Admit Liability And Keep Out DUI?

If you find yourself defending a case where your client (Defendant in a civil case) was a drunk driver, first off, should that be admissible if you admit faulty (liability but not damages) on your client’s behalf?  In Maryland, their Court of Appeals had this issue before them [Full opinion:]

I have had a similar experience when I admitted fault for a Defendant in a fairly minor automobile accident.  The case was tried in Dorchester County, with a verdict for the Defendant.  Thereafter, the trial judge granted a new trial to the Plaintiff’s attorney to correct a purported error by the court that it should have admitted into evidence that the Defendant had been drinking.  [Only evidence that there could have been as to my client drinking was his deposition testimony that he went home from work, got a shower, fixed dinner for himself, and then went to play with his league in some games of pool, where he had a whole two (2) beers.]  I had argued (unsuccessfully) that the jury had found no actual damages (and thus the verdict for the Defendant) with the drinking aspect not being relevant as to causation (as liability was admitted) and was not as to damages either, as punitive damages require a finding of actual damages, which had not occurred.  I lost the argument, and had to try the case again.  Thankfully, the result was the same for me and for my client:  A verdict for the Defendant.

This September 2010 Maryland opinion has some more difficult facts, as you can see.  The Defendant driver, who was driving his wife’s car, had a history of substance abuse, a criminal record, and a record of driving violations.  Even with his running a red traffic light, his drinking, and indeed his being drunk, was kept out of evidence and affirmed on appeal, as this Maryland legal blogger notes:    It is always good to see how other courts address some of the thorny problems that you might face in the courtroom.  So, defense counsel–read this article and the opinion, and learn about some ways to win!

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Police can search your cell phone without a warrant?

First, understand that the search of your cell phone, at a minimum, would have to be after you were arrested for some crime. California allows it because it is a “search incident to arrest.” Understand that a search incident to arrest has some gray areas in it, for that you can be sure. See, for example, Generally speaking, such an arrest is to prevent destruction of evidence and to prevent access to a weapon, the latter of which the police are more worried about.

The law is constantly evolving. One thing that I think is predictable is that the United States Supreme Court will review this at some point. Remember back in January 2012 when the Justices held that a GPS device being placed on a vehicle did require the police to obtain a warrant and not just hide it without notice to anyone (including a judge) that it was being done? Thus, as technology advances, the courts will deal more and more with such things as searches of a cell phone without a warrant and whether it can be done for any arrest (public drunk?), just for felonies, or just when the police can articulate a reason for doing so in emergency (what the courts call “exigent”) circumstances. Until then, maybe you need to use a pattern screen lock on an Android smartphone. Seems that the FBI cannot crack that security:

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Discipline of Attorneys: SC Lawyers’ Oath and Lack of Ellipses in Massachusetts

A South Carolina attorney has been suspended for 90 days from the practice of law for a letter sent to his church’s landlord, a letter which he copied to the previously adverse Town’s manager and the Town’s attorney. For those who think that they can say anything and everything that comes to their mind, read this: (S.C. Sup Ct.; filed 3/7/2011). There are times when we need to write something and let it sit before we mail it (or hit the button in this electronic age). This is an obvious case, where the allegations against the attorney are that he made “statements questioning whether [the town manager] has a soul, saying that he has no brain, calling the leadership of the Town pagans and insane and pigheaded violates his professional obligations, which include his obligation to provide competent representation to his clients; his obligation under Rule 4.4 to treat third parties in a way that doesn’t embarrass them; Rule 8.4 to behave in a way that doesn’t prejudice the administration of justice; and also the letter was not in conformity with his obligations under his oath of office, Rule 402(k) [the Lawyers’ Oath].” So, folks, think before you mail something, whether in an e-mail or (as here) in a letter.

You will note that I used brackets above to show my changes to the quote from the court. Good segue to the Massachusetts discipline for an attorney who failed to use ellipses (which are three periods to show that something has been left out). There, an attorney for Pella Windows in an appeal seemingly quoted all of a judge’s Order, but left out some critical portions of it without using ellipses. The Court called it “as brazen a piece of misrepresentation as we have ever seen.” Here is a summary:

Again, be careful when you are writing, whether it is your first time or not.

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Evidence of Suicide Attempt Admissible as Probative of Guilt

In a case of first impression in South Carolina, the S.C. Court of Appeals ruled that evidence of a suicide attempt was admissible as evidence of the Defendant’s guilt. The case was State v. Juan Orozco, which is found online at

Logically, it does make sense once you think it through. After all, if evidence of flight of one accused of a crime is admissible as probative of guilt, would not evidence of attempt to die and thus escape the consequences of the accused act also be properly admitted?

Our firm knows evidence:

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Be Careful with Arbitration Clauses: First page means just that!

