Can We Award More Than He Asked for?

Charles S. Goldberg, Esquire

Ask the average person what they think of lawyers, they’ll say lawyers are a bunch of lying, cheating, backstabbing sons-of-bitches. Ask those same people what kind of lawyer they’d want if they were in a jam, and they’ll say a lying, cheating, backstabbing son-of-a-bitch. This says more about the public perception of lawyers than it does about what it takes to make a really good one, the kind of lawyer you’d actually need if you ever found yourself in an actual jam. It was my privilege to practice law with just such a lawyer, Charles S. Goldberg, Charlie to everyone who knew him. He was universally recognized as the nicest lawyer anybody ever met. But that monicker might lead you to think he must have been a pushover. Nothing could be further from the truth. What his fellow lawyers meant by calling him nice was that he treated everybody with respect, never felt the need to berate or belittle anybody, upheld the profession’s highest ideals of honesty and integrity, and always kept his word. He was one of the best lawyers I ever had the pleasure to try a case with.

Charlie’s client in the case we tried together was the mother of a special education student enrolled in school in a neighboring county. The girl said the “F” word in class causing the teacher and teacher’s aide to march her to the lavatory and wash her mouth out with school soap. This freaked the poor girl out so much, she screamed the ‘F” word repeatedly and as loud as she could when they brought her back to the classroom. So, they did it again. This time the girl had a life-threatening allergic reaction, called anaphylaxis, where her airways constricted due to swelling and she couldn’t breathe. She thankfully recovered but the school called her mother saying she had to be picked up and taken home.

The girl was hysterical when the mother arrived at the school to pick her up but the school refused to say what happened. Her mother finally calmed the girl down enough to find out what happened and immediately took her to her pediatrician’s office. Fortunately the physician found no permanent physical injury. The emotional harm, however, was such the girl was unable to return to the teacher’s class. When the school refused to do anything about what happened, the mother turned to Charlie for help.

The incident offended Charlie’s sense of justice, so he wrote a sternly worded letter to the school board demanding an investigation and disciplinary action hoping that would be the end of it. The school board’s attorney wrote back, however,  claiming an investigation had already been done and had determined saying the “F” word in class, even by a special needs child, violated the school’s rules and disrupted the class justifying the teachers’ actions. Their lawyer probably figured no lawyer would file a lawsuit in a case involving only an $80.00 pediatrician bill with no permanent injury but Charlie wasn’t just any lawyer. Charlie didn’t take cases based on how much money they were worth, he took cases because his client needed help. He was undeterred by the school board’s letter and filed suit under the Tort Claims Act which allows suits against governmental agencies but caps compensatory damages and prohibits punitive damages. His case slowly worked its way up the trial roster and, when it was getting close to trial, Charlie asked me if I’d sit second chair.

We lucked up and drew Judge Ernest Finney, who would later become Chief Justice of the South Carolina Supreme Court, as our trial judge. Judge Finney, like all judges, did his best to get the case settled but the school’s lawyer smugly refused the judge’s request to discuss settlement. I noticed Judge Finney lower and shake his head when he did, as if to say, okay, you asked for it. And so, the trial began.

Like all trials it began with jury selection. I asked Charlie what kind of jurors he wanted and he laughed saying the right question a trial lawyer needs to ask is what kind of jurors don’t you want. He said before lawyers waste a whole lot of time and money trying to psych out who will be good jurors when they should be worrying about excluding the potential jurors you know will be bad ones. Charlie didn’t want teachers or people who had teachers in their  families on our jury. We only had so many strikes and burned them up striking teachers. That still left us with three jurors with teachers in their families. I was concerned but Charlie just said we’d just have to tread lightly with the defendant teachers. I didn’t know then treading lightly was Charlie Goldberg’s specialty.

In his opening statement Charlie stuck to the facts figuring they were enough without having to embellish them with unnecessary legalese. The defense lawyer, on the other hand, laid it on thick. He fawned over the teacher and her aide sitting at the defense table all dressed up like twin Little Bo Peeps in high collar, white shirts and prim and proper dark sweaters and skirts. He played the sympathy card bemoaning the difficult jobs teachers have controlling unruly students for the meager pay they recieve. I thought Charlie should object to the obvious appeal for sympathy, but he let it pass. The defense lawyer went on and appeared incensed as he concluded his opening by blaming the whole incident on the wretched, foul-mouthed student who got what she deserved. I tried to read the jury following opening statements but they all sat in the jury box stone faced like statutes giving no indication of their feelings.

