Wednesday, December 10, 2014

What it was REALLY like in the courts a couple of centuries ago!

By Warren Moise

It seems as if I have information coming at me from 10 different places the instant I walk into my law office each morning. Oh, to practice law back in the day when there was no pressure. But was it really better then? Let’s look at the lives of trial lawyers in the early 1800s and see just how good they really were.

South Carolina in the early 1800s

Ok, pretend you’re a young attorney and solicitor-in-equity in the early 19th century. Charleston is still the gravitational center of the legal profession. However, the upstate is growing, and Charleston lawyers now for the first time are a minority of the new attorneys enrolled to the practice of law.
The Forensic Club (one day, it will be reborn as the Charleston School of Law) has briefly become the state’s seminal law school and the first in the South. But most students don’t go to law school. Instead, they “read the law” in attorneys’ offices. It’s a good deal for the lawyers because the students actually pay them, the usual rate being about 100 guineas per year for a three-year term. A single law firm might have numerous law students, so with space limited, letters of recommendation are a plus. Charleston attorney James L. Petigru has so many students that he recently built a new law office at 8 St. Michael’s Alley.
You hear some of the older lawyers talk about the Constitutional Convention of 1787. They were alive when the Constitution was ratified. There is much respect for the elder attorneys who actually fought in the Revolution. In fact, there is palpable angst when one judge with a distinguished war record is about to be removed from the bench; he has a debilitating drinking problem, but who wants to cast stones at a Revolutionary hero?
Despite unanimous opposition by South Carolina’s delegates at the Constitutional Convention in Philadelphia to creation of any federal trial courts, the district court is now operating quite well. It doesn’t have the heavy caseload of the state courts, of course. Much of its docket involves admiralty matters. The U.S. Court convenes in Charleston at 23 Chalmers Street in a rented two-story building, and sometimes in Columbia or Greenville. Court proceedings at Chalmers Street often must be stopped because jurors can’t hear the judge, lawyers or witnesses above the clattering wagons bumping down the cobblestone street. On warm days, the scent from the stables next door captures jurors’ attention more so than the lawyers’ arguments. According to a recent article in the Charleston Daily Courier, jurors complain that "[j]ury rooms are destitute of every convenience" and accommodations for the court officers are inadequate. It will be this courtroom in 1860 where Judge A.G. Magrath (pronounced “ma-GRAW”) will send shock waves across the United States by closing the federal court in South Carolina’s first break from the Union, predating the Secession Convention.


The Bar: politics and parties

The South Carolina Bar Association is in its infancy. Organized in the federal courtroom on August 23, 1826, the Bar Association is focused on two things —creating law libraries in Charleston and Columbia, and mixing socially. The library is needed so judges have access to modern, up-to-date treatises, digests and cases. Students and young lawyers like yourself also need law books, which are expensive. The social part of the Bar is just as important a priority. After the Bar’s first anniversary meeting at City Hall, the lawyers trooped over to the Hibernian Society for some splendid entertainment. The toasts spoke volumes about the Bar. The first toast was “To the science of the law: always appreciated in proportion as it is understood.” Visiting Senator Martin Van Buren toasted, “To the Bar of South Carolina: from the dawn of the revolution to the present day, it has been abundant in the production of orators, patriots, statesmen and soldiers.” The U.S. Supreme Court similarly was acclaimed. This bonhomie will be good while it lasts, which isn’t long. Eventually, this Bar Association will fall victim to the nullification controversy, disappear and be forgotten. In fact, when the Bar is reformed after the Civil War, most attorneys in South Carolina are amazed to learn that this earlier association ever existed.

