Kale Alexander played football for the Carolina Gamecocks back in the days when they wore leather helmets. He was still a mountain of a man in his sixties when I met him. When he stood up in a courtroom, everybody took notice. He was best known for winning criminal cases knowing little, if anything, about his client or the facts before the trial started. Except for witnesses he chewed up and spit out on cross examination, he was jovial and friendly to everybody in the courtroom, even young lawyers like me sent down to the courthouse for the first time to cover a criminal docket sounding.

        You quickly learn lawyers spend a good deal of their time waiting in courtrooms for whatever is supposed to happen to happen. That’s when lawyers crack jokes and poke fun at each other to pass the time. Mr. Alexander tagged me right off as a newbie lawyer and loudly pretended to be impressed with the new briefcase my mother had given me when I became one. He made a huge production out of my actually having a printed copy of the docket we were sounding, an actual 8 by 11 yellow legal pad, and an official copy of the South Carolina Rule book, which he grabbed and held up for everyone to see. When he asked what was in it, I sheepishly said it had the Court Rules and Rules of Evidence in it. He laughed and said out loud for everyone to hear, “You don’t need a book to explain the rules of evidence to you, I’ll tell everything you need to know” to me and all the other lawyers standing within earshot.

        The rules of evidence are like playing football, he began in all seriousness. You line up on the ball and get down in your stance. You look the player across the line from you right in the eye and tell him, when the ball is hiked, I’m coming over there and knock you down and, when your down I’m kneeing you right in the groin. He paused before continuing, and said you’d better do exactly that when the ball is hiked. Now, when you line up again, and get down in your stance, you need to tell that guy across the line you’re going to do the same thing to him again. And, by God, knowing the guy’s pissed at you for the first time, you’d better muster every once of strength you have so you can do just that. Mr. Alexander stared off with a smile on his face as if remembering having done this on the playing field in his glory days before refocusing and saying, now, pay attention, because here’s where the rules part comes in. Before you line up the third time, you get over next to the down judge, and tell him, listen here, Ref, keep an eye on that guy across the line from me, he’s playing dirty.

        And, with that, he laughed a great big laugh, and patted me on the back with his enormous hand almost knocking me over. In that one conversation waiting for the roster sounding to start, I learned more about the Rules of Evidence than I had in three years of law school.

Eugene David Sinclair, Jr. v. The National Lampoon, Inc., 432 F. Supp 1097 (D.C.S.C., 1977)

Eugene David Sinclair was a midget, not just any midget, a munchkin in the movie, The Wizard of Oz, released in 1939. When World War II broke out, he proudly served his country building naval warships at the Charleston Naval Shipyard. In 1977 the National Lampoon magazine decided to publish a spoof of the Life magazines p[ublished during the war and included a photograph of Mr. Sinclair working at the shipyard. The caption under his picture said he could climb into tight spaces and perform welding jobs the other shipyard workers couldn’t. What the editors didn’t count on was Mr. Sinclair was a devotely religious man who would object to his photograph being published in what he considered to be a pornographic New York magazine.

I was still a brand new lawyer, barely two years out of law school, when a senior partner in the law firm where I was working took on Mr. Sinclair’s case against the The National Lampoon magazine. The problem was the partner was stumped as to what cause of action he could bring on Mr. Sinclair behaft since, what the magazine said about him, was true and truth is an absolute defense to a cause of action for defamation. Moreover, despite Mr. Sinclair’s personal feelings, the National Lampoon magazine could hardly be called pornographic and was constitutionally protected as parody and satire under the First Amendment to the United States Constitution I was tasked with finding find a way around the legal obstacles to bringing an action against the magazine in South Carolina. 

My research soon narrowed down the options to the relatively new cause of action for invasion of privacy. Relatively new because neither the Federal Constitution nor its Bill of Rights recognized a right of privacy and it wasn’t until 1965 when two great legal minds, Supreme Court Justices Louis Brandeis and William O. Douglas, conjured a right of privacy from the “penumbra” of other rights expressly granted by the other provisions of the constitution. It was out of the this same right of privacy that the rights to birth control, interracial marriage, abortion, and same sex marriage would be recognized. And, best of all, unlike defamation, truth was not a defense to an invasion of privacy.

I dug deeper and learned the law recognizes four different kinds of invasion of privacy: the physical intrusion or spying upon a person’s private space, the public disclosure of private facts or confidential information, publicity that places a person in a “false light,” and the appropriation of a person’s name or likeness for financial gain. I drafted a complaint alleging the National Lampoon magazine had appropriated Mr. Sinclair’s name and likeness for financial gain and held him up to a “false light” subjecting him to embarrassment and ridicule. The complaint was filed in the United States District Court for the District of South Carolina and assigned to the Honorable Robert W. Hemphill.

The magazine’s New York law firm responded to our complaint with a sternly worded letter threatening legal Armageddon unless we immediately dismissed it. I sat in the senior partner’s office while he called the New York lawyer who wrote the threatening letter. With a wink of his eye and smile on his face, he feigned how impressed he was that the New York lawyer he was speaking with had made it halfway up the third column of lawyers on the firm’s embossed letterhead. The partner in my firm offered to discuss settlement but declined capitulation. So the magazine promptly hired prominent local counsel and filed a motion to dismiss our case for lack of jurisdiction.

            It was back to the library for me researching the law on jurisdiction and writing our brief in opposition to the New York law firm’s motion to dismiss. They argued the magazine was a New York corporation, headquartered in New York City, and had no offices or employees in the State of South Carolina. They claimed the magazine was written in New York, published in Kansas City, and sold nationally through an independent distributer. In the parlance of the law, the motion to dismiss claimed the magazine lacked sufficient minimum contacts to be sued in South Carolina and Mr. Sinclair should be required to bring his lawsuit against the magazine in New York City. Their recitation of the facts and the law made their arguments sound rock solid and insurmountable.

            I discovered the magazine published information about its circulation on the page nobody reads in a magazine stating who owns the publication. I drafted targeted questions called interrogatories to the magazine asking for more detailed information about their sales in South Carolina. Based on the information we received, I was able to counter their arguments by showing the magazine had over 800 monthly subscribers in and sold over 4,000 monthly copies in South Carolina. That between the original issue and a “best of” compilation later published, the article about Mr. Sinclair was distributed at least 6800 times in South Carolina. I argued a magazine should be treated no different than the seller of a defective product which causes harm in South Carolina and, since the harm to Mr. Sinclair occurred in South Carolina, the Federal Court had jurisdiction to hear his case. Judge Hemphill agreed and denied the motion to dismiss. Very few District Court decisions get selected for publication but his was and still stands today as precedent a magazine can be sued where ever it is sold and causes harm. Having found he had jurisdiction, Judge Hemphill scheduled a trial to be held in Winnsboro, South Carolina the following fall.

            For those unfamiliar with the geography of South Carolina, Winnsboro is the county seat of Fairfield County in the upstate. In 1977 it had a whopping population of 3,400. In just about every way imaginable, it was about as far away from New York City as you can get in these United States. For obscure historical reasons dating back to the Revolutionary War, there is a federal courthouse located on the corner of Washington and Congress Streets in Winnsboro that was built in 1822 by the famous architect, Robert Mills, who also built the Washington Monument. The courthouse has a classical columned front, with two curved staircases leading up to the portico and courtroom entrance on the second floor. It was here, in the Winnsboro National Historical courthouse that Mr. Sinclair would get his day in court.

