Let me just begin by saying my wife, Mary, likes studying people while waiting in places like restaurants and airports. There we were waiting to board a flight when Mary leaned over and whispered in my ear, “There’s a woman over there that’s cutting you killer eyes.” I looked up and there she was, the antagonist of a constitutional crisis that occurred in Cottageville, South Carolina, a small town in rural Colleton County with a population just shy of eight hundred.
The wife of an old client of mine was sued being for being part of a civil conspiracy to defame the reputation of the Cottageville Town Clerk and have her unceremoniously fired from her job. It all began when the former mayor of Cottageville was killed driving eighty-something miles an hour on the county’s back roads. The newly elected mayor thought it would be wise as part of his orientation for his new job to meet individually with the town’s staff. The meeting with the town clerk lasted longer than most, in fact, it seemed never ending.
People began noticing the mayor’s and clerk’s cars parked outside the locked Town Hall at all hours, day and night. Tongues in the small town began wagging. The gossip escalated when the mayor gave the clerk a brand new desk placed right outside the mayor’s office with a large ornate clerk sign. In contravention of the town’s time-honored open-door policy, henceforth people were told they needed an appointment to meet with either the mayor or town clerk and the clerk’s snooty attitude if the new rule was violated ruffled more a few feathers in the town.
Idle gossip allegedly became slander when the clerk was flat out accused of having an affair with the mayor at the local beauty salon. The clerk’s specifics as to who, what, where, and when the alleged slander occurred were exceedingly vague. But the clerk maintained it was the beginning of the end of her virtuous reputation
The next act in furtherance of the alleged conspiracy occurred at the local bank. A teller allegedly repeated the slander when the clerk demanded immediate service ahead of other customers. The teller’s comments included a suggestion the clerk should take the town’s business elsewhere allegedly causing pecuniary damage to her livelihood.
It was the Cottageville dry cleaner who brought the simmering constitutional crisis to a boil. Cottageville being such a small town it was not unusual for the dry cleaner to deliver cleaned laundry right into your home. One day the good citizens of Cottageville, including my client, were enjoying their lunch at the Good Eats restaurant on the main drag when the dry cleaning lady came in an excitedly exclaimed for all to hear, “You won’t believe what I just saw!” She went to describe how she entered the mayor’s back door, like she always did when delivering his dry cleaning, she encountered the mayor standing with his pants down around his ankles and the clerk on her knees by the kitchen table. It took all of about ten seconds for this news flash to be repeated to every inhabitant of the town.
And it was the last straw for the good ladies of Cottageville, my client included, who decided to join together and run for Town Council for the express purpose of firing the clerk. And, they won the election and did exactly that. Good riddance, well not so fast. The town clerk retaliated by filing a lawsuit against the town and all the newly elected council members for besmirching her reputation and destroying her ability to earn a living.
The lawyers representing the other defendants and I filed answers to the lawsuit denying the allegations, pleading truth as a defense, and raising as many affirmative defenses as we could think of. We answered discovery and, after four or five months racking up legal fees, we were finally ready to take the clerk’s deposition. With the town, mayor, and co- defendants all having lawyers, the deposition was well into the second day when it was my turn to cross-examine the clerk. The lawyer’s ahead of me had already elicited adamant denials of infidelity from the clerk and I certainly felt no reason to beat that dead horse. I focused on what evidence, if any, the clerk had my client actually accused her of anything. Oh, she was right in the thick of it, the clerk claimed, joined right in with those other ladies to do her dirty. When it turned out she didn’t have any evidence my client accused her of anything, I filed a motion for summary judgment.
We drew the Honorable Carmen Tevis to hear the motion. Judge Tevis let it be known in no uncertain terms she had no intention of listening to the sorted details of the alleged debauchery at the hearing. Having already described the details in detail in my not so brief brief, I whole heartedly agreed with the judge and told her it was the complete lack of evidence my client had said anything about the clerk’s conduct that entitled her to summary judgment. When the clerk’s lawyer protested my client had campaigned on a platform to have the clerk fired, I admitted as much but countered with my client had the constitutional right to do so. Judge Tevis agreed and granted summary judgmen5.