Lawyers’ biggest problem

Every attorney realizes that there’s a problem with the practice of law, so basic that it practically dwarfs all others—the law needs to be organized and codified. Legal research is time-consuming and maddening. For example, the law in 1811 required the court of appeals’ opinions to be recorded. Opinions decided in Charleston were to be stored in Charleston, and those decided in Columbia to be kept there. However, when the court of appeals met in Columbia, the judges couldn’t remember their decisions from Charleston (and vice versa); this meant that new opinions had to be postponed until precedent could be researched.
Federal records, including documents dating back to the state’s earliest history, are in sad shape. Stored haphazardly in the clerk of court’s office on the first floor of 23 Chalmers Street, they are scattered and beginning to deteriorate.
Codification is the big buzz word. This is not just true of the statutes but of the common law too, with the need for a comprehensive American digest being particularly acute.
A set of modern rules of procedure is needed to regulate the litigation explosion as the state grows. The judges have come up with a plan and issued orders setting forth a few rules. Later these rules are extended by subsequent court orders and in 1836 are compiled into a 36-page booklet entitled Rules of the Courts of Sessions and Common Pleas, of the Court of Equity, and of the Court of Appeals of South Carolina published by W. Riley, 110 Church Street in Charleston.

Dressing up for court

As a young, hotshot lawyer and solicitor-in-equity, you must look the part. Court rules require the “habit of the gentlemen of the bar [to] be black gowns [i.e., robes] and coats.” The clerk of court had to wear a black robe too. The sheriff was under orders from the judiciary to enforce the rule. On the other hand, the sheriff had his own dress code. He had to be decked out in a black coat, a cocked military hat and a sword.

Riding the circuit

Carl Benz will not be born for a decade, and his Mercedes Benz will not be on the market for quite some time. Equestrian travel, including buggies and horse-drawn coaches, is the norm. Older lawyers sometimes complain vociferously of painful backs when they arrive at court, having ridden for hours in saddles devoid of lumbar support. The court of appeals is aware of the dangers of riding the circuit. That’s why sheriffs are asked to escort circuit judges and chancellors back and forth to their lodgings during court terms.
Travel between circuits is difficult for other reasons. Greenville and Spartanburg are not connected to the lower state by railroads. Some towns are literally sealed off from civilization when rivers rise, flooding the roads. Runaway horses can throw a rider. Wild animals and highwaymen are potential dangers. Everyone has heard stories of circuit-riding lawyers injured when their horses stumble over fallen logs. At a meeting in the Richland District Courthouse, you heard it said that Judge Frost’s trunk recently was lost when it fell off the back of the stagecoach en route from Greenville to Laurens Court House. The poor judge had to hold court for a week wearing the same clothes in which he’d arrived.
On the other hand, travel is not always bad. Riding horseback through the countryside on a warm spring day can be glorious. Sometimes the judge and trial attorneys travel together from one town to another, occasionally stopping for lunch, claret and conversation at a nice grassy spot en route.
Court week, especially in the rural counties, is a great social event. The circuit judge or chancellor is treated like royalty by locals. Local dignitaries sometimes are allowed to come inside the courtroom bar. Hawkers, including those who sell patent medicines fortified with opium or alcohol, set up outside the courthouse. Almost a festive atmosphere prevails.

Crime and punishment

It’s not uncommon to walk onto the courthouse grounds and pass a prisoner with his head and arms in stocks. It might possibly be someone you know (but hopefully not a relative). Whipping is a common punishment but is so humiliating that afterwards, the whipped man usually leaves town.
Defendants have it tough. In the trial and court of appeals’ courtrooms is a lonely European-style prisoner’s dock where defendants sit or stand.
As a law student, your supervising attorney taught you the black-letter evidence rule barring a criminal defendant from testifying on his own behalf at trial. English evidence writer (and well-known eccentric) Jeremy Bentham excoriates this rule. Condescending Harvard Law Professor and Supreme Court Justice Story harrumps and criticizes Bentham for his views. You agree with Bentham that the rule is stupid, but who are you to contradict Justice Story? Moreover, this type of exclusionary evidence rule is accepted dogma and will never change.
You are amazed at how many crimes are punishable by death. Why, petty larceny is a capital offense for goodness sake! A pick-pocket can be put to death if convicted. Therefore, it wasn’t surprising when you read that the Ninety Six grand jury requested that horse stealing be made a capital offense for the first conviction. In fact, 165 crimes are on the record books as capital offenses in 1813. Lucky defendants get benefit of clergy for the first conviction —that is, he’s branded instead of being put to death.
Justice is not only severe, it’s swift—and I mean swift! When your client’s conviction is affirmed by the state court of appeals, you don’t consider appealing to the U.S. Supreme Court. It has no appellate jurisdiction in criminal cases. Instead, he may expect to stand in the court of appeals’ dock on Monday hearing the judge tell him that his conviction is affirmed (ending with the prayer “and may God have mercy upon your soul”) then swing from a tree in nearby Potter’s Field before the weekend.