            At the beginning of all trials lawyers from both sides conduct voir dire questioning potential jurors to discover any possible prejudices they may have against their clients. One question the magazine’s lawyers asked was whether the late-night tv show, Saturday Night Live, would prejudice any of the jurors. In the fall of 1977, Saturday Night Live starred comedians Dan Ackroyd, John Belushi, Bill Murray, Gilda Radner, and Jane Curtin was just beginning its third season. Lorne Michaels, the publisher of the National Lampoon magazine, was also the producer of Saturday Night Live and was scheduled to be the magazine’s star witness. Much to their lawyer’s dismay the popular Saturday Night Live tv show wasn’t yet broadcast in Winnsboro, Soutrh Carolina. None of the prospective Winnsboro jurors had never heard of Lorne Michaels, Saturday Night Live, or the National Lampoon magazine. The star of the trial wouldn’t be Mr. Michaels after all but would be Mr. Sinclair. Everyone of the jurors had seen the Wizard of Oz but none thought Mr. Sinclair appearing in the movie would influence their decisions.

            As the trial began, the partner in the firm I was working for called Mr. Sinclair’s nephew to testify how he came to see his uncle’s picture in the magazine. He testified he saw it browsing through the magazines in a local drug store’s magazine rack. He thought it was making fun of his uncle he bought a copy and gave it to his uncle. He testified his uncle became upset when he saw his picture in the magazine. The partner introduced copies of the original magazine and “best of” edition, the evidence about its circulation in South Carolina, and pointed out the price as $4.49 listed on the cover. He made note sales of the magazine made National Lampoon $34,000.00 in South Carolina and $4,500,000 nationally. Having laid the ground work, and piqued everyone’s interest, he then called Mr. Sinclair to the witness stand. The jurors sat upright in their jury box to get a good look at Mr. Sinclair as he walked to the witness stand. He was dressed in a suit and tie, more Sunday meeting than business, and wore his gray hair and wrinkles as signs of his hard, working class life. Sitting in the witness box, his feet didn’t touch the floor and, as he testified, swung back and forth like a child’s. His voice was a little high pitched, his facial expressions and hand gestures were animated, but not distractingly so. He captured everybody’s attention.

He testified he was paid $50.00 a week to appear in the Wizard of Oz but found the publicity and attention he received afterward to be too much. He testified he chose to leave the fleeting fame of the Wizard of Oz behind so he could lead a normal life and raise a family here in South Carolina. What brought the biggest smile to his face, and to the faces of the jurors, was his testimony about his family, all of whom were of normal size and sat in the front row of the courtroom. They were all ordinary, hardworking people, just like the jurors. He testified he was too old to serve in the Army when World War II broke out, so he proudly served his country in the Charleston Naval Shipyard building warships. He testified he did indeed weld in confined spaces, a job he described as hot, hard, and dangerous. He offered to show the scars he still carried from burning drips of burning metal but Judge Hemphill told him that wouldn’t be necessary. The jurors loved everything about him.

On cross examination Mr. Sinclair pretty much held his own. He never got angry or argumentative with the magazine’s lawyer but he did have trouble with one line of questioning. When asked which of the articles in the magazine he found to be pornographic, he admitted he never actually read the magazine and testified, just looking at the pictures, was enough for him. When asked who, aside from his nephew, had seen or read the magazine, he couldn’t name a single person.

 When it was the magazine’s turn to present witnesses, their lawyer couldn’t help himself and called Lorne Michaels to testify and he turned out to be every bit the New York City howman. His posture, enunciation, and appearance were groomed perfection. The problem was so was his testimony, which came across as rehearsed and staged. The thrust of his testimony was the First Amendment protected free speech, parody, and satire. The lawyer apparently forgot to mention to Mr. Michaels that Saturday Night Live wasn’t broadcast in South Carolina, leaving Mr. Michael’s itching to tell the jury he produced the hottest, new late-night tv comedy show. In a non-responsive answer to a different question, Mr. Michaels announced to the jury he produced Saturday Night Live with his voice raising in a crescendo as he fully expecting the jurors to be suitably impressed. His ear to ear smile receded to a frown when his testimony was met with the juror’s stone faces and silence in the courtroom.

            Like Mr. Sinclair, for the most part Mr. Michael’s held his own on cross-examination answering most questions with ease. My partner did a good job getting Mr. Michaels to commit to the idea the reason the First Amendment protects parody and satire was because parody and satire use humor to address serious public issues. Having boxed himself in, he soon found himself struggling to find words explaining what was funny about Mr. Sinclair serving his country during World War II. Judge Hemphill, a veteran of the war himself, clearly wasn’t amused. Then he was asked about one article in particular with the headline, Use Your Head On The Highway, Don’t Give It, thee partner held the accompanying pictures up in an open magazine before the jury showing a young woman leaning over a smiling driver’s lap followed by a picture of horrific wreckage strewn down the highway. “What’s funny about that?” the lawyer asked leaving Mr. Michael’s stammering until Judge Hemphill, not amused with that either, ruled sua sponte the question was inadmissible. It was too late and obvious to everyone the Winnsboro jury didn’t find the article funny in the slightest. The problem was Judge Hemphill wasn’t about to let the jury return a verdict based on passion or prejudice. 

To limit the amount of damages the jury could award, Judge Hemphill dismissed our cause of action for false light invasion of privacy and, with it, Mr. Sinclair’s right to collect damages for embarrassment or wounded feelings, and his right to punitive dames to punish the magazine. He limited us to our cause of action for the appropriation of Mr. Sinclair’s likeness for financial gain. Based on Mr. Sinclair having only been paid $50 a week for his appearance as a munchkin and only 6.800 copies of the magazine having been sold in South Carolina, the jury awarded Mr. Sinclair actual economic damages of $6,800.00, one dollar for every magazine sold in the state. It may not seem like much, but Mr. Sinclair felt vindicated.

I don’t claim this was one of my cases. I was just an associate asked to do legal research. I wasn’t asked to sit second chair during the trial or to argue any points of law with the Judge. Still, it was my idea to bring Mr. Sinclair’s case as an invasion of privacy that won the day. It was my research and brief that withstood the magazine’s motion to dismiss for lack of jurisdiction. Most important of all, I learned I could represent the little guy and go toe to toe with any big league lawyer from New York City and hold my own.  

One of the best gigs a lawyer can land is being local counsel for an out-of-state big shot lawyer representing a fat cat criminal defendant. You see, in order for an out-of-state lawyers to represent clients in South Carolina, they have to hire local counsel and apply to the Court to be admitted pro hac vice which, I’m pretty sure, is Latin for pay the price. Although theoretically obligating you to try the case if out-of-state counsel doesn’t show up, really all the local lawyer has do is show up to collect his fee. Well, that and provide local entertainment during off hours, knowing the best restaurants and bars, arranging transportation, and planning excursions on the out-of-state lawyer’s tab, or his client’s tab, or whoever’s paying his client’s tab. Oh, that and you have to laugh at all the out-of-state lawyer’s jokes and be suitably impressed by his tales of courtroom prowess and financial wealth.

            At least that’s the way I felt about being hired to be local counsel until I was hired to be local counsel for a lawyer representing a witness called to testify before a Federal grand jury investigating union corruption. Waiting for their flight to arrive in Charleston, I thought about the $5,000.00 fee I’d already been paid for a quick in and out appearance before the grand jury. Then I thought about the even fatter fee I’d be paid for the trial if the defendant was indicted. The thought I was rooting against my own client never crossed my mind.

            The lawyer called my cell phone to say they’d picked up their bags. I described my car and told them I’d pick them up out front of the baggage claim area. I spotted them in the crowd as I was pulling up but confused the client for the lawyer. The person I thought was the lawyer was older, with a squared off, hardened look about him, dressed casually wearing a jacket and slacks. I called him by the lawyer’s name as I opened the trunk of my car and reached for his bag but he turned to his right, towards the younger man dressed in an open collar shirt, shorts, and flip flops appearing like a tourist on vacation. He handed me his bag and introduced himself and his client. I worried I had gotten off on the wrong foot.

