Pro tip: If you're suing a defendant for fraud, check if their criminal case had the same judge.

 

“What’s great about being a trial lawyer is if you do it long enough something weird and wacky is gonna happen,” Jonathan Pope said to an audience of lawyers and judges at the 2023 State Bar of Georgia’s Annual Meeting on June 8 in Savannah.

Pope, a plaintiffs’ attorney, said he has seen almost 50 jury trials throughout his career, including a dental malpractice case where a dentist was abusing his own stash of Fentanyl and a trucking case where a driver forged his medical certificate.

He, Darren Penn, Laurie Speed and Michael Terry, were among a slate of panelists swapping war stories and takeaways from memorable trials over the course of their careers.

A word of advice from the pros? If you’re suing a defendant for fraud, check if their criminal case had the same judge.

‘Bracelet Buddies’

According to Penn, while lawyers do their best to be understated, they all have their quirks. For example, he said he can’t wear socks at trial. Recently, Penn chose to accessorize with a black, beaded bracelet he picked up on a trip with his wife. What happened next was “was one of the strangest things [he'd] ever seen.”

Penn was trying a case with Kathy McArthur, against his former classmate, Page Powell of Huff Powell Bailey. “I thought this was fantastic; I’m excited to try a case with Page,” Penn said. However, as Penn walked into court on the day of the trial, he noticed Powell wore the same accessory.

At the end of the case,  the litigants had the chance to talk to the jury and find out what was important to them. According to Penn, “One of the first things out of one of the jurors’ mouths was: ‘I know you guys knew each other for a long time. What are you, bracelet buddies?’”

However, despite these moments of levity, Penn has seen his fair share of courtroom conflict through mistrials and hung juries. He stressed the importance of professionalism between counsels.

“Think about where your opponent is and what their duties are,” Penn said. “They come from a different business model. They bill hours, have responsibilities to their clients and oftentimes some of the stuff that might not be the most favorable is driven by the client.”

‘Never Events’

Speed said she has tried many multimillion-dollar medical-malpractice cases, but one of the outliers was a pain and suffering case out of Habersham County.

According to Speed,  a retained foreign object case is a ”never event” that “shouldn’t happen” in the medical world, but when her client died and the doctor refused to give consent to the settlement, the case went to trial in Habersham County in February 2020.

The experience led Speed to offer three points on professionalism:

• Don’t take medical malpractice cases you aren’t willing to try—you can’t count on the defense settling, as that probably won’t be the case.
• The death of a client can be hard, but if you’ve committed to a case, you need to see it through.
• When trying cases in a smaller venue, be cognizant of your appearance and behavior. When Speed was trying a case in Habersham County, one of the jurors was her waiter, and another, her mechanic.

“It doesn’t matter if its a $150,000 med mal case or a million-dollar, med-mal case,” Speed said. “They’re hard, they’re expensive, they’re difficult, and I thank part of professionalism is you’ve got to do it.”

‘The Tale of Randy Bigfoot’

Terry said he ends up naming many of the cases he tries, with titles like “Ain’t That a Kick in the Head, “Jim Butler and the Empty Hand” and “The Tale of Randy Bigfoot.”

Terry said he tried his first case in Cobb County about seven weeks out of law school, after roughly two hours of instruction from a junior associate at his first job. His assignment: to bring a plaintiff’s fraud case against a used car salesman named Randy Bigfoot for selling his clients a stolen truck.

In Terry’s recollection, Bigfoot showed up to court sporting a walrus mustache, green leisure suit, eel-skin cowboy boots and a Rolex watch. “If you could have a caricature of a used car or used truck salesman, he was it,” Terry said.

“The first thing I did was call Randy Bigfoot to the stand,” Terry said. “And I had him sworn in and ask, ‘Sir, are you the same Randy Bigfoot who was convicted in 1983?’ And I have a certified copy of that conviction and he goes: ‘Convicted? I think you might have sued the wrong Randy Bigfoot. I’ve never been accused of a crime, or convicted of a crime—I’ve never been accused of fraud—’”

According to Terry, just as he tried to cut Bigfoot off, he heard the judge say, “Shut up, shut your mouth.”

“And I’m just frozen solid,” Terry said. “[the judge] was yelling at the witness, he wasn’t yelling at me, and he said [to Bigfoot]: ‘You need to shut your mouth now, you’re about two words away from a perjury indictment. Turn around and look at me. You may remember me from your sentencing.’”