I mistakenly thought everyone was glad it was over. Certainly, my client, her co-defendants, and the town who all had limited resources to pay mounting legal fees were glad it was over. No appeal was taken from Judge Tevis’ order by the clerk’s counsel who I suspected had unwisely taken the case on a contingency fee and seen the writing on the wall. But, obviously not everybody was glad with the result. Here I was sitting in the airport with my wife worrying I was about to be assaulted by some crazy lady. It is the price we lawyers have to be willing to pay for fighting to preserve and protect our constitutional rights. A price I have paid many times having been appointed to represent despicable people accused of committing horrendous crimes. Although no major movie studio has called offering to buy the rights to this monumental constitutional battle fought out in the back woods of the deep south, I will always consider role in the case as a badge of honor.
A good private investigator can make an average lawyer look like a superstar in a courtroom. Many former police officers become PIs but, for my money, the best PIs come from the other side of the street. Joe Rogers was, without a doubt, one of the best PI’s I ever worked with.
Joe grew up in a rough North Charleston neighborhood. A born hustler, he was the guy everybody came to for whatever they needed which, of course, meant he was in and out of trouble like the tide. It was a miracle he ever made it to high school but, when he did, he quickly became BMOC running a discount gas station selling siphoned gas out of the school bus parking lot. Joe’s mother told the judge that was the last straw and she was washing her hands of him, so it was off to the John De La Howe school for boys. Hustling there got him assigned to KP duty and, in retaliation, Joe fed raw rice to the chickens. He was forced to make a hasty getaway when the chickens started exploding. They found the tractor but not Joe who ade it all the way to Florida where he was taken under the wing of someone who’s hustles involved somewthing more than selling penny ante gas.
When Joe got older, Joe was drawn to the smuggling trade, not so much in the smuggling end of the business, but more onshore logistics setting up safe houses and moving truckloads of pot from coastal off load sites to cities up and down the East Coast. To launder his earnings, Joe bought, sold used luxury automobiles and led a quiet life on the money he stashed away while the Feds were closing in on his former associates still in the trade.
Before long his savings ran out and Joe was forced to find other employment. He started earning commissions referring his old smuggling associates to bail bondsman. When those same bondsmen got stuck holding hefty bonds on defendant’s who failed to appear, Joe discovered he could earn even heftier commissions tracking them down and bringing them in. A bail bondman on the hook for a $100,000.00 bond would gladly pay Joe $25,000.00 if he could bring them in. And boy could Joe bring them in. He’d track them down, find out where their favorite bar was, and sit down next to them all friendly like and tell them to relax, he was the nice guy. He’d tell them he’d let them get their affairs in order and turn themselves in thereby avoiding the broken bones, gunshot wounds, and handcuffs that would come with the muscle bound, bald guys who would track them down after Joe. If a bail jumper needed representatio, he’d refer them to me. Before long he talked me into letting him do investigative work for me and impressed me with him results.
Joe’s colorful background and resoursefulness gave him a unique understanding of human nature and the ability to convince people, including me who normally wouldn’t hie a criminal to work foir him, into doing things they probably otherwise wouldn’t do. That’s what made him such a great private investigator.
A client of mine and his friend of his were leaving a downtown dance club late one weekend night when they happened upon two girls fighting. My client’s friend was intervening to break up the fight when one of Charleston’s finest came up from behind him and billy clubbed him on the back of the head. The fight ended and the police officer ordered everybody to leave. My client walked his friend back to their car but, by the time they got there, his friend was feeling dizzy and starting to pass out. My client ran back to ask the policeman to call an ambulance, but the police officer got angry and threatened to arrest him.