            We exchanged pleasantries during the drive into downtown Charleston from the airport. I mentioned I had a boat waiting to take them on a harbor tour before we ate dinner at a creek side restaurant. The lawyer smiled and I stopped worrying. We pulled up to the Mills House Hotel conveniently located about a half block from my office and the Federal courthouse. I waited in the hotel’s Best Friends Bar while they checked in. Thinking on it, I realized the client hadn’t said a word but shrugged it off to him worrying about whatever charges he was facing. While I enjoyed a couple of drinks and my good fortune while I was waiting, I called ahead to the marina to make sure the boat was gassed and stocked with a cooler of ice-cold beer ready to go. I offered them drinks when they came down but the lawyer, still smiling, reminded me he was from Harlan County, Kentucky, and said he was anxious to get out on the water on that boat ride I’d mentioned. I cleared the tab and off we went.

            As we drove over the bridge to the marina, I pointed out the sites in the Charleston harbor, the port, the Yorktown WWII aircraft carrier, and way off in the distance, Fort Sumter where the Civil War began. When we arrived at the marina the boat was tied up to the dock ready to go. I jumped in, started her up, untied the ropes and eased out from the dock. I idled into deep water before pushing the throttle up to get the boat on plane. The client sat alone on cooler bench seat ahead of the console while the lawyer and I sat in the bucket seats behind the console and windshield. It wasn’t long before the lawyer asked if he could drive the boat, and I turned the controls over to him. I’d been running at about two-thirds power, but the lawyer opened her up full throttle. I glanced at the client but still couldn’t read if he was having a good time. I didn’t have any trouble reading the lawyer and knew my retainer for trial was as good as in the bag if the client got indicted.

            Before long, the lawyer eased back on the throttle and let the boat settle back into the water at an idle. We sat there enjoying the evening breeze and sun setting purple on the water in the relative quiet. The lawyer thanked me for letting him run the boat and commented about there being no open water like Charleston’s harbor in the mountains where he was from. I asked how he came to live in Kentucky. He laughed and told me he wasn’t what anybody would call law review material in law school, so the public defenders job in Harlan County was the only job he could find. He said as soon as he graduated law school he packed up his car and drove to the heart of Kentucky expecting it to be a steppingstone in his career but, then he paused, smiled, and said he stayed because he fell in love with the mountains and the people who lived there. It was about at then he decided I needed a history lesson and I was glad to listen.

            He began by saying most people know of Bloody Harlan County because of the coal war from the 1930’s but few know the real history. What started out with the mine owners demanding miners shop at the mine owned grocery stores turned ugly when a miner caught shopping somewhere else was fired. The dispute grew to include other demands for more safety in the mines, decent housing, and higher wages but the United Mine Workers union refused to support the miners. That left the owner free to hire scabs and a private militia and left the miners desperate without strike pay. The miner’s blocked the road leading to the mine and the owners organized a relief convoy with a police escort to bring in supplies to feed the scabs. The miners stopped the convoy and a deputy got out to clear the road when a shot rang out. Nobody knew who fired that shot but all hell broke loose. The “war” as it’s been called lasted less than fifteen minutes, over a thousand shots were fired, but only three deputies and one miner were killed. The National Guard was called in to quell the riot, break the strike, and force the miners back to work. He said, in the end, nothing changed in Harlan County.

            But the lawyer wanted me to know things not changing wasn’t necessarily a bad thing. He said the miners caring for each other and their community was something good that never changed. He then told me when he arrived, he was close to shunned as an outsider but slowly earned the respect of the community one client at a time. When his tenure with the PD ended, he hung out a shingle and opened his own law office taking on any case that came his way, often as not for a promise down from a mother he couldn’t refuse. Although no more shots were fired in the war, he said the war never ended. In fact, whether I knew it or not, we were right smack in the middle of that very same war today, .

            I asked him what he meant, and he said he would tell me a story to help me understand. Mining has always been boom or bust, he said. The price of coal goes up and the mine owners make a fortune. Miner’s demand more pay and benefits and threaten strikes. But before long the price of coal drops again, mines close, and miners get laid off. This up and down cycle continued until someone figured out the mines, miners, and utilities would all benefit if the long term price of coal stabilized. The utility companies and mines were willing to enter long term contracts to buy coal at fixed prices but only if the miners would agree to long term contracts fixing wages and benefits. They did, contacts were signed, the market stabilized, and peace reigned for a time in the Kentucky mountains.

            Until vast veins of coal were discovered lying just under the surface in the southwest United States. Coal you didn’t need a skilled miner working half a mile underground to recover. All you needed was a giant steam shovel and you could scoop the coal right out the ground and load it into a rail car. Ship it anywhere in the United States you wanted at a fraction of the cost of Appalachian coal. The utility companies saw potential profits and sought to break the long-term contracts they had profited from for so many years. They filed lawsuits but the Courts ruled the contracts were knowingly entered into for valuable consideration and refused to set the contracts aside.

Needing more direct action, the utility companies got their political cronies to get political prosecutors to open criminal investigations into alleged price fixing, racketeering, and bribery the utilities feigned to have just discovered. Florida was the first state to crank up such an investigation and issued subpoenas to mine owners and union officials threatening prosecution for certain gratituties that may have been exchanged between the contracting parties. Miraculously, the utilities who were into it up to their eyeballs didn’t receive any subpoenas. For the mine owners and union officials who did, the price of a plea bargain to avoid prosecution, huge fines, and possible jail time was to agree to void the long term contracts.

It worked in Florida, so it wasn’t long before the utilities in anti-union South Carolina decided to give the scheme a go. All that was needed was a friendly U.S. Attorney to start threatening prosecution and issuing subpoenas for grand jury testimony . I glanced towards our silent client but he showed no reaction to the lawyert’s story The lawyer conceded, with multimillion dollar contracts being involved, some gratuities may have changed hands from time to time but emphasized it was all just a story.

With the sun setting, we decided it was time for dinner. We tied up to the dock at R.B.’s restaurant on Shem Creek where we enjoyed some of the world’s best fried seafood. Over dinner the lawyer told me stories of his clients and cases back home in Kentucky. Of his escapades representing ordinary folks tangled up in the inept and corrupt Kentucky legal system. In his practice there were no snitches, no cooperating witnesses, and no plea deals. He specialized in plain talking juries and turning prosecutor’s laziness and mistakes into not guilty verdicts for his clienrs. I’ve shared quite a few dinners with out-of-state lawyers, and they’ve always talked about themselves, their courtroom prowess, and their riches. What I noticed was his stories were about his clients. He spoke affectionately of the clients he’d helped with problems big and small. He never once mentioned a big fee he’d been paid or how he’d gotten his name in the newspaper. He was proud of the law he practiced, not the money he’d made. He made me remember why I became a lawyer in the first place. Before I knew it dinner was over we’d become friends. Without thinking, I picked up the tab because he had become my guest. It was late and we were quiet on the ride back into town to the hotel. We agreed to meet at my office in the morning as I dropped them off.

They arrived at my Broad Street office a few minutes before nine. The lawyer was dressed in a suit and tie. There wasn’t any time to discuss the case, but I had no doubt the lawyer had explained the drill to his client. He didn’t have to say anything but, if he did decide to testify, he needed to tell the truth. We lawyers wouldn’t be allowed in the grand jury room during his questioning but would be waiting right here in the waiting room if he had a question. All he had to do was ask to come out to talk with us. We walked the half block to the courthouse and, when we arrived, I told the U.S. Marshals we were there to appear before the grand jury. We were processed through security and instructed to exit the elevators on the mezzanine level where we’d be shown where to wait. And wait we did. They ought to teach a course in law school on waiting so you’ll know to expect it and know they make you wait its so you’ll know who’s in control, feel helpless, and have time to get nervous. I noticed the client didn’t appear nervous in the slightest.