Tunc pro nunc?

Ok, back to the present. Now, do you really want to ride horseback from Columbia to Greenville for court with that bad back of yours, or is your BMW convertible with its lumbar support looking a bit better? Would you rather have your client face death for a petty larceny conviction? Well, maybe, maybe not. I think I'll stick with the way things are today. How about you?

Thursday, January 12, 2012

Legal fallacies and things about jury trials you might not know (or agree with)

Sometimes lay people are amazed at the evidence and other procedural rules that control jury trials. Also, what passes for common knowledge about the law often is dead wrong. Here are some facts about jury trials and the rules that regulate them that might interest you. These are SIMPLIFIED versions of these legal concepts. (Speak to a lawyer about the rest of the story.)

1. "The victim says she'll drop the charges before trial."
A victim of a crime does not bring criminal charges against another person. The prosecutor brings criminal charges. A prosecutor (often in magistrate's court the police officer is the prosecutor) pays close attention to whether a victim wants a prosecution to go forward to trial, but the victim cannot drop criminal charges. Frequently in domestic violence cases, the prosecutor will still push forward even if the wife doesn't want her husband to be tried.

2. "I have signed, notarized statements from five witnesses that I'm gonna bring to trial."
Don't write a check on using these at trial. Hearsay is roughly defined as a (a) statement made before a witness gets on the witness stand and (b) which is offered for its truth. However, what most people don't know is that documents are hearsay too, unless the documents were written by an adverse party or there is another exception to the hearsay rule. (Almost anything that your party opponent says or writes before trial and which helps your case against him, is not hearsay.) Parties, especially in magistrate's court, often bring notarized statements (a.k.a "affidavits") of witnesses to court only to find that the statements are inadmissible hearsay. Interestingly, Scotland has essentially abolished the hearsay rule, and it is almost an afterthought in many other countries.

3. "He told me that he has insurance and that the insurance company will probably pay my damages. I'm gonna tell that to the jury."
Unless an insurance company is being sued directly, the fact that a party has, or doesn't have, insurance is kept from the jury. In most states, the insurance company is not a party. For example, when a friend is about to sue a buddy, he is sometimes told by his lawyer, "Don't worry. You're not suing your friend - you're suing his insurance company." Wrong. The friend is being sued - the insurance company merely steps in to hire a lawyer and pay the claim.

4. "I'm going to testify that he offered to pay me money to settle."
Juries are barred from hearing that one of the parties offered to settle the case or pay medical bills. The idea behind the rule is that no one will offer to settle unless he is sure that his settlement offer won't be used against him at trial.

5. "I'll be a character witness for you in your personal-injury case."
Generally speaking, a jury will never get to hear this because a party's character is inadmissible in a civil case. She cannot put up witnesses to say that she is a great person. The rule is reversed in a criminal trial though.

Speak to a trial lawyer about these and other trial matters. Evidence law is very complex. The above examples do not give the exceptions to the procedural rules.

Thursday, August 26, 2010

How many trials has your lawyer tried in the past year?