My client was left to drive his friend to the ER where, when asked what happened, told the admitting nurse his friend had been struck on the back of his head by a policeman. Unknown to my client, the ER reported the assault to the police and, when the dispatch call went out, the police officer with the billy club responded to the ER where he used it again on my client in the waiting room. To hear the police officer tell it, my client was drunk and disorderly, resisted arrest, and assaulted him. In addition to getting a good beating, my client was charged with assaulting a police officer, a felony carrying up to ten years.
Police officers falsly accusing people they beat up during an arrest of assaulting them is a common ploy to cover up their own wrongdoing. It usually works and the prosecutor assumed my client, like most everyone else in such cases, would accept a plea to the lesser included offense of resisting arrest, a misdemeanor carrying only one year with a recommendation of probation. But my client was adamant he wasn’t pleading to something he didn’t do. When my client refused to plea, the judge felt compelled to remind him and me of the ten years she could impose if he were convicted.
As compelling as your client’s story may be, if you’re going to call a police officer a lying thug in open court, you need solid proof. My client’s friend was in with the doctors and didn’t see what happened. My client never had a chance to get the names of any witnesses in the ER that night before he was dragged off to jail. The security camera didn’t cover the area near the payphone where the assault occurred. And, and the security guard on duty in the ER that night developed sudden onset amnesia not wanting to buck the cops. Joe really proved his resourcefulness and worth finding a witness for me.
Joe had the gift of being able to fit in anywhere, move about without hardly being noticed. He camped out in the ER for several days and learned the name of the nighttime janitor working on the night of the assault. It took him a day or two more to become friends with the janitor and speak with him. Joe learned the janitor not only witnessed the unprovoked beating the police officer put on my client but was shocked by its ferocity. Finding a witness is only half a PI’s job, the other half is getting them to agree to testify. Joe convinced the janitor of the righteousness of his testimony and gave him the courage to come forward.
The prosecutor never bothered to find any witnesses and was planning on relying exclusively on the officer who felt invincible lying through his teeth about what happened. Police aren’t allowed to wear their uniforms in court, but this one wore his shinny badge on a chain draped around his neck. He testified with all the ease and polish of an professional liar or paid expert. With a practiced look of “just doing my job” he testified matter-of-factly, “I was dispatched to investigate a routine disturbance at the hospital. When I arrived on the scene I found the defendant acting in a loud and boisterous manner disturbing the patient’s in the Emergency Room. I approached him and asked him politely, sir, I need you to calm down so I can ask you some questions to which the suspect responded with a string of profanities in the presence of women and children . When I tried to peacefully escort him out of the ER to continue my investigation, he struck me with a closed fist in my chest and I was forced to subdue and arrest him in accordance with standard police procedure.” Smugly thinking he had nailed my client’s coffin shut, the prosecutor turned the officer over to me for cross examination.
You could see the prosecutor’s concern when I thanked the officer and said I had no questions. When I served on the Board of the Trial Lawyers Association, I had the opportunity to hear famous trial lawyer, Gerry Spence, who was in South Carolina volunteering his time to appeal the death penalty sentence imposed on a minor. He addressed the board at our retreat and told us the biggest mistake he saw lawyers make is giving adverse witnesses the opportunity to keep repeating their story on cross examination. As an example, he used an intersection automobile accident. After a witness has already testified on direct he had the green light, he said too many lawyers will cross examine like this: So, you say the light was green when you entered the intersection? Yes, sir, the light was green, plain as day, had been green for a good while. I had to wait for other cars ahead of me to go before me. So, there were other cars ahead of you, did they block your view of the light? No, sir. I had a clear view and could see the light was definitely green the whole time. So, if you had to wait, how do you know the light hadn’t changed to red before you entered the intersection? Because there were only two cars ahead of me and the light stayed green as I entered. Gerry Spence said it was our jobs as lawyers to tell our client’s story as many times as we can during a trial, not to give the other side a chance to keep telling their story. I took his advice to heart early in my career and had no desire to waste time giving this officer the opportunity to repeat his lies about what happened on cross examination. Thesurprised prosecutor rested his case, and I called the janitor Joe had found.