After an hour, as if on cue, the Assistant U.S. Attorney, came out of the grand jury room and called our client’s name as if we weren’t the only people in the waiting room. Our client stood and followed him back into the grand jury room. There is a helpless feeling waiting outside the closed door to the grand jury room. The grand jury is supposed to be check on prosecutorial abuses but, in reality, they are told only what the prosecution wants them to hear, and their verdict is little more than a rubber stamp. If a juror, heaven forbid, should begin asking questions seeking the truth, its immediately called a runaway jury and shut down. Questioning either lasts just a couple of minutes until the witness pleads the Fifth Amendment and refusaes to answer questions because they might incriminate themselves or lasts an hour or two.

It hadn’t been long when the door to the grand jury room burst back open. Out stormed our client followed by a red-faced Assistant U.S. Attorney threatening to have him indicted for obstruction of justice and perjury. To my surprise, our previously stoic client replied in a raised voice, “’Fuck you, you little piss ant. I’m from Harlan County Kentucky and you have no idea who you’re fucking with!” I’m not used to hearing such language in the halls of the Federal courthouse and expected armed marshals to appear at any moment. The lawyer seemed completely unfazed, like this was our legal system at its finest. I hustled them both out of the courthouse as quickly as I could.

On the sidewalk outside the client remained animated and talkative. When the lawyer asked how it went, he laughed and said, “Just like you said it would. When he asked if I was on any drugs or medication that could affect my ability to testify truthfully, just like you said he would, I did what you told me to and told him the truth. The truth about my teenage depression that led to my chronic drug abuse, hospitalizations, and heavy medications before I turned twenty. When he tried to change the subject, I told him to hold on, I wasn’t finished. I told him how I got to feeling better, so I stopped taking my medications which sure enough led to more hospitalizations and more medications. So many medications I can’t remember all their namesbut I began listing them off. What it as called. How many pills or milligrams I was supposed to take everyday and all the side effects they caused. I told him how all the stress and anxiety of my addiction and breakdowns caused me to suffer from chronic illnesses like high blood pressure, diabetes, migraine headaches, and bad nerves all of which required more medications that made me woozy, forgetful, and caused ED. He about jumped into the witness box when I started describing my ED. That’s when I noticed his face was turning red like he was having a coronary and he started yelling at me to get out. You should have seen the looks on the jurors faces as I was leaving the room.” The lawyer laughed aloud, a great big belly laugh, and gave the client a big pat on the back.

I walked them back to the Mills Hotel and offered to give them a ride back to the airport, but they declined saying they’d just grab their bags and a cab to the airport to catch the first flight back home. I thanked the lawyer for the education about Harlan County and about lawyering and made him promise to call me if he ever made it back to town, but I never heard from him again. Still, I think of him often. I imagine him, one of the best lawyers I’ve ever met, still appearing in magistrate’s court on drunk and disorderlies like they were headline murder cases. I imagine him finding a satisfaction practicing law I often yearn for.

I watched for stories about the union corruption investigation in the papers but never saw a word. No indictments were ever issued. There was one story in the local section of the paper about some poor middle level manager at a local utility who had been subpoenaed in the investigation that caught my eye. He had been suspected of being one of the recipients of the gratituties but nobody told him the investigation was just a ruse to break the contracts. It was reported he drove to the power plant on the lake and blew his brains out with a shotgun sitting on the tailgate of his pick-up truck. That and one other story buried on about page five of the paper many months later about questions being raised why a certain politically connected lawyer was paid a $5,000,000.00 for unexplained legal work uncovered during a big rate increase hearing. Nothing further vwas said about either article.

Since then, fracking has made natural gas cheaper than even strip mined coal out west. I suspect that just made the already hard life of the Harlan County miners even harder but, as the Harlan County lawyer taught me, the people who live there have endured worse and still have a quality of life we could all use more of.

I majored in business administration as an undergraduate and assumed I go to work for my father’s company after law school. Imagine my surprise after graduation when I found myself riding around South Carolina with lawyer Jack Swerling trying murder cases. We rode around in his metallic green Lincoln continental, the largest model they ever made, with seats the size of sofas covered in plush green velour. We listened to the King, Elvis, on Jack’s 8 track cassette player. It was the beginning of a completely unexpected forty-six year career as a trial lawyer that spanned thirty-four murder cases. Each case was its own story but the one I want to write about is my favorite. My dream murder case.   

I often wondered how cases found their way to my door. How a mother from New York City a thopusand miles away would call the number to my office. The receptionist buzzed saying, “there’s was a woman on the phone from New York City whose daughter’s in jail charged with murder.” I quickly picked up the extension and spoke to her and just as quickly quickly found out the mother didn’t know anything about the facts of her daughter’s case, just that she was certain her daughter was innocent. The only way I’d be able to find out would be to drive to jail and speak with to her daughter personally. Normally, that would require an upfront fee which I hadn’t been paid but, murder cases being as rare as they are, I decided to take a chance.  

Working your way into the jail to visit an inmate requires patience on a glacial scale. You have to wait in line to speak to the visibly bored guard manning the desk. When you finally reach the front of the line, you have to show the guard your picture ID and bar card for his scrutiny like you’re a teenager trying to buy a six pack of beer. He’ll look up at you when satisfied with your ID and wait for you to tell him the name of the inmate you want to see. Then he’ll pretend not to hear you until you spell your client’s name out for him as he hunts and pecks the inmate’s name into the keyboard of an computer with an antiquated green cathode ray terminal and flashing cursor. If your lucky, your client’s name will pop up on his screen and the guard will tell you to sign the visitors log as he lazily waves you through.

The attorney visitation area is first come, first served, so you hope there’s an open booth or else you’ll have to stand around and wait for another lawyer finish talking to their client. When you’re lucky enough to get a booth, you park yourself in it and wait for the guards to bring your client down from the cell blocks. And you wait, and wait, because transporting inmates for visitation is the last thing on the list of things prison guards do. It comes after mealtime, medical call, shift change, and quelling any disturbance on the cell block. There’s no telling how long it might take for your client to arrive on the other side of the plate glass window in the visitation booth. While you wait you notice the smell of hopelessness and begin to worry it will permanently permeate your hair and clothing. About the time you’ve given up all hope of ever feeling clean again, the guards shuffle your dazed cient into the room on the other side of the plate glass. You point and wait for them to pick up the provided telephone so you can speak to them.

My first impression of the daughter was of a young woman who’d been too scared to sleep for days. Her orange jump suit was crumpled and her hair was as wild as the look in her eyes. I verified I was speaking to the right person and told her I was a lawyer her mother asked to come see her. While that seemed to calm her some, I could tell she remained suspicious of me.

First things first. I gave her the talk every lawyer gives prospective clients when visiting them for the first time in jail. “Don’t talk to the police without me being present. I don’t care what threats or promises they make to try and get you to talk to them, I can’t protect you, if I’m not there.” I explain the importance of never giving details about what happened to a cell mate because, armed with details, snitches can manufacture jailhouse confessions and barter them for leniency in their own cases. “Don’t sign anything without reading it and, if, after you read it, if you’re not 100% sure what it says or what it’s for, don’t sign it.” “Oh, and don’t forget, don’t talk about your case on the phone because all calls in and out of the jail are recorded.”

After my speech, I asked if she had any paperwork from when she was arrested. She said she did and I asked her to hold her papers up to the window so I could read them while we talked. The warrant charged her with murder punishable in South Carolina punishable in one of three ways: the death penalty, life without the possibility of parole, or 30 years in prison of which you have to serve 85%, or 25.5 years, before being eligible for parole. It’s a lawyer’s duty to advise a client of the nature and elements of the offense charged and possible punishment. My doing so only increased this frightened young woman’s anxiety.

