One of the best civil defense lawyers I ever tried a case against was Senator Heyward E McDonald. Senator McDonald was discharged from the U.S. Navy after having contracted polio serving in the Korean War. He was awarded a 100% disabled because the disease deprived him of the full use of his legs but learned to walk again using leg braces and crutches and decided to become a lawyer graduating magna cum laude from the University of South Carolina School of Law in 1958. Want to know how good a lawyer he was? Try trying a soft tissue injury wreck case against a older lawyer wobbling around the courtroom on rickety old braces wondering aloud how a stiff neck entitled anyone to monetary damages and see how that turns out for you. He cut my ass more times than I care to remember.
Still, I have to admit outside the courtroom, Senator McDonald was always nice to me. I once ran into him wearing his everyday braces at a Senate reception I attended with my boss, Senator Isadore E. Lourie. He was standing upright and walking around without even the hint of limp. At the reception, he complimented me on a case I’d recently won against him by saying I’d turned chicken shit into chicken salad. I told him I was taught by the Master Salad Maker himself, Jack Swerling.
He asked for the story, so I told him. It was one of the first times I got to watch Jack in action trying a DUI, driving under the influence, case in the Columbia Municipal Court. In those days the breathalyzer machine had an inked needle that rose on a numbered meter after the test was administered. When the test registered its highest number, the officer would press the needle down to mark the result on a green piece of paper that looked like, well, a old analog speedometer on a car. The officer’s reluctance to admit the obvious odometer appearance of the test result on cross examination left cracks in his credibility and Jack moved in for the kill. So, you testified you have to observe the driver for twenty minutes before administering the test? Yes, we examine their mouths, remove any dentures, and observe them for twenty minutes to allow time for any alcohol in the driver’s mouth to evaporate before administering the test. And, why do you do that? So the BA test measures the alcohol in the subject’s blood, not his mouth. And, that’s because the test is testing to see if the driver’s blood alcohol concentration is greater than one percent of one percent, is that right? Yes, one percent of one hundred percent alcohol in the drivers blood. So one percent of one percent, that’s one ten thousandth, do I have the math right? So, let me ask you this, officer, what if the driver just finished eating a chicken salad sandwich and has a big chunk of chicken salad stuck between his teeth soaking up alcohol, how does that effect the BA test result? The officer, not wanting to say he didn’t know, blurted out his trained response, I’m not trained to know how the test works, only how to perform the test. In that moment, I watched Jack Swerling turn courtroom chicken shit into chicken salad and win the case.
It is a vital advocacy skill trial lawyers have to learn. It goes by many names: throwing mud against the wall to see if any sticks, firing every argument hoping one hits the mark, casting about fishing for an argument, or throwing out the kitchen sink looking for any theory that might gain traction. Senator McDonald knew exactly what I was talking about and got a good laugh out of my story. I thanked him for his compliment and told him, any skill I have turning chicken shit into chicken salad is because I was taught by great trial lawyers like himself and Jack Swerling.
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