The Plaintiff calls witnesses first in a trial and Charlie called the girl’s mother. She testified her daughter had always been a slow learner. She testified about never having a chance to get an education herself which made her  struggle twice as hard to see that her daughter got the best education possible. How she fought to get her daughter into special education classes while at the same time fighting to have her mainstreamed when feasible so she would have as close to a normal a school experience as possible. She testified about the school first stonewalling her about what happened and then refusing to take any action when confronted with the truth. Charlie had her testify about the $80.00 bill she received from her pediatrician and proceeded to introduce it into evidence with as much formality as if it was an $80,000.00 bill. He carried the bill up to the court reporter and asked that it be marked as Plaintiff’s exhibit A. He carried the marked bill over to his client sitting on the witness stand, and said let me show you what I’ve marked as Plaintiff’s exhibit A, can you identify what it is? The mother said yes. Is this a true and correct copy of the bill you received from your pediatrician for treatment he provided your daughter following the incident at school? Yes, it was. Charlie carried the now authenticated bill over to the defense table and showed it to defense counsel. When counsel nodded his assent, Charlie announced, your Honor, I’d like to offer Plaintiff’s Exhibit A into evidence, without objection. Charlie in his quiet way had turned the weakest link in his evience into a weapon he would later use. The mother finished her testimony by thanking God her daughter hadn’t suffered any permanent injuries but said how it set her daughter back, made her afraid to go back to school, or to try streamlining again. She finished with saying something needed to be done so what happened to her daughter never happened again to any other student. The mother’s testimony was as simple as it was believable.

The defense lawyer on cross-examination hammered away about her daughter using the “F” word in a classroom. Did she learn such language at home? Does she allow her children to use language like that in her home? Wouldn’t she agree the use of such language in class should be punished? You don’t claim these dedicated young teachers intentionally harmed your daughter, do you? Well, I don’t think so, no, she stammered. He thought he’d slammed the door shut on her case when got her to admit her daughter’s allergic reaction was probably an unintentional accident. He thanked the mother and sat down. Charlie didn’t attempt any redirect and called the girl’s pediatrician to the stand. He testified he was outraged by what the teachers had done, not once, but twice. He said it was lucky they hadn’t killed the girl. Defense counsel blunted the good doctor’s testimony on cross-examination getting him to admit, not only hadn’t the teachers killed the girl, they hadn’t even caused any permanent physical injury.

Charlie rested his case and the defense lawyer moved for what’s called a directed verdict on the dubious ground that, since teachers have “implied consent” to touch students, in the absence of any malice or intent to cause physical harm, no cognizable wrong had been committed. Judge Finney denied the motion noting the teachers washed the girl’s mouth with detergent out not once, but twice, making the question of malice a question  of fact for the jury to decide.

It was the defense lawyer’s turn to call witnesses. He confidently called the teacher. Her direct examination was flawless. Never once did she fumble for an answer. She didn’t deny the incident occurred but pleaded she was only trying to keep  order in her classroom and that the girl’s allergic reaction was an unexpected accident. Her description of her love of teaching and denial she would ever intentionally hurt any of her students tugged on everybodies heartstrings. He confidently turned the teacher over for cross-examination. It was time for Charlie to tread lightly.

Charlie got up and began his cross-examination by politely probing the girl’s status as a special education student. He got the teacher to admit the girl was a special education student but she denied knowing the nature or severity of the girl’s  condition. Wouldn’t you want to know as much as you could about a special needs child in your classroom? I’m not trained to be a special ed teacher and wouldn’t be qualified to make a diagnosis was all he could get out of the teacher. Charlie didn’t get flustered and asked wasn’t the purpose of the mainstreaming program  to give special needs children a more normal high school experience? The teacher admitted that was true, so Charlie asked if the teacher supported mainstreaming the girl into her classes? And just like that the first crack in the carefully constructed façade of a kindly young teacher appeared when she became frustrated having to answer a question she hadn’t been prepared for. Er, a, well, like I said I don’t have training how to deal with students like her and, er, a, well special needs students like her can be disruptive in class. Try as hard as she could she couldn’t sugar coat her obvious dislike for the program and the student. Charlie probably shouldn’t have but asked if the girl had been disruptive in class before this incident. The teacher perked up to be back on prepared ground, so prepared she pulled from her pocket a typewritten summary of all the times the girl had disrupted her class. The defense lawyer sat silently at his desk with a Cheshire Cat grin on his face thinking the floor had been pulled out from under his case with Charlie falling through his carefully constructed trapdoor.

