It’s not every day you get a call from the sheriff but I got one from Sheriff Al Cannon asking me to help a former police officer abandoned by his lawyer the Friday before he was scheduled to begin a wrongful termination trial in Federal Court. It’s hard saying no to the sheriff, so I agreed to see what I could do.
I spoke with the former police officer and learned his lawyer had demanded a ridiculous upfront payment for the trial and, when he couldn’t afford it, the lawyer filed a motion to be relieved as his lawyer. A hearing on the motion was scheduled to be heard that Friday afternoon. I asked him what the case was about and he told me he had been fired by the Charleston Police Department for allegedly associating with a known criminal, but the real reason he was fired was because he refused to lie about drugs having been planted on somebody during a search. Well, now, an honest cop being fired for refusing to lie about planted drugs sounded right up my alley. You’d think I’d have known there was more to the story than what I was being told.
I had never personally appeared before Judge Houck before and entered my appearance at the beginning of the hearing: J. Kevin Holmes, appearing on behalf of the Plaintiff for the purpose of opposing his current counsel’s motion to be relieved and, if that motion is granted, to move for a continuance so I can prepare to represent him at trial. I don’t think Judge Houck even looked up or asked me to bend over before ruling from the bench, “The motion to be relieved is granted. The motion for a continuance is denied. We’ll see you for trial first thing Monday morning counselor.” I was dumbstruck, which is probably a good thing because if I’d have been to talk, I’d probably been held in contempt for uttering a string of profanities the likes of which has never been heard in a courtroom.
The enormity of what I’d gotten myself in was just beginning to seep in as I was walking down the courthouse steps and ran into lawyer Bob Haley coming up the other way. I must have looked shellshocked because Bob asked out of genuine concern if I was okay. Still flustered I blurted it out what had just happened as best I could and to my utter amazement, Bob offered to jump right onto my flaming dirigible and help with the trial.
Bob and I had tried the Columbian dentist case against each other and were both experienced trial attorneys. For those of you who may not be, getting a case ready for trial under normal circumstances is an enormous undertaking. You have to put together your trial notebook starting with jury selection. That requires going over the jury list and the jurors answers to a questionnaire trying to divine who to exclude and who to seat. You have to prepare your pretrial brief giving your version of the facts, identifying legal issues anticipated to arise, who your witnesses will be, and what exhibits you intend to introduce. You have to research and prepare any pretrial motions you’ll want to file. Research and write out the jury instruction you’ll want the judge to charge. Make outlines of the testimony you’ll expect to elicit from each witness. Meet with and prepare your witnesses for their trial testimony. Copy and mark all of the trial exhibits. And, write out your opening statement for the jury. To do all this over the course of one weekend in a case you knew nothing about to start with would take nothing short of a miracle.
Bob and I camped out in my firm’s library and got started reviewing the file the client’s former lawyer had turned over to us. Needless to say, he hadn’t done any of things I just listed to get ready for trial. Remember when I said I should have known there was more to the story than what I had been told? Well, when we read through the file it didn’t take long for Bob and I to discover our client had settled his wrongful termination suit against the City. That’s right, signed a release and settled it. When we confronted him with this rather inconvenient fact, he sheepishly said he only accepted the settlement because he was allowed to resign with no finding misconduct on his part and he’d been offered a job as a deputy with the Sheriff’s Office but that the City had breached the agreement by recommending to the South Carolina Criminal Justice Academy they revoke his certificate needed to be a law enforcement officer in South Carolina. This explained the Sheriff’s interest in the case, but you don’t have to be a legal scholar to figure out its pretty damned hard to sue for wrongful termination from a job you voluntarily resigned from.
Now we realized the case we’d signed up for wouldn’t be about an honest cop fired for refusing to lie about planted drugs, it would be about whether the City fraudulently concealed their intent to recommend his license be suspended to induce the settlement and release. Deepening the legal quicksand we found ourselves in up to our eyeballs, the client’s prior worthless lawyer hadn’t plead fraud in the inducement nor had he conducted any discovery how the City’s recommendation our client’s license be revoked came about.
Bob and I were left grasping for nonexistent straws when something extraordinary happened. Opposing counsel, Carol Ervin, a very seasoned trial attorney called us on the phone. Carol may have been small in stature, but any lawyer dumb enough to underestimate her courtroom prowess would be making huge mistake. She specialized in employment law and was tough as nails. But late that Friday afternoon she called us to let us know she thought Judge Houck’s denial of a continuance was grossly unfair. To the extent ethically possible, she offered to do anything she could to help bring us up to speed for the trial. Truth is Bob and I already knew there wasn’t much she or anybody was going to be able to do to help us out of the impossible situation we found ourselves in but somehow Carol reaching out to us lifted our spirits and gave us the fortitude to hunker down and do our level best as lawyers to turn the chicken shit we’d been handed into chicken salad.
Bob and I spent Friday night hitting the library books looking for cases in which a settlement agreements had been set aside. Each time we found something encouraging further research shot us down. We crashed and burned so many different ways it was probably around two a.m. that Bob and I became giddy and started laughing. Bob came up with the notion we should send Carol copies of the cases we’d found pretending they’d save our asses but mostly just so she’d knew we were working ungodly hours while she was sleeping soundly. Somewhere around three thirty that morning, for reasons vaguely related to the unreal situation we found ourselves in and Dorothy saying, “Toto, I’ve a feeling we’re not in Kansas anymore,” Carol became Dorothy of the Wizard of Oz. I think it was Bob who quoted Dorothy as saying, “Lions, and tigers, and bears, oh my!” when our research ran into another dead end.
Carol picked up on our silliness and called us on Saturday. She wasn’t fooled for a second by our caselaw but was impressed by how much fun Bob and I were having. She liked being compared to Dorthy and, I suspect, started to think of us as the Scarecrow and Lion knowing we both already had heart and courage but were somewhat lacking in brains. It was the first of many phone calls and much laughter we shared over that weekend.
Monday morning came and against all odds Bob and I were ready as anybody could be for trial. I think even Judge Houck felt a little guilty for his Friday ruling and couldn’t help but be impressed by all the hard work Bob and I had put in over the weekend. Of course, that didn’t stop him from cutting us off at the knees every chance he got and directing a verdict in favor of the City at the close of our case. We were exhausted but held our heads high leaving the courthouse that afternoon knowing we’d done our best to help an honest cop whose worthless lawyer had him stranded on the eve of trial.
We didn’t win the case but our client made out okay. He became a private investigator for one of South Carolina’s premier criminal defense attorneys who regularly stuck it to the City Police Department that had treated him so unfairly. I don’t know for certain but I’d wager he made twice as much as a private investigator than he ever would have made as a Sheriff’s deputy. And me, who had more fun practicing law than almost any lawyer I ever knew, never had more fun winning a case with another lawyer than I had losing the case with Bob. If there’s a higher compliment one trial lawyer can pay another, I don’t know what it is. And we made a friend of Carol Ervin. Bob and I went down to Bob Ellis shoe store on King Street and bought her a pair of woman’s shoes we painstakingly glued ruby red sequins to that we gave to her as present to remember our trial by.
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