He said he was the nighttime janitor and had worked at the hospital for going on twenty-three years. There was no disturbance in the ER that night before the police officer arrived. He testified with his whole being. When he testified about seeing the police officer walk right up an assault my client, his eyes got big as if he was seeing it live in front of the jurors. His voice broke as he described the viciousness of the assault. No, he did not see my client strike the police officer, he never had a chance before the policeman started beating him. There was an unmistakable ring of truth in his testimony and, by the time he finished, there wasn’t a person in the courtroom, including the judge, that didn’t know the officer was a lying thug. I didn’t have to give an earth shattering closing argument telling the jury what they already knew but did say, ” That may be his badge hung around his neck, but it doesn’t shield him from the truth of what he did.” The jury returned a not guilty verdict no time at all. All thanks to Joe.
Health issues overtook Joe, but, even when he could no longer be a PI, we remained good friends. When my wife returned home early from an out-of-town trip to discover our house overrun with partying teenagers, she knew to call Joe instead of the police. In exchange for nobody getting arrested, Joe had them all cleaning the house with lighting speed. When they finished, Joe called Mary to say she could come home. Thereafter, Joe babysat our house and our poodle whenever we went out of town. All my children knew to call Joe if they were in a jam and couldn’t reach me.
Joe took to driving taxies to make a living and developed a string of what he called “specials,” regular customers he would take care of. Working single mothers who needed their kids dropped off or picked up at school every day, elderly people who needed to be taken to the store to buy groceries or medicines and back home again, and hookers who needed transportation and protection when meeting Johns at night. And, just like with me, Joe made friends with everyone who relied on him.
One night when my boys and I were sitting down for supper, Joe had some time to kill before taking a hooker to her next stop, so he brought her by our house. She couldn’t believe I would welcome Joe and her into my home and soon realized Joe was like a member of my family. While my teenage boy’s eyes about popped out of their heads and jaws dropped to the table, the drop-dead gorgeous hooker couldn’t help telling us how much Joe meant to her. So much so, she declared Joe shouldn’t even be driving his taxi at night anymore cause, “he has Cadillacs in his eyes.” And so, he did, he saw the best in everybody, and it made him one of the best private investigators I ever had the pleasure to work with.
Lawyers like to brag about their criminal not guilty or personal injury million-dollar verdicts but sometimes satisfaction practicing law comes from handling seemingly ordinary matters. It fell to me as the youngest associate in the firm to handle a request for a name change made by a senior partner’s client about to receive a large PI settlement. He wanted to change his name from Rochester Pressley to Ze Ze Zellazorro to better reflect his Puerto Rican heritage. Never having done a name change, all I had to figure out how to do one and, fortunately, it turned out to be pretty straight forward. All I had to do was just draft a petition to the then County Court, attach an affidavit the client had no criminal convictions, bankruptcies, or outstanding judgments, wasn’t seeking to avoid creditors, publish a notice in the local paper, and draft a proposed order for the judge to sign. Piece of cake, or so I thought. The case was assigned to the Honorable Lester Legare Bates of the Richland County Court usually a most friendly judge. It turned out, however, Judge Bates had trouble wraping his brain around the name Ze Ze Zellazorro or anyone wanting to better reflect their Puerto Rican heritage.