Earlier this week, the S.C. Court of Appeals decided the case of Richland Horizontal v. Sky Green Holdings (found online at Arbitration was sought to be enforced by the Defendant developer who was sued by two owners regarding a Greenville condominium project. The trial court and the S.C. Court of Appeals both held that Code Section 15-48-10(a) of the Uniform Arbitration Act that provides “Notice that a contract is subject to arbitration pursuant to this chapter shall be typed in underlined capital letters, or rubber-stamped prominently, on the first page of the contract and unless such notice is displayed thereon the contract shall not be subject to arbitration” means just that. In other words, if you have a “cover page” that indeed is the first page, even if (as was the case here) you state unequivocally which one is the “first page.” Despite South Carolina having a “strong public policy favoring arbitration,” the flaw was fatal in this case!

More questions regarding arbitration, litigation or other legal matters? Contact me through our website located at

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The day after Valentine’s Day will be busy for divorce lawyers

From what I am told (as I do little family court work, other than Guardian ad Litem work), when there are Christmas gifts to buy, divorce attorneys whip out their credit cards, as new divorce clients just are not coming in. The Christmas holidays are quiet for them. Then comes the first of the year, the credit card bills come in and the divorce client floodgates open.

I never have heard that the day after Valentine’s Day was another busy, busy time for those seeking divorces. Some of the dark tales of woe for the married folks are here: Sure, it is a New York discussion at that website, but I will just take their word for it that the busy times come along.

Although our Charleston, SC firm (at does not show family law as one of our emphasized areas, I do Guardian ad Litem work, as does our associate, Laura Waring. Hopefully, you do not have the same sort of dark Valentine’s Day that the N.Y. Times blog describes, but if you do, call us and we can at least make a referral for you.

May you have a HAPPY Valentine’s!

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Google reveals bias of juror, who is removed from Citigroup case

More recently, the courts have been faced with jurors who posted tweets to their Twitter account. More specifically, a $12 million verdict against Stoam Holdings has been appealed due to a juror posting tweets including “oh and nobody buy Stoam. Its [sic] bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.”

One federal judge was approached about allowing a reporter to tweet during a trial, which was allowed:
Judge Martan told the AP afterwards “The more we can do to open the process to the public, the greater the public understanding,”

In Charleston, SC in October 2010 a local TV station tweeted summaries of testimony during a murder trial. (“News travels at the speed of technology”)

Now on to the Google-related story. A juror already seated on a civil trial against Citigroup became a bit suspect to the defense attorneys when the female juror (Donna Gianell) stopped taking her extensive notes of the trial when Citigroup was putting up its defense. A Google search by the defense’s law firm revealed that the juror was listed in the credits of Michael Moore’s film “Capitalism: A Love Story” which has been described as one in which in which Citigroup was the target of scorn. Even more interesting was the fact that, after the juror was questioned in the courtroom, Judge Rakoff said he thought the female juor “was lying” and then removed her from her status as a juror in the case, according to the court transcript, as reported by the NY Daily News.

Thus, the idea of tweeting in a courtroom remains decidedly against the proper behavior for a juror, but it appears perfectly fine for a news reporter. Nothing appears to be improper for an attorney to Google a juror, but it seems nigh impossible in my trial practice to Google a juror during the brief selection process. This lesson is to go ahead and conduct a Google search after the jury is seated and sworn. This, I just may do next time, particularly in some of my bigger, longer cases.

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Judge allows defense to see Plaintiff’s social media postings

Well…it is in New York State that a judge allowed the defense, and ordered the Plaintiff, to have the Facebook and MySpace posting given to the defense. Found this on a blog, but it refers to a Westlaw source:

Note, however, that the authoritive and more comprehensive ruling is here:

You have to admit that, no matter which side of a personal injury case you usually handle, the court in that New York Case appeared to reason it out, including the review of the relevant Stored Communications Act, 18 U.S.C. ¶ 2701 et seq before requiring the Plaintiff to produce not only her current postings but any that have been removed. The court’s reasoning included the following truism: “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action (see: Hoening v. Westphal, supra ).”

When a claim is made in a personal injury case, and even more so in a defamation case, it opens a Plaintiff’s life up somewhat. Although New York State law is not controlling in the slightest on the courts in South Carolina, I am sure that a defense lawyer or two will want to try this. After all, the family court lawyers have been saying this for awhile here. Now, at least you have some relevant statutes and law to assist you in seeking out the social media postings of a Plaintiff. Tell me if it works!

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Loose lips lose trials–after the fact

Interestingly enough, there were two cases whose appellate opinions were filed in the last week where an attorney lost his case, and thus his client’s case, due to the lawyer’s comments causing an appellate court to reverse a decision in the trial court. One was in South Carolina and one was in Florida.