Most lawyers would have thrown a hissy fit objecting they’d never seen this summary before but not Charlie. He politely asked the teacher if he could see the summary. He took the summary from the teacher and his time reviewing it while the judge and jury waited patiently for Charlie to continue. Charlie surprised everyone by seeming to comment how nice, neat, and thorough her typewritten summary appeared to be. He then asked if the teacher  kept records on all her students in such a nice, neat, and typewritten fashion? The teacher tensed knowing she didn’t. Being on unfamiliar ground again she said the first thing that came into her head, no, she kept handwritten notes about everything that happened in her classroom but added the reason for the typewritten notes was she’d  gone back over her contempteraneous handwritten notes and typed them up so they’d be easier for the jury to read. Charlie smiled, as if to say how thoughtful of you, before asking where the original, contemporaneous handwritten notes were she kept of what happened in her classroom? She hesitated again frantically trying to remember what was in the notes. She looked desperately toward her lawyer for help, but he avoided eye contact.   Finally she said they were at her home. Charlie stepped back, turned to the judge, and simply said he had a matter he’d  like to take up with him.

Judge Finney noted it was getting near the lunch hour so he dismissed the jury telling them to be back at two o’clock. This would have made for an unusually long two hour lunch break. Charlie never had to say a word. As soon as the jury cleared the courtroom, Judge Finney said he was not only ordering the teacher to produce the contemptuous notes, he was ordering the Sheriff’s Deputy assigned for court security to take her home in his cruiser, retrieve the contemporaneous notes, and bring them both right back to the courthouse.

The first thing Charlie did when the trial resumed was remind the teacher she said she kept notes on everything that happened in her classroom, isn’t that what you said? Er, a, well yes the teacher admitted. Looking through these notes can you tell me why they all appear to be about my client? Er, a, well she was part of the mainstreaming program and I instructed my aide to write down everything she did. Charlie started picking out individual notes. Notes about her appearance, the buttons on her blouse being misaligned, her socks didn’t match, her shirt tail was out. Notes about her fidgeting, looking round, or daydreaming during class. Notes on her childlike handwriting, misspelled words, and incomplete sentences in her homework. Another lawyer would have hammered away that the teacher was looking for any reason to get the girl thrown out of her class but Charlie knew the jury could figure that out all on their own. Charlie wasn’t about to give the teacher the chance to repeat the disruptions documented in her typewritten summary and zeroed in on one particular handwritten incident omitted from the typewritten summary she’d earlier presented.

It says here this one day, the girl didn’t show up for your class, do you see that entry? Yes. And I see you marked her absence as unexcused , do you see that? Er, a, well yes. Did you report her absence to the office? Er, a, well no, it wasn’t the only time she’d gone missing. Tell us on this occasion how long was she missing? I’m not sure, the office called me before the class ended to ask if she was in my class. I told them she wasn’t. And what does your aide’s handwritten note say about where she was found? Down the street from the school, off school property, at a candy store all by herself. Did a young special needs girl going missing, leaving school property, and being found at a candy store down the street disrupt your class?  Er, a, well, yeah I guess it did. Did you include that disruption on your typewritten list of disruptions? The teacher’s no was barely audible but spoke volumes.

I don’t remember much about the rest of the trial because, really, it was over already. Charlie chose not to question the poor teacher’s aide because it was obvious to everyone that the poor girl felt ashamed of her role in the affair and she was only doing what the teacher told her to. The defense lawyer gave up and rested his case. All that was left was to argue and charge.

In his first closing argument Charlie never raised his voice. He never belittled or berated the teacher. He didn’t spend a lot of time telling the jurors what they already knew. He thanked them for their service and asked them to return a verdict for the amount of actual damages allowed by the statute. The defense lawyer sensed the jury had turned against him and, without actually admitting liability, changed tactics and begged the jury to be reasonable in awarding damages. He should have stopped there but couldn’t help himself and finished up by commented about there only being one bill for $80.00 and no permanent harm. He left the bill in plain sight in the middle of the exhibit table. Charlie got to argue last and it was time for him to use that bill as a weapon. He walked over and turned the exhibit face down and moved it off to the side before turning back to the jury and saying in his respectful voice this case was about more than an $80.00 doctor’s bill. What the teacher did caused great and lasting emotional damage to this already vulnerable young girl. It made her afraid of school and deprived her of the chance to be mainstreamed. It left emotional scars that will never heal. Charlie thanlked the jury and sat down.

The judge charged the law with perhaps just a touch more emphasis on the damages not being limited to physical injury than normal. It was time for the jury to have the last say. Charlie and I hadn’t waited long before we were told the jury had a question.

Can we award more than he asked for?