I was anticipating just a routine hearing. Hearings like this were conducted informally in the judge’s chambers and always began with Judge Bates asking, “What can I do for you, my boy?” I sensed something was amiss when I didn’t get a “my boy” at the beginning of the hearing. And things went downhill from there. To put it simply the judge felt I was wasting his time. He began to pick apart my petition. “How do you know your client doesn’t have any criminal record?” “Well, your Honor,’ I stammered, “He said he didn’t have one and his SLED record check came back clean.” A muffled harumph was all that got me from the judger. “What is the meaning of this ‘Ze Ze Zellazorro,’” the judge growled, “Is it some stage name he wants to use?” “No, your Honor, his parents migrated to the United States from Puerto Rico back in the 1960”s and his father changed their name to Pressley to better fit in. My client simply wants to go back to his family’s original name, Zellazorro.” Apparently not satisfied, the judge asked his clerk, Mr. Chitwood, to swear my client in and began questioning him in a gruff and demeaning manner.
Things got testy when the judge indicated he thought my client wasn’t an American citizen and seemed genuinely confused when I told him Puerto Ricans were granted American citizenship by the Jones-Shafroth Act in 1917. The judge went allegation by allegation through my petition demanding sworn verification of everything. My client stood his ground and directly answered each question. I could see the judge’s complexion darkening with each affirmative answer. I guess he expected the sneer in his voice would intimidate my client and get him admit some falsity in his answers. You could sense the judge’s frustration mounting when it never happened.
Exasperated, he asked if I had any questions. I thanked the judge although I was unsure what for, and asked my client about his service in the Army and two tours of duty in Vietnam. The judge’s attitude immediately changed. He cut me short and, with a great flourish, signed my proposed name change order. “Here you go, my boy, anything else I can do for you?”
“What just happened?” the newly named Ze Ze asked as soon as we were outside of the courthouse. “I thought you said it was just gonna be in and out, no big deal.” “I have no idea, I guess the judge took offense to something, but I don’t really know,” I replied. Ze Ze thought for a moment before saying, “I do. I’ve faced such discrimination all my life. It’s part of the reason I wanted to change my name, because I’m proud of my heritage. I want to thank you for sticking with me and not backing down.” It may have been a miniscule victory in the long struggle for civil rights in Americsa, but it meant a lot to me because it meant a lot to my client.
It had to be a year or so later when the receptionist buzzed saying there was a call for me from a Rochester Pressley. I picked the phone and asked, “Ze Ze?” He laughed and said, “I didn’t think you’d remember.”
Ask the average person what they think of lawyers, they’ll say lawyers are a bunch of lying, cheating, backstabbing sons-of-bitches. Ask those same people what kind of lawyer they’d want if they were in a jam, and they’ll say a lying, cheating, backstabbing son-of-a-bitch. This says more about the public perception of lawyers than it does about what it takes to make a really good one, the kind of lawyer you’d actually need if you ever found yourself in an actual jam. It was my privilege to practice law with just such a lawyer, Charles S. Goldberg, Charlie to everyone who knew him. He was universally recognized as the nicest lawyer anybody ever met. But that monicker might lead you to think he must have been a pushover. Nothing could be further from the truth. What his fellow lawyers meant by calling him nice was that he treated everybody with respect, never felt the need to berate or belittle anybody, upheld the profession’s highest ideals of honesty and integrity, and always kept his word. He was one of the best lawyers I ever had the pleasure to try a case with.
Charlie’s client in the case we tried together was the mother of a special education student enrolled in school in a neighboring county. The girl said the “F” word in class causing the teacher and teacher’s aide to march her to the lavatory and wash her mouth out with school soap. This freaked the poor girl out so much, she screamed the ‘F” word repeatedly and as loud as she could when they brought her back to the classroom. So, they did it again. This time the girl had a life-threatening allergic reaction, called anaphylaxis, where her airways constricted due to swelling and she couldn’t breathe. She thankfully recovered but the school called her mother saying she had to be picked up and taken home.
The girl was hysterical when the mother arrived at the school to pick her up but the school refused to say what happened. Her mother finally calmed the girl down enough to find out what happened and immediately took her to her pediatrician’s office. Fortunately the physician found no permanent physical injury. The emotional harm, however, was such the girl was unable to return to the teacher’s class. When the school refused to do anything about what happened, the mother turned to Charlie for help.
