Beyond the Bar

• Citation: Vol. 37 No. 3
• Year: 2025

BEYOND THE BAR

Vol. 37 Issue 3 Pg. 19

South Carolina Lawyer

December, 2025

Turnips and Trial Ethics

BY WARREN MOISE, JUDGE

Toby Jacobs might not be remembered by some of you, but he was a good friend of mine. We traveled across the Great State of South Carolina playing music with a singer named Julius Cobb for years, back in the 1970s. Before he took up soul music, he worked as a debt collector for a finance company in Columbia. His company's debtors often forgot to pay their car loans, and Toby would have to call them up to badger them for the money. He hated it.

Anyhow, one day we were driving to a job in the "Julius Cobb and Massage" Econoline when he had to make a call to a debtor.

Toby - "Mr. Debtor, you didn't pay off your loan this week. My manager is really angry at me."

Debtor - "Well. Bo. I'm sorry and all that, but you can't get blood from a turnip."

Toby - "Sir. I didn't loan money to no turnip."

Can't argue with that.

Sometimes lawyers are like turnips. We all get our chance to look obtuse and silly, especially in court. Me? I've been a poster boy for the turnip industry. Young lawyers, like turnip seeds, especially need time to grow roots and push through the dirt to the sunlight. Everyone, legal secretaries included, has more practical knowledge than young lawyers do. Each day they're pitted against experienced attorneys. As for litigation, they've seen more litigation on television than in courtrooms. In short, new attorneys sometimes don't know "how things are done." Searching for an identity, and wanting to make a name for themselves, they're impressionable. Sometimes they get the wrong impression.

Here are some trial-related practices I once thought were slick and professional like the TV lawyers. Now, I just think they're sleazy. Some lawyers might disagree with me, but here goes.

Who Cares? The Jury Heard It

Ever tried a case against a lawyer who asks a question, or makes a statement in opening or closing, knowing that it's patently improper? For example, have you heard an adversary question the investigating officer in a wreck case with "Isn't it true. Officer Smith, that you gave the ticket to the defendant for running the red light, not my client?" Then, after an objection, the lawyer says. "Sony, judge" or "Withdrawn, your honor." Or, without first bringing the matter up with the judge, trying to slip into evidence a criminal conviction that's likely inadmissible?

The rules say a "lawyer shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence." S.C. App. Ct. R. 407, § 34(e). If you reasonably believe the testimony you seek to elicit is inadmissible, don't ask the question. In fact, the Supreme Court of South Carolina reversed in one case because the plaintiff's lawyer repeatedly cross-examined (without getting an answer) the defendant about his liability insurance in a personal-injury case.

As I see it, your adversary might offer two types of evidence against you: (a) garden variety prejudicial evidence and (b) highly prejudicial evidence that could cause a mistrial if improperly admitted. An example of the latter is: "Isn't it true that 11 years ago you were convicted of having sex with your son?" or "Didn't your own adjuster admit that you were at fault and offer to pay $500,000 to settle?" You know your case better than anyone else and will recognize the super-prejudicial stuff. I suggest that you take these matters up with the judge before you pop them out at trial. As Judge Roger Young once said, "I can't un-ring that bell."

The same probably goes for opening statements. When you reasonably believe you JI have an uphill battle getting a fact or line of questioning into evidence, be cautious about mentioning it in the opening. The ball bounces both ways. A motion in limine is your best defense against having an adversary sink your case by a cheap shot in the opening or during the rest of trial.

Misleading the Judge, Jury, or Your Adversary

Sometimes in the heat of battle, a lawyer says something he wishes or suspects is true but later learns that it's incorrect. There are grey areas in every trial. However, the rules give us guidance.

If you told the judge or other lawyer something important ("material") that you later learn is incorrect, or when you've offered material evidence that later turns out to be false, you must take reasonable remedial measures to correct the misconception. This includes, when necessary, disclosing the matter to the judge. S.G. App. G.R. 407, § 33(a)(3).