Based on the warrant and what she was telling me, I began to piece together what had happened. She stabbed the alleged victim, a young man, to death. The warrant said she stabbed him 28 times, but she couldn’t remember the number. She didn’t know the alleged victim having just met him at a club about an hour before she killed him. She went to the club that night with her boyfriend, but they got into a fight, and he drove off leaving her stranded. The young man saw she was upset and kindly asked if she was alright. He seemed like a nice guy, so she accepted his offer to give her a ride home. He drove a nice car, so she didn’t object when he said he just wanted to run by his house on the way. He lived in a nice house, so she accepted when he invited her inside. She didn’t realize the mistake she’d made until he closed the door behind her, grabbed her, twisted her around by the arm, and pushed her face first into the wall threatening to hurt her real bad if she cried out or resisted. After she nodded accent, he ushered her down the hall to a bedroom where he threw her on the bed, tore her clothes off, and raped her. She was so shocked and scared, she didn’t resist. He finally got off and left her laying terrified on the bed.

Hoping to distract him before he raped her again, she told him she had two mini-bottles of vodka in her purse laying on the floor and suggested they have a drink. He picked her purse up and, sure enough, found the two mini bottles she mentioned. He took both bottles and tossed the purse onto the bed as he twisted off the top of the first bottle and chugged it in one pull. He had no intention of sharing the other bottle and as he was busy twisting the top off it, he didn’t notice as she reached for her purse. As he was chugging the second mini-bottle, she pulled a butterfly knife out of her purse. A butterfly knife hides its stiletto blade between its two handles. You flip the knife in a back and forth motion to open it and expose the blade.

Once opened, she didn’t hesitate to use her knife. She stabbed him furiously until it was he who stopped resisting. She ran from his room, back down the hall, and out his front door. She ran down the street stark naked holding the knife covered in his blood, screaming for somebody to call the police. Somebody did but, when the police arrived and found the bloody body in the bloody bedroom, they couldn’t wrap their minds around the 28 stab wounds. Most of the stab wounds were on the young man’s hands and forearms which the detective described as defensive wounds. I’m no forensic expert, but I had no reason to doubt that’s exactly what they were. The bloody crime scene made the detective ignore her story about what happened and charge her with murder. And, here she was, never having been in trouble before, sitting in jail, telling her story to me through a half inch of plate glass over a plastic telephone.

As rare as murder cases are, a person being accused of murder actually being innocent is a whole higher level of scarcity. I could hardly believe my ears as I found myself listening to a young woman charged with murder who could actually be innocent. A real live, breathing unicorn.

In South Carolina, a person charged with murder has to be brought before a Circuit Court judge to set bail, usually just a formality as bail bonds are rarely given in murder cases. I gathered all the information I needed to file a bond motion and concluded my interview. Still, jaded by my years as a criminal defense lawyer, I couldn’t help but think there had to be more to this story than I was told. I was astonished when I was later able to get a copy of the police incident report and it verified virtually everything my new client had told me.  

As fate would have it, Judge Casey Manning was presiding in General Session court that week. I had no idea how he would rule on a bond motion, but had appeared before him many times and was confident he wouldn’t just rubber stamp the prosecution’s opposition to bail. I didn’t wait for a fee from the young woman’s mother in New York and filed my notice of appearance and bond motion. Judge Manning didn’t wait either and set a hearing for later that week.

Not wanting my client to appear in court looking the way she looked in the jail, I decided to stop by Gwynn’s of Mt. Pleasant department store where a friend who worked there helped me pick out a nice, simple dress for my client  to wear for her bail hearing. Not only hadn’t I been paid, now I was out of pocket the cost of the dress on a gamble because jailers don’t have to let inmates wear street clothes for a hearing before a judge. It’s a legal fiction judges aren’t human beings and won’t be prejudiced when an inmate is brought before them in an orange jump suit, shackles, and rubber sandals. Guards, can become hardened and sticklers for the jailhouse regulations, but they can also sometimes surprise you with simple human kindness. My gamble paid off and the lady guards not only helped my client put on the dress, they helped fix her hair before bringing her out into the courtroom for her bond hearing.

A silence fell over the courtroom as my client was led into the courtroom through the door from the holding cells. All eyes were on her as she walked to the podium in front of the judge where I stood waiting. There was something about her. Something dignified in the way she held her head up as she walked, in the look on her face. She wasn’t beautiful but she was captivating. She smiled when she saw me and her smile spread to everyone in the courtroom including Judge Manning.

Judge Manning ran through the preliminaries asking her name, age, how far she got in school, had she ever been treated for any mental health problems, and was she under the influence of any drugs or alcohol before turning to the offense charged. He asked her if she understood she was charged with murder and what the possible punishment was. Satisfied she was competent and understood the proceedings, Judge Manning turned to the prosecution to tell him about the facts.

I watched as the young duty prosecutor hastily read the warrant and incident report to put together reasons why this young woman needed to remain in custody. He emphasized the seriousness of the offense, the 28 stab wounds, and that she had no family ties to the community as pretty solid reasons to deny bail. I was ready when Judge Manning turned to me and asked if there was anything I’d like to add. I told him the whole story in as much detail as he would allow. I quoted from the police report verbatim about her running down the street calling for someone to call the police for emphasis. As I spoke, I noticed my client and Judge Manning’s eyes were locked on each other. When I exhausted everything I could think to say, it was Judge Manning turn to rule on the bond motion.

My heart sank when he announced he was setting her bond at $50,000.00, then soared back up again as he said the bond would be an unsecured, personal recognizance bond. A PR bond in a murder case is unheard of, but, to be honest, this never was a murder case and Judge Manning saw that right away.

My dream murder case would never again see the inside of a courtroom. It would never generate a line of print in the local newspaper, not so much as a sound bite on the evening news. On closer examination the Solicitor dismissed the case with little prodding from me. After the case was dismissed, I never saw or heard from my client again. My memory of her faded as the months passed until one day, it had to be a year and half later, there was a handwritten envelope in my morning mail from New York City. Inside that envelope was a check for $2,500.00 and a note from the mother thanking me for saving her baby girl’s life.

Needless to say, $2,500.00 is a pittance for representation on a murder charge, but I knew it was more money than the poor mother could afford. I was made by far richer by this one fee than any other fee I ever received. I knew it wasn’t my courtroom prowess or my astute legal arguments that set the young woman free, but I took her case without a thought of the fee I would earn or the publicity I would receive. It was a reaffirmation of everything I went to law school for.

It has been a long and unexpected career as a criminal defense lawyer. What I’ve learned is lawyers who think being a lawyer is a ticket to fortune or fame will never know the far more meaningful reward that comes from helping a deserving client without thought of either. 

My friend, Robert Gasque Howe, Esquire, Bobby as everyone called him, didn’t practice law the way they teach in law school. He played by his own set of rules like as long as you and your client never show up in court at the same time, nothing bad can happen or, if you can get the judge to laugh, he’ll have a hard time sending your client to jail. His weren’t the kind of rules you’d find in any law book, but they served him well enough to make him the Plea King of the Charleston Court of General Sessions. The kind of lawyer you’d want if the last thing you wanted was a public trial. His practice required a unique kind of crazy, beyond a split personality verging on a multiple-personality disorder.

First, Bobby had to have a positive personality needed to convince hapless potential clients the right amount of fee could set them free. Nobody was better at convincing client’s her could work magic making charges disappear. Nobody was better at extricating fees than Bobby. But, then, after his legal razzle dazzle failed to deliver the promised freedom, Bobby had to have a negative personality to convince clients to take the plea bargain Bobby had finagled for him.