The incident offended Charlie’s sense of justice, so he wrote a sternly worded letter to the school board demanding an investigation and disciplinary action hoping that would be the end of it. The school board’s attorney wrote back, however, claiming an investigation had already been done and had determined saying the “F” word in class, even by a special needs child, violated the school’s rules and disrupted the class justifying the teachers’ actions. Their lawyer probably figured no lawyer would file a lawsuit in a case involving only an $80.00 pediatrician bill with no permanent injury but Charlie wasn’t just any lawyer. Charlie didn’t take cases based on how much money they were worth, he took cases because his client needed help. He was undeterred by the school board’s letter and filed suit under the Tort Claims Act which allows suits against governmental agencies but caps compensatory damages and prohibits punitive damages. His case slowly worked its way up the trial roster and, when it was getting close to trial, Charlie asked me if I’d sit second chair.
We lucked up and drew Judge Ernest Finney, who would later become Chief Justice of the South Carolina Supreme Court, as our trial judge. Judge Finney, like all judges, did his best to get the case settled but the school’s lawyer smugly refused the judge’s request to discuss settlement. I noticed Judge Finney lower and shake his head when he did, as if to say, okay, you asked for it. And so, the trial began.
Like all trials it began with jury selection. I asked Charlie what kind of jurors he wanted and he laughed saying the right question a trial lawyer needs to ask is what kind of jurors don’t you want. He said before lawyers waste a whole lot of time and money trying to psych out who will be good jurors when they should be worrying about excluding the potential jurors you know will be bad ones. Charlie didn’t want teachers or people who had teachers in their families on our jury. We only had so many strikes and burned them up striking teachers. That still left us with three jurors with teachers in their families. I was concerned but Charlie just said we’d just have to tread lightly with the defendant teachers. I didn’t know then treading lightly was Charlie Goldberg’s specialty.
In his opening statement Charlie stuck to the facts figuring they were enough without having to embellish them with unnecessary legalese. The defense lawyer, on the other hand, laid it on thick. He fawned over the teacher and her aide sitting at the defense table all dressed up like twin Little Bo Peeps in high collar, white shirts and prim and proper dark sweaters and skirts. He played the sympathy card bemoaning the difficult jobs teachers have controlling unruly students for the meager pay they recieve. I thought Charlie should object to the obvious appeal for sympathy, but he let it pass. The defense lawyer went on and appeared incensed as he concluded his opening by blaming the whole incident on the wretched, foul-mouthed student who got what she deserved. I tried to read the jury following opening statements but they all sat in the jury box stone faced like statutes giving no indication of their feelings.
The Plaintiff calls witnesses first in a trial and Charlie called the girl’s mother. She testified her daughter had always been a slow learner. She testified about never having a chance to get an education herself which made her struggle twice as hard to see that her daughter got the best education possible. How she fought to get her daughter into special education classes while at the same time fighting to have her mainstreamed when feasible so she would have as close to a normal a school experience as possible. She testified about the school first stonewalling her about what happened and then refusing to take any action when confronted with the truth. Charlie had her testify about the $80.00 bill she received from her pediatrician and proceeded to introduce it into evidence with as much formality as if it was an $80,000.00 bill. He carried the bill up to the court reporter and asked that it be marked as Plaintiff’s exhibit A. He carried the marked bill over to his client sitting on the witness stand, and said let me show you what I’ve marked as Plaintiff’s exhibit A, can you identify what it is? The mother said yes. Is this a true and correct copy of the bill you received from your pediatrician for treatment he provided your daughter following the incident at school? Yes, it was. Charlie carried the now authenticated bill over to the defense table and showed it to defense counsel. When counsel nodded his assent, Charlie announced, your Honor, I’d like to offer Plaintiff’s Exhibit A into evidence, without objection. Charlie in his quiet way had turned the weakest link in his evience into a weapon he would later use. The mother finished her testimony by thanking God her daughter hadn’t suffered any permanent injuries but said how it set her daughter back, made her afraid to go back to school, or to try streamlining again. She finished with saying something needed to be done so what happened to her daughter never happened again to any other student. The mother’s testimony was as simple as it was believable.
