugh about being the Elder Mr. Holmes, and knowing how moving my client’s testimony was about wanting to attend his granddaughter’s funeral, I opened with, “I’ll tell you one thing I’ve learned in my elder years. There is nothing more precious on God’s green earth than a grandchild.” My woman juror sitting on the back row of the jury almost cried and I knew then I had at least one juror I could count on.
Well, I won’t prolong this story repeating my closing argument verbatim but will say I too reminded the jury, in detail, of all the testimony about the so-called foolproof time clock system. As I spoke, I noticed out the corner of my eye opposing counsel starting to get nervous. I could see him looking around sensing something was coming. I reminded the jury, again in detail, of the argument opposing counsel had made about his irrefutable evidence the employee had clocked out 3 hours before the wreck. I slowly turned and pointed towards Logan as I explained to the jury it was Logan who found what we needed to refute the irrefutable. The jury couldn’t help but see the big smile now on Logan’s face as he beamed with pride. Then I turned back to the jury and dropped the bomb like Slim Pickens in Dr. Strangelove that blew the defense’s case into oblivion. I put the time sheet up on the tv screens all over the courtroom, blew it up big as I could, and pointed out the entry “manual edit.”
The judge’s charge, well, it did seem decidedly more friendly to the plaintiff than before the defense lawyer told her he couldn’t come up with any more money. She gave extra emphasis on the charges dealing with awarding compensation for mental anguish and suffering. Still, as the jury retired to its jury room to begin their deliberations, I felt the butterflies in my stomach. It reminded me to teach Logan, if he ever got to not feeling those butterflies in his stomach in a courtroom, he’d know he was in trouble.
If I told him once, I told he five time, “No matter how this turns out, I’m proud of you for standing up before that jury.” Later, Logan would tell me my telling him that was making him nervous we were going to lose. I’ve waited on I’m sure hundreds of juries over the years and still find it nerve wracking. Waiting on a verdict, Logan and I waited in Washington Park across the street from the courthouse. An hour passed and I told Logan it was a good sign. A jury coming back too quickly is usually a bad sign for the plaintiff. An hour and a half and we got the call. I told Logan once again how proud I was of him no matter how it turned out.
The first hint we weren’t going to lose was when the bailiff waiting at the courtroom door was smiling as we walked up. The bailiffs know better than anybody what the jury’s thinking. The second hint was when the jurors entered the courtroom to deliver their verdict, they were all looking our way, not toward defense counsel. And the third hint was the judge reading both pages of the jury verdict form. If the jurors had answered any of the first questions in the negative, they were told to stop because they’d reached a verdict for the defendant. Questions like “Do you the jury find that the employee of the Defendant was driving the SUV when it hit the utility pole? Yes or No. If your answer is no, stop you have reached a verdict for the defendant.” The big one was the third question at the bottom of the first page of the verdict form. “Do you find the defendant’s employee was acting within the course and scope of his employment in furtherance of the defendant’s business when the SUV hit the utility pole. Yes or No. If you answer is no, stop you have reached a verdict for the defendant.” The judge reading the second page was a big hint. We held our breath and waited, “We the jury find for the plaintiff in the amount of One Hundred and Fifteen Thousand Dollars, actual damages. We the jury find for the plaintiff in the amount of Twenty-five Thousand Dollars punitive damages.” Our client put his head on the table and began crying. Logan told me later he liked the client so much he’d have felt terrible if the verdict had gone the other way. The last lesson I could teach him was to never stop feeling that way about your clients because it will make you work harder preparing for trials.
Logan’s first trial was over, but the celebration would last well into the night. We picked my wife and his fiancée up, or should I say my wife insisted we pick them up so she could be our designated driver. We shared two dozen oysters and chilled shrimp appetizers, the freshest grilled fish, and fixings at one of our favorite seafood haunts as we raised toasts and told the story of our victory.
There’s an important lesson Logan will still have to learn on his own. While there’s no better feeling than winning a big verdict in a hard-fought case, there’s no worse feeling than losing. There’s so much more I wish I had time to teach Logan but, as with everything, you teach your children what you can then you have to let them fly on their own. My mother and father taught me much I hope I have passed on to my children. Sure, Logan’s still green, stiff, and unsure of himself but he’s taken his first steps in his father’s shoes. I always had confidence he would become a good lawyer in his own right. I will treasure the memory of being there with him for his first trial as long as I breath.
trialadvocacy.blog 