Once Bobby and I represented a client arrested when three kilos of cocaine, a whole stash of cash, and multiple guns were all found in his floor safe during the execution of a search warrant. Fortunately, his stash of cash in the safe wasn’t his only stash, so Bobby was able to extract an exorbitant fee. While lawyers following the usual rules would have been ethically bound to advise the client of the nature and seriousness of the offense and possible punishment, this client was facing Trafficking, First Degree, which carried a mandatory sentence of 25 years, no probation, no parole, and felt emphasizing the downside negatively impacted his ability his ability to extract a fee.

Bobby lucked up when the police didn’t want to burn the snitch and finagled a sweet heart deal to the lesser offense of Trafficking, Third Degree, carrying a maximum sentence of only ten years which was still eligible for parole. Unfortunately, Bobby had done such a good job signing the client up the client was still convinced the exorbitant fee he paid guaranteed his freedom and balked at taking the plea.  This is where Bobby’s special brand of crazy really kicked in.

Bobby stopped trying to talk sense with the client. He put both hands on the table, rose up out of his chair, and glared across the table right into the client’s eyes.

       “You ever watch the Super Bowl on t.v.?” he asked the reluctant client.

       “Yeah,” the client muttered unsure where this was going.

       “You ever see that guy with a rocket pack strapped on his back, take off from the fifty yard line and fly around the stadium?” Bobby asked dead serious.

       “No,” was all the bewildered client could stammer.

       “Oh, yeah. They strap that rocket pack right on the back of that guy in his star spangled jump suit and American flag helmet, and UP, UP, and away he flew,” Bobby said with a look of wonder in his eyes as he lifted his hands off the table and his eyes followed the imaginary flight. The client looked up too but didn’t see anything.

Then Bobby slammed his hands back down on the table top to focus the client’s attention and started right into the client’s eyes before saying, in a voice that left no room for doubt, his voice raising with every word, “If you don’t take this plea offer, by the time you get out of prison an old man, you’re gonna be the only motherfucker still walkin on the ground cause everyone else gonna be flying round in rocket packs!”

You could almost see the dim light go off in the client’s brain as he changed his mind and accepted the plea. The judge accepted the plea too and gave the client the full ten years but, as the lesser offense still eligible for parole, we knew he’d be out in closer to three. The plea bargain Bobby finagled for this ever so guilty client was the deal of the century and worth every penny he paid Bobby or it.

I never asked Bobby where the idea for the rocket pack came from but I’ve never heard of it being used anywhere before or since. I just chalked it up to another one of the Plea King’s rules. When all else fails, just get a little crazy and make something up.

      Our courts are called Circuit Courts because it was intended judges would “ride the circuit” thereby assuring they wouldn’t become too subject to i9nfluence by their hometown lawyers. It was foolish to think traveling judges couldn’t be influenced just as easily. 

      I found myself waiting for court to begin in a rural county courthouse one morning when I was a new lawyer still learning the lawyer’s credo, festina et expectare, hurry up and wait. After a good hour or more, a bailiff took pity on me and confided the judge was duck hunting and I might have a good while yet to wait. Time enough for him to take me under his wing and educate me the way things worked in his county.

      Bailiffs tend to be older, retired men and women, whose job it is to keep order in the courtroom. They direct people where to go, advise judges when everyone is present and ready to proceed, and attend to the needs of jurors. What they lack in formal legal training, they make up for with years of experience observing trials. They know more about how a given case is going to turn out than just about anybody and so can be of invaluable assistance to young lawyers who are polite and nice to them. The bailiff who told me the judge was duck hunting decided to clue me in on a few of the finer points of trial advocacy.

      As with most counties, one family managers to garners all the wealth and power and rises to the top. In this county, that family’s ancestry stretched back to the antebellum days of plantations and slavery. Their side losing but the Civil War was hardly a bump in the road for them. When it was over, and their slaves emancipated, they still owned huge tracks of land and branched out into law and politics to retain their wealth and power. The law branch represented railroads and insurance companies lining their pockets with exorbitant hourly fees. They passed down elective office to their kin like family heirlooms. As to whatever political offices they didn’t want for themselves, nobody could be so much as dog catcher without their blessing.

      The bailiff began my education by explaining how a visiting judge would find himself duck hunting during a term of court. He would have been approached casually, in an offhand manner, by one of the family lawyers and offered the opportunity to go duck hunting on the family’s private estate. Didn’t have a gun or gear? No problem, they’d loan him whatever he needed. They’d have somebody pick him up from his motel and drive them out to the estate. From there a tractor would carry him, a guide, and hunting dog out to a rustic duck blind before the crack of dawn. He’d have been assured they’d have him back in time for the start of Court. It was an offer no judge, away from home and stuck in a cramped, musty smelling hotel room could resist. To get out into nature and watch the sun rise over a pristine lake was a chance for a judge to be a real Southern outdoorsman.

      So, the judge would find himself, sitting in his borrowed camouflage hunting jacket and rubber boots, with his borrowed 12 gauge double barreled shotgun draped across his lap, starring at the red dawn reflecting off the tranquil water at the edge of paradise.

Meanwhile, not far from the blind, further down the shoreline, in a non-descript building, handlers would be chasing farm raised ducks down a hidden tunnel towards the edge of the lake. The panicked ducks, fleeing for their lives, would exit the tunnel and immediately take flight directly in front of the blind where the judge was waiting. The grizzled hunt guide waiting with the judge would have been knowlingly staring off into the distance before helpfully alerting the judge to incoming ducks. The judge, amazed by the guide’s knowledge of all things natural, would raise his shotgun and blam, blam the double barrels would discharge and a duck would fall out of the sky. The waiting dog would splash into the water and swim out to retrieve the Judge’s trophy.

How lucky the judge would feel having only been in the blind fifteen minutes and already having bagged himself a duck. Just about the time the guide would finish complimenting the judge’s natural shooting skills and admiring the fine duck he’d shot, out of the chute another couple of ducks would pop and the whole performance would be repeated. After a round of spiked coffee toasting the judge’s incredibly good fortune, the guide would suggests it was time to head on back into town so the judge could preside over court.    

      The Bailiff let that sink in for a minute before he continued. Later in the week, the judge would thank the family’s lawyers for his morning duck hunt. As he embellished the story of the two ducks he shot, he probably wouldn’t give a second thought as to why the family’s lawyers were gathered in his chambers on a late weekday afternoon. “Of course,” the judge would say, “I’ll be glad to hear that special matter that somehow didn’t get on the regular court docket.” All quite proper, gentile, and professional. Opposing counsel grateful he hadn’t wasted a trip to the rural county on his unscheduled motion wouldn’t realize it was he who was about to get plucked. He would simply assume that’s just the way things are done in the county’s Circuit Court and he’d have been be right.

Later, before the Judge left the county at the end of his term, he would receive two ducks all neatly wrapped in butcher paper and tied with string. Hand delivered to his hotel room to take home to his Missus. The deliveryman would casually comment maybe next time the judge came to town, it would be deer season. Left unsaid was that the family’s baited fields would be waiting. 

            Since jurors are literally asked to speak the truth, its best to remember being a criminal defense attorney entitles you to all the respect and credibility of a Nigerian telemarketer. Ordinary people can’t get past how criminal defense attorneys can represent people they know are guilty. I am a criminal defense lawyer and know this because when what I do comes up at social gathering, people always ask, “How can you represent someone you know is guilty?” I gave up trying to explain not all my clients are guilty years ago and now simply reply, “Representing guilty people is easy. They get convicted and sent off to prison. It doesn’t bother me in the slightest.” Then I pause for a moment before continuing, “It’s representing innocent people that’s hard, keeps me up at night, and has given me all these gray hairs.”