Monday, I resumed teaching (part-time) at the University of South Carolina School of Law since 2003 when I switched to the Charleston School of Law. This brings to mind one of my pet issues: the vanishing trial lawyer.
What is the truth? It’s common knowledge in the bar and judiciary that jury trials are going the way of the dinosaur. I struck a jury in Orangeburg recently. The judge’s clerk told me that they’d not tried a civil trial since last summer, seven months earlier. Last year one federal judge in South Carolina mentioned that he’d begun his first civil trial of the year - in November! Truthfully speaking, most cases have always been settled out of court. However, trials are so rare these days that young lawyers have no realistic opportunity to learn. I speculate that one or two in a hundred lawyers try jury trials to completion in a given year. The percentage may be a bit higher in family court or workers' compensation litigation, but that's another guess.
"Litigators" now rule the legal battlefield. The difference between a litigator and a trial lawyer is summed up in one word - trial. The King of Torts Joe Jamail in a recent ABA Journal commented on settlement conferences called mediations:
“They’ve invented this new term, litigator. What the #!*@ is a litigator? I’m a trial lawyer . . . . There are some lawyers who do nothing but this mediation bull^!*#. Do you know what the root of mediation is? Mediocrity!”
The reason jury trials are becoming scarce and why (I think) trial errors are becoming more frequent is a lack of training. Lawyers who don’t know how to try cases are afraid of the courtroom. So they settle. Not the type reputation a client wants for her lawyer. It's like a football team with no long-yardage threat.
Trial advocacy, the class I'm teaching, is no longer required in this state. That's a bad thing. After becoming a member of the Bar, there's no requirement that South Carolina lawyers ever complete a trial advocacy course. Nor is a new attorney required to attend a single trial-related continuing legal education seminar in his or her entire career. Between the LSAT and their retirement parties, South Carolina lawyers can go entire careers without taking trial-related legal courses.
Ask your lawyer how many jury trials or family court trials he or she has tried to completion in the past few years. You're entitled to know.

Tuesday, June 29, 2010

Making Sure We Put the Client's Emotions First

Trials are not all about the lawyers. Trials are all about the clients. Clients have feelings. I've tried cases and babysat clients for close to 22 years, mostly in jury trials. I've also prided myself on helping clients get through a trial by minimizing emotional turmoil. Imagine how I felt when I became a litigant.


The litigation was in family court. I filed for divorce. My lawyer was very experienced and did a great job. I was consulted on everything of substance. The first thing I learned was how time consuming the whole thing was. In my law practice, some of my clients want to know everything that happens in their cases. They told us in law school to flood the client with correspondence, but I just wanted to hide from the case. I didn't want to hear anything about it, much less deal with letters and phone calls that at times seemed to come every day. Each letter was a snake reminding me of the divorce. I think the flood rule should be reconsidered.


My job was interrupted. It was difficult to get through work. Information about the case had to be gathered from Lord knows how many sources, calls returned, emails replied to - all the while receiving emotionally sensitive news when I was in other stressful court proceedings with my own clients. The most benign communications from a lawyer or paralegal can cause a client's stomach to twist. So in my opinion, we lawyers should recognize that our clients might be twisting on a spit at work or at home with stress when we call and drop legal bombs.


I've tried many jury trials over the years. It was different in the courtroom sitting next to my lawyer as a client. I love the formal setting in a jury trial and the ability to walk over to the adverse party sitting at counsel table during my closing argument and let him have it. In my case, we parties were gently questioned at counsel tables by the court about the equitable division agreement. I remember thinking thank God I don't have to walk up to that witness box and be cross-examined. I guess the point is that no matter how much experience a client has at public speaking, he or she needs to be closely monitored and talked-down before she testifies.


Moreover, merely being in close proximity to the adverse party at trial brings its own set of emotions and should be carefully avoided, unless the client has an overwhelming need to do so, and even then it's probably not a good idea.


The long and short of all this is that even though our clients tell us lawyers that everything is "OK," it very well might not be. There's no client who couldn't use a bit more tea and sympathy.