South Carolina’s case was a criminal case, indeed a death penalty case of Vasquez v. State of SC: (Opinion filed on August 9, 2010.) Certainly the Solicitor, like all attorneys, knows that there is a lot of appellate scrutiny on death penalty cases. In the Vasquez case, the Defendant, who was a Muslim, was convicted after being fired from Burger King, returning at closing time, locking two people in the restaurant’s walk-in freezer (from which they later escaped) and killing two other people. Still, the prosecutor in this Horry County, SC case went too far in the death penalty phase by referring to the Muslim Defendant as a “domestic terrorist” and drew a correlation between his indicted conduct and the events of September 11, 2001.” The case was reversed and remanded with the reminder (shall we call it): “While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done. The solicitor’s closing argument must, of course, be based on this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice. State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007) (quoting State v. Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981)).”

So, in case there needs to be a reminder, let me put it this way: Bias, passion and prejudice are not to be the basis of any verdict with this criminal case also being a reminder to all attorneys, whether involved in criminal or civil cases.

In the Florida case filed on August 4, 2010, the Defendant Daniel Gilbert Andrew Chin, appealed the denial of his motion for a new trial from a jury verdict in the sum of $1,360,740 [yep, almost $1.4 MILLION], awarded to the Plaintiff motorcyclist William Roger Caiaffa, for injuries to his right knee, right ankle, right testicle, and right wrist, arising out of a collision between Chin’s automobile and Caiaffa’s motorcycle. The Defendant Chin admitted causing the accident, so the decision was how much, if anything, should be awarded to the Plaintiff, whose attorney had previously had a case reversed in 2008 for the same reasons, “an improper attack on [the defendant] . . . and its defense counsel.” So, it is not like he was a stranger to letting his lips flap a bit too much. I will defer to the case where you can read the egregiousness of his opening statement, closing argument and reply argument. Here is where you can find the decision:

Attacks upon opposing counsel apparently are not taken lightly in Florida. For example, in an earlier 2007 decision (unrelated to current counsel in the case I am discussing with you), argument that defense counsel was “‘pulling a fast one,’ ‘hiding something,’ and ‘trying to pull something,’ was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury,” requiring a new trial. Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007).

Sounds like a good place to practice law. Too often I hear some argument that defense counsel (me in this example, although I handle Plaintiff’s cases also) is allowed broad use of a subpoena and, if there was something to refute the Plaintiff’s medical claims, I would have produced it. Of course, the problem is that closing argument is an argument on the evidence and reasonable inferences from the evidence admitted at trial, and not an attorney attempting to testify (as I characterize it here) in closing argument.

A 50 year old Florida case also was quoted in the opinion and is worthy of your time and effort to read it thoroughly:

It may well be that any unscrupulous attorney (if there be such) or one
who must choose between suffering the pangs of conscience because
of an infraction of the canons of professional ethics, and suffering the
pangs of hunger, the realization of his family being in want, and the
hounding of creditors may yield to the temptation to overstep the
bounds of propriety where one who by fortuitous circumstances is
faced with no such problem may experience no such temptation.

Juhasz v. Barton, 1 So. 2d 476, 478 (Fla. 1941). And, as the modern day Florida court noted “there is no indication in the many Florida Supreme Court opinions issued in civil cases since that time that its concern is any less today.”

So, as we grow and prosper in the law in South Carolina, we attorneys need to remember a lot of things, not the least of which is set forth here. And, yes, the civility oath kicked in during the last few years. The Utah Bar Association thought to mention our civility oath in a discussion on civility:

Head to head, let us go to trial. Stoop not into the dirt and mud, nor sling such at others. Let justice rein, not attorneys’ personalities.

NOTE: Here I am on our newest website:

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Off the edge “humor” is not defamation of a New York teen

This arose from my posting the following on my Twitter (MaxLaw843) account: “Whether Facebook posts were poor attempts at humor or something else, it was NOT a $6M defamation:” An old high school friend posted back: Well, what is it, if it is not defamation. Abandon for a moment that I am not licensed in NY and know virtually nothing about that state’s law. With that kind of appropriate legal disclaimer….let’s chat about it, rather than my walking down the hallway at my law firm (Grimball & Cabaniss, LLC) and asking our associate who has handled quite a few defamation cases.

What cause of action would it be in South Carolina, assuming our courts would take the same action of dismissing the action if it were to be filed here? A cause of action for nuisance? Nah. And it certainly would not be cyberbullying as it is not really a civil cause of action but instead is a criminal charge.

What the NY court seemed to be saying, in between the lines, is that sometimes people can not be too nice, catty and the whole nine yards….and sometimes we just have to “suck it up” when people make fun of you….or you can fight words with words. (I agree with my friend: It’s a sad thing when people look for such to do that causes embarrassment to someone else.) Defamation has to be a harming of your image, or relationships, etc. so maybe New York did not think that it went that far, at least under NY law. If you have no damages, you have no lawsuit….

Maybe someone else out there has an idea…or has succeeded on a civil cause of action and will come forward and comment on my blog here.

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