The defense lawyer on cross-examination hammered away about her daughter using the “F” word in a classroom. Did she learn such language at home? Does she allow her children to use language like that in her home? Wouldn’t she agree the use of such language in class should be punished? You don’t claim these dedicated young teachers intentionally harmed your daughter, do you? Well, I don’t think so, no, she stammered. He thought he’d slammed the door shut on her case when got her to admit her daughter’s allergic reaction was probably an unintentional accident. He thanked the mother and sat down. Charlie didn’t attempt any redirect and called the girl’s pediatrician to the stand. He testified he was outraged by what the teachers had done, not once, but twice. He said it was lucky they hadn’t killed the girl. Defense counsel blunted the good doctor’s testimony on cross-examination getting him to admit, not only hadn’t the teachers killed the girl, they hadn’t even caused any permanent physical injury.
Charlie rested his case and the defense lawyer moved for what’s called a directed verdict on the dubious ground that, since teachers have “implied consent” to touch students, in the absence of any malice or intent to cause physical harm, no cognizable wrong had been committed. Judge Finney denied the motion noting the teachers washed the girl’s mouth with detergent out not once, but twice, making the question of malice a question of fact for the jury to decide.
It was the defense lawyer’s turn to call witnesses. He confidently called the teacher. Her direct examination was flawless. Never once did she fumble for an answer. She didn’t deny the incident occurred but pleaded she was only trying to keep order in her classroom and that the girl’s allergic reaction was an unexpected accident. Her description of her love of teaching and denial she would ever intentionally hurt any of her students tugged on everybodies heartstrings. He confidently turned the teacher over for cross-examination. It was time for Charlie to tread lightly.
Charlie got up and began his cross-examination by politely probing the girl’s status as a special education student. He got the teacher to admit the girl was a special education student but she denied knowing the nature or severity of the girl’s condition. Wouldn’t you want to know as much as you could about a special needs child in your classroom? I’m not trained to be a special ed teacher and wouldn’t be qualified to make a diagnosis was all he could get out of the teacher. Charlie didn’t get flustered and asked wasn’t the purpose of the mainstreaming program to give special needs children a more normal high school experience? The teacher admitted that was true, so Charlie asked if the teacher supported mainstreaming the girl into her classes? And just like that the first crack in the carefully constructed façade of a kindly young teacher appeared when she became frustrated having to answer a question she hadn’t been prepared for. Er, a, well, like I said I don’t have training how to deal with students like her and, er, a, well special needs students like her can be disruptive in class. Try as hard as she could she couldn’t sugar coat her obvious dislike for the program and the student. Charlie probably shouldn’t have but asked if the girl had been disruptive in class before this incident. The teacher perked up to be back on prepared ground, so prepared she pulled from her pocket a typewritten summary of all the times the girl had disrupted her class. The defense lawyer sat silently at his desk with a Cheshire Cat grin on his face thinking the floor had been pulled out from under his case with Charlie falling through his carefully constructed trapdoor.
Most lawyers would have thrown a hissy fit objecting they’d never seen this summary before but not Charlie. He politely asked the teacher if he could see the summary. He took the summary from the teacher and his time reviewing it while the judge and jury waited patiently for Charlie to continue. Charlie surprised everyone by seeming to comment how nice, neat, and thorough her typewritten summary appeared to be. He then asked if the teacher kept records on all her students in such a nice, neat, and typewritten fashion? The teacher tensed knowing she didn’t. Being on unfamiliar ground again she said the first thing that came into her head, no, she kept handwritten notes about everything that happened in her classroom but added the reason for the typewritten notes was she’d gone back over her contempteraneous handwritten notes and typed them up so they’d be easier for the jury to read. Charlie smiled, as if to say how thoughtful of you, before asking where the original, contemporaneous handwritten notes were she kept of what happened in her classroom? She hesitated again frantically trying to remember what was in the notes. She looked desperately toward her lawyer for help, but he avoided eye contact. Finally she said they were at her home. Charlie stepped back, turned to the judge, and simply said he had a matter he’d like to take up with him.
