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.
trialadvocacy.blog 