          The truth is lawyers aren’t soothsayers. They rarely know who’s guilty or innocent when a new case walks through their door. More often than people realize, lawyers don’t even get to decide who they represent. They get a call from a Judge who politely “asks” them to represent someone no lawyer in his or her right mind would ever choose to represent. Like the defendant I was appointed to represent accused of murdering a pawn shop owner during an armed robbery the day before Christmas.

I should have known what was happening when I got a call from a judge I didn’t have a case pending before the week after that Christmas. He asked, as if it was a personal favor, if I would represent one of the defendants in this particularly cold-blooded murder. We both knew I was ethically obligated to accept the appointment and, there was nothing I could say but, “Yes, sir, your Honor. It’d be my pleasure to represent this young man. I’ll drop everything and get right on it.”

And that’s what I did. I went out to the jail that very afternoon to meet my new client. At twenty something he was already a gang banger headed well down the career criminal path. Like most criminals, he thought he had everything figured out. He looked at me sideways with a smirk on his face as he told me the other two defendants made him do it, they threatened to kill him if he didn’t rob the pawn shop with them. I explained you can’t take an innocent life to save your own so duress is not a defense to murder. He looked at me with a smirk on his face like I obviously didn’t know what I was talking about and told me slowly, so I’d understand, he didn’t know the other guys were going to kill the owner. I explained during the commission of a felony, the hand of one is the hand of all and he was just as guilty as the guy who pulled the trigger in the eyes of the law. He wasn’t smiling when our interview concluded. My legal advice had done little to instill confidence in me as his lawyer and, more than likely, had planted the seeds I was just part of the larger conspiracy against him.

          My client and his co-defendants were smart enough to wear gloves, retrieve the spent bullet casing, and take the pawn shop’s security camera video tape with them after they murdered the owner. They left little forensic evidence for the police to go on. In fact, the police were stymied until they got a Crimestoppers tip from one of the co-defendants’ girlfriends who was pissed off he’d forgotten to pick her up some Christmas jewelry during the robbery. She called Crimestoppers looking for a reward and said she knew where the stolen loot was stashed. You’d think these criminal masterminds, having been smart enough to take the security tape, would have been smart enough to destroy it but, no, they kept it right in the sack full of  the guns they’d stolen.

Most security tapes are of poor quality, grainy, and with poor resolution but, not this one. It was crystal clear showing the three robbers nonchalantly enter the pawnshop and meander through like they were shopping until they made it up to the locked glass counter where the guns were displayed. Facing outward, the security caught the back of the owner’s head. There wasn’t any audio but anybody watching the tape could tell he was talking to them, probably wishing them a Merry Christmas and asking if they needed any help. You could see one of the co-defendants pull his gun and wave the owner off to the side. There was no camera in the back room where the owner was led showing him opening the safe or the execution style gunshot to the back of his head that took his life. What the camera did record was the other two robbers, one of them my client, still standing in front of the gun case gleefully picking out the guns they wanted like kids in a candy store. You never saw either of them so much as flinch when the fatal gunshot was fired, a fact repeatedly pointed out by the prosecutor.

          I represented this defendant to the best of my ability right through the three-day onslaught of damning evidence his trial turned out to be. The prosecutor began by presenting the holiday shopper who suspected something was wrong when he found no one was in the shop. Who looked around and found the body of the owner face down in a pool of his own blood in the back room. He played the shopper’s frantic 911 call. The prosecutor called the forensic team and introduced the crime scene photographs of the owner’s lifeless body. One CSI explained how the blood spatter evidence showed the owner was shot bent over in front of the safe he opened. A ballistics expert testified and showed a photograph matching the markings on the fatal bullet with a bullet fired from a gun found in the co-defendant’s apartment. The prosecutor called the medical examiner to describe in graphic detail how the bullet exploded through the back of the owner’s skull, sending the mushrooming bullet and bone fragments tearing through the owner’s brain before exiting his forehead through a much bigger hole and killing him i9nstantly. He then called the lead detective to explain how the police had no leads until they received the Crimestopper’s tip. Our defense lawyer’s objection what the girlfriend told the police was hearsay were overruled with the Judge helpfully instructing the detective, “Don’t tell us what she said, just tell us what you did based on what she said.” “Well, your Honor, we got a warrant, went to the co-defendant’s apartment, and found the bag, the guns, and the video tape right where she said they’d be.” The prosecutor introduced more photographs of the canvas bag packed with guns and, yes, the security camera video tape, all hidden up in a ceiling panel in the co-defendant’s apartment. He didn’t have to, but for good measure the prosecutor traced every one of the guns found in the bag back to the records of the pawn shop. Then, and only then, did he play the video tape for the jury. By the time the tape was finished, everyone in the courtroom could see the guilty verdict etched on the juror’s faces. The prosecution rested.

          Now it was the defendant’s turn to present evidence. A lawyer can advise a client whether or not he should testify, but the decision remains the clients to make. Needless to say, I advised this client against testifying. Advice he promptly ignored, convinced the jury would be swayed by his story of how he was forced to commit the robbery. All his testifying did was give the prosecutor the opportunity to replay the tape again, and again, highlighting all the damning parts, especially him not flinching when the fatal shot was fired. It took three days to pick the jury and try his case. It took the jury less than an hour to convict him and both co-defendants  of murder, kidnapping, and armed robbery.

          Before a Judge passes sentence, it is customary to ask the accused if he has anything to say. called an allocution. When the Judge asked my client if he had anything to say, the client stood up with that same smirk on his face he had when I first met him in the jail,and said, “First of all, your Honor, the prosecutor didn’t have nothing on me. He had no evidence I kilt that man.” The little artery on the Judge’s forehead began to pulsate as I thought to myself, so much for acceptance of responsibility. “Yeah, and the prosecutor he discriminate against me cause he didn’t charge me with kidnapping til after I said I didn’t do it and that proves he was vindicative against me.” The Judge’s complexion reddened and I thought so much for showing remorse. And, then he said, “And my lawyer, Judge, he was incompetent. He was taking notes during the trial and that proves he wasn’t prepared.” By this time the Judge’s eyes were bulging out their sockets. The Judge sentenced all three defendants to life without parole for the murder, 30 years for the kidnapping, and 25 years for armed robbery, all sentences to run consecutively, one after the other. It was the maximum sentence he could impose and, in case you wanted to know, it didn’t bother me in the slightest.

            Being the lawyer for this defendant was easy. There was nothing I or any lawyer could have done for him. I dutifully filed his appeal so an appellate public defender could be appointed to argue his unprepared, note taking lawyer was ineffective. As far as I was concerned, I did my professional duty and never lost a minute’s sleep over the sentence he received or my role in his trial. Still, I wonder what that jury thought. They were never told I was appointed to represent him. I’m sure as they sat there in the jury box, they wondered how I could represent someone I obviously knew was guilty. They never knew I never had a choice.

          The experience wasn’t all bad. They call it practicing law for a reason. I got to practice my lawyer’s poker face not respounding  to damning evidence during a trial, a valuable trial skill every lawyer must learn. Also on the plus side, the Judge, who did know I was appointed to perform this thankless task, would owe me an unspoken favor that could someday result in him ruling in my favor on a legal issue that otherwise could go either way. And I got to know the prosecutor who I would try other cases with over the coming years. Cases in which the evidence wouldn’t always be so one-sided, and thankfully, often with a different result. We came to respect each other’s trial skills and became friends, but thereafter, no matter what the case was we tried together, or how it was going, we would always both get a good laugh when he would quip I was unprepared because I was taking notes.     