Judge Finney noted it was getting near the lunch hour so he dismissed the jury telling them to be back at two o’clock. This would have made for an unusually long two hour lunch break. Charlie never had to say a word. As soon as the jury cleared the courtroom, Judge Finney said he was not only ordering the teacher to produce the contemptuous notes, he was ordering the Sheriff’s Deputy assigned for court security to take her home in his cruiser, retrieve the contemporaneous notes, and bring them both right back to the courthouse.
The first thing Charlie did when the trial resumed was remind the teacher she said she kept notes on everything that happened in her classroom, isn’t that what you said? Er, a, well yes the teacher admitted. Looking through these notes can you tell me why they all appear to be about my client? Er, a, well she was part of the mainstreaming program and I instructed my aide to write down everything she did. Charlie started picking out individual notes. Notes about her appearance, the buttons on her blouse being misaligned, her socks didn’t match, her shirt tail was out. Notes about her fidgeting, looking round, or daydreaming during class. Notes on her childlike handwriting, misspelled words, and incomplete sentences in her homework. Another lawyer would have hammered away that the teacher was looking for any reason to get the girl thrown out of her class but Charlie knew the jury could figure that out all on their own. Charlie wasn’t about to give the teacher the chance to repeat the disruptions documented in her typewritten summary and zeroed in on one particular handwritten incident omitted from the typewritten summary she’d earlier presented.
It says here this one day, the girl didn’t show up for your class, do you see that entry? Yes. And I see you marked her absence as unexcused , do you see that? Er, a, well yes. Did you report her absence to the office? Er, a, well no, it wasn’t the only time she’d gone missing. Tell us on this occasion how long was she missing? I’m not sure, the office called me before the class ended to ask if she was in my class. I told them she wasn’t. And what does your aide’s handwritten note say about where she was found? Down the street from the school, off school property, at a candy store all by herself. Did a young special needs girl going missing, leaving school property, and being found at a candy store down the street disrupt your class? Er, a, well, yeah I guess it did. Did you include that disruption on your typewritten list of disruptions? The teacher’s no was barely audible but spoke volumes.
I don’t remember much about the rest of the trial because, really, it was over already. Charlie chose not to question the poor teacher’s aide because it was obvious to everyone that the poor girl felt ashamed of her role in the affair and she was only doing what the teacher told her to. The defense lawyer gave up and rested his case. All that was left was to argue and charge.
In his first closing argument Charlie never raised his voice. He never belittled or berated the teacher. He didn’t spend a lot of time telling the jurors what they already knew. He thanked them for their service and asked them to return a verdict for the amount of actual damages allowed by the statute. The defense lawyer sensed the jury had turned against him and, without actually admitting liability, changed tactics and begged the jury to be reasonable in awarding damages. He should have stopped there but couldn’t help himself and finished up by commented about there only being one bill for $80.00 and no permanent harm. He left the bill in plain sight in the middle of the exhibit table. Charlie got to argue last and it was time for him to use that bill as a weapon. He walked over and turned the exhibit face down and moved it off to the side before turning back to the jury and saying in his respectful voice this case was about more than an $80.00 doctor’s bill. What the teacher did caused great and lasting emotional damage to this already vulnerable young girl. It made her afraid of school and deprived her of the chance to be mainstreamed. It left emotional scars that will never heal. Charlie thanlked the jury and sat down.
The judge charged the law with perhaps just a touch more emphasis on the damages not being limited to physical injury than normal. It was time for the jury to have the last say. Charlie and I hadn’t waited long before we were told the jury had a question.
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