        There’s plenty of advice around from lawyers more successful than I am about how to win cases, but very little advice about how to not let losing a trial make you a loser. Recently I found myself licking my wounds back in my office having lost a trial I thought was winnable.  My friend, Donald Howe, called to ask how my trial went and I told him the sad news. He told me a story, as the Howes are wont to do, that after he’d gotten his feet wet a time or two in the courtroom, he asked his father, renowned trial lawyer, Gedney M, Howe, Sr., “Pops, when will I be able to call myself a trial lawyer?” Big G thought on it for a minute before replying, “Son, when you’ve taken a case you feel pretty good about to trial, and your opening statement flows off your tongue, and all your witnesses hold up for you, and you tear the defense witnesses up on cross examination. When the judge and the defense lawyer are telling you what a great job you’re doing before the jury comes back and rules against you …” he paused, “When that’s happened about 7 or 8 times, then you can start calling yourself a trial lawyer.” 

My father wasn’t a lawyer, far as I know nobody in my family had ever been a lawyer before me. Still, I can’t remember ever wanting to be anything but a lawyer, a trial lawyer. I read books about lawyers, watched t.v. shows and movies about lawyers, and, when I got older, I went down to the courthouse in my hometown and watched real lawyers trying cases. I know I had grandiose visions of someday being like Atticus Finch, handling headline murder cases, or Melvin Belli, the King of Torts, winning million dollar verdicts. Wouldn’t it be nice if that was what being a trial lawyer really was? It’s not. Being a trial lawyer is not fiction, Hollywood, or easy street. In the real world it’s often like training to be a martial arts fighter able to break boards with a your bare hands. You first need to develop a thick skin.     

Somehow I scraped through law school and became an associate in Senator Isadore E. Lourie’s law firm in Columbia, South Carolina.  In those days a summons, complaint not served, was filed whenever a new client signed up with the firm. The filing started the docket clock ticking, but later, when the facts didn’t pan out and no easy settlement was on the horizon, the file would be passed down to the youngest associate for trial. Talk about a baptism by fire!

I think I was 0 and 15 for my first trials. It was downright depressing and caused me to question whether I’d chosen the right profession. When I spoke of my concern with my good friend, Professor Phillip T. Lacy, he let me in on a secret I’ll share with you.  “Being a trial lawyer is like playing baseball. There’s 165 games in a season and, if you’re batting .350, you’re a star.”

Fortunately, my slump ended.  Oh, I’ve struck out many times since then, but I’ve also gotten a lot of hits, a few home runs, and I’ve even stolen a base or two along the way. If not always for big money or notariety, often enough for the satisfaction of justice served. Here I am 40 years later in my career, still standing in the batter’s box, choking up on the bat, and staring down the pitcher believing I can knock the next pitch out the park. I am glad I stuck with it. Proud after all these years to finally be able to think of myself as a trial lawyer.        

The best advice I can offer to anyone masochistic enough to aspire to be a trial lawyer is never let not winning make you a loser. Do not allow fear of losing keep you from bringing a deserving case to trial or cause you to accept an unfair settlement.

Letting go of the inflated notion your trial skills will make the difference in every case helps when you lose a trial. Francis L. Wellman, in Success in Court, 279 (The Macmillan Company 1941), reminds us, “[t]here are always two sides to every lawsuit and a lawyer on each side. Only one of these lawyers will win and it will not always be the more skillful.” In the majority of cases the simple truth is your skills as a trail lawyer are probably far less important than you think. Harry Kalven, Jr. & Hans Zeisel, in The American Jury, 351 (Little, Brown & Co. 1966), conducted the most extensive research project ever attempted on juries and concluded that only in a small percentage of close cases did the quality of the lawyer’s performance change the result. Statistically he concluded counsel’s abilities had only a 1% impact on the end result. And, here’s the real kicker, they found in reality 90% of cases win or lose themselves. For those of you who subscribe to Vince Lombardi’s famous saying, “winning isn’t everything, it’s the only thing,” you should remember what Edward Bennett Williams, a famous lawyer in his own right, said after he hired Lombardi to coach the Washington Redskins. “If you turn over any given football team to the best coach in America, he may win two more games than the most incompetent coach would with the same material.  Likewise, if you take a hundred criminal cases and assume that fifty of them should be won on the merits and fifty should be lost, and then turn them over to the most able and experienced advocate in America, he will probably win sixty and lose forty.  Turn the same cases over to the most incompetent trial man and he will win forty and lose sixty.  The concept of a great trial lawyer who always wins has no foundation in reality.” 

If that doesn’t convince you you’re not a loser if you don’t win every case, consider Albert A. Workman, in Lawyer Lincoln, 246 (Carroll & Graff Publishers, 1936), researched the court records and found, of the 82 jury cases legendary trial lawyer Abraham Lincoln tried for which records exist, he only won 43. In the real world of being a trial lawyer always remember no matter how good a case you think you have, no matter how good a lawyer you think you are, if you take a case to a jury you never know what they will do. That’s the reality of the profession you have chosen.

They call it practicing law for a reason. Questioning yourself, hard as it may be sometimes, can be a necessary and good thing. Should I have seen this loss coming? What could I have done differently to have prevented it? Should I have recommended a settlement more forcibly? Should I have taken the case in the first place?  These are all questions you should ask yourself after every case. The cases you win and those you don’t. Instead of doubting your trial skills, you should view every adverse verdict as an opportunity to honestly review your strategies and techniques and modify them, so you can do better the next case. 

It also helps if you value the attributes of good trial lawyers that matter most. It turns out winning all your cases is way down the list. Clarance Darrow, who not only lost the famous monkey trial but many other high profile cases of his day, is remembered not for his courtroom victories but for his devotion, passion, and courage in the courtroom for the causes he believed in. A Missouri Bar Prentice-Hall Survey: A Motivational Study of Public Attitudes and Law Office Management, 67(The Missouri Bar 1963), found that, while lawyers tend to believe winning is extremely important to clients, clients listed “results” as a cause of dissatisfaction only 2% of the time. The survey found clients value honesty, compassion, perserverance, hard work, and courage far more than your win/loss ratio. 

It also helps to learn humility. It will serve you well. Believing you have to win all your cases, at all costs, leads to an inflated ego, arrogance, lack of civility, and ethical breaches all of which are the kiss of death in a courtroom. It also helps to learn forgiveness. You can start by forgiving yourself. You have enough stress with the judge, opposing counsel, and your clients chewing on you all the time, you don’t need to add to the stress by beating up on yourself. Not winning doesn’t mean you’re a bad lawyer, it just means you’re a trial lawyer. And it also helps to learn compassion for the far more real losses your clients suffer. Compassion starts with putting your own ego aside and listening. Talk to your clients, jurors, and other lawyers after the trial and listen to what they have to say. It will surprise you and open your eyes, just don’t forget to bring that thick skin we talked about earlier.  

But most of all it helps to have fun practicing law. Know as bad as losing a case feels, there is no better feeling than winning a tough, hard-fought case. You could have chosen to be an accountant and found only a modicum of pleasure balancing the books at the end of each month. But you chose to be a trial lawyer, it’s an up and down roller coaster ride worth the trip. At first I tried cases with older, more experienced lawyers who taught me. Later I tried cases with partners and friends and we taught each other. Today I try cases with young associates or young lawyers who are themselves eager to learn. Each lawyer I have ever tried a case with has had stories to tell that I enjoyed listening to throughout my years of practice. I have always found the camaraderie of judges and fellow trial lawyers, plaintiff and defense lawyers alike, to be the best part of practicing law.  

All trial lawyers in their heart of hearts are story tellers. Take care crafting your story. Like all good stories it should be honest and from the heart. Make it a story you are proud to share on those nights when you celebrate at the local watering hole before the jury verdict comes in. Make it a story of courage. Of not letting fear of not winning make you a loser. Too few lawyers talk about the cases they didn’t win like not winning is something to be ashamed of.  It’s part and parcel of being a trial lawyer. I say roll up your sleeves and show your battle scars proudly.