Conflicts With Your Client

How about when you learn that your client wants you to offer false evidence or is about to testify falsely? You may refuse to offer the evidence (except the accused's testimony in a criminal trial). See Id. See also S.C. R. Evidence Rule 614 (allowing the court to call a witness) is available to help in situations where a witness may have important testimony but has changed positions. (Note: the common law in the Fourth Circuit and South Carolina regarding courts' witnesses is similar but not identical.)

Problems sometimes arise in the context of insurance-defense litigation. Assume that a defense attorney has a hunch that his client/defendant (being sued by the defendant's wife) wants to give exaggerated or false testimony to help the wife's case. Also assume that the insurance adjuster asks the defense lawyer to impeach the client's false testimony. What to do - put up the client's testimony which the attorney merely suspects is exaggerated or false, or impeach the client as the adjuster requests? Tough choice. In an extreme case, the defense attorney might have to withdraw under S.C. AGP 407, § i-7 However, he probably cannot impeach his own client's credibility to benefit the insurer. Cf R. Davis Howser, "Blessed Be! The Tie That Binds: Conflicts of Interest Revisited," The Defense Line 11-14 (Winter 1997).

Misstating the controlling law

Lawyers aren't required to vouch for or have personal knowledge of facts in pleadings or evidence submitted at trial. Nor is an attorney required to present the law impartially to a judge. However, a trial attorney must disclose directly adverse controlling law when the other lawyer fails to do so. SGAGR 407. § 3.3(2). The same goes for misleading statements of facts or evidence she knows are false. Id. at Comment [2].

Witness behavior during breaks in trial or depositions

This rule starts out simple. You're not supposed to talk to your witness about his testimony during a break in trial or a deposition. Thus, if the judge gives the jurors a smoke break, you cannot speak to your witness about problems in his testimony or about things you intend to "clarify" on redirect. (During a lunch break, there's no prohibition against just having lunch with your client, though some lawyers decline to do so because of the appearance of impropriety.) The same goes for deposition testimony, except to decide issues of privilege or to make a motion for a protective order, or regarding documents not provided (or identified) at least three days before the deposition (two days in the state courts). Local Civil Rule 30.04(H); S.C. R. Civ. P. 30(j)(8). (The rules don't specifically say whether providing and identifying documents in response to interrogatories and requests to produce satisfy this requirement.) Probably the best course is for a lawyer also to advise his client not to consult documents (e.g., a deposition transcript or statement), or to talk to the client's friends present in the courtroom, during breaks in trial testimony or a deposition.

OK, that's the easy part. Now for criminal prosecutions. The accused also may be barred from consulting with his lawyer on a break between direct and cross. Perry v. Leeke, 832 F.2d 837 (4th Cir. 1987). However, the accused's constitutional rights might be violated if prohibited from consulting with the attorney overnight. Nonetheless, a defense attorney is still not allowed to coach a client on a break about the client's testimony, even if the completion of the testimony is delayed overnight.

A friendly conversation with the jurors

Everyone knows that you're not supposed to contact jurors during trial. But how about before or after trial?

Before trial, direct contact by lawyers or litigants with jurors who will be in the venire is barred. Even indirect contact, such as hiring an investigator to interview jurors is the stuff of which disbarments are made.

The problems usually arise with members of the jurors' families. See United States v. Warlick, 742 F.2d 113 (4th Cir. 1983); S.C. Bar Ethics Advisory Opinion 93-27. In the state courts, members of the juror's family may not be contacted if within the "sixth degree" of kinship. In federal district court, the bar extends to "members of the family" as described in Local Civil Rule 47.03 (February 22, 2023).

How about after trial? Generally, contact between trial lawyers and jurors is allowed, unless barred by the judge or applicable rules. Many years ago. some of the older judges frowned upon any post-trial juror contact. In federal courts, lawyers "do so at their own peril," at least in civil trials. Local Civil Rule at 47.05(B). Since I have been practicing law. I've had no judge prohibit lawyers from contacting jurors. To educate lawyers, one former circuit judge encouraged respectful, proper juror contact. There is an ethics opinion, however, indicating that lawyers should not write a letter to all jurors thanking them for their service. S.C. Bar Ethics Advisory Op. 77-04.

If there is no prohibition by the court, and you want to speak to a juror after trial, I'd suggest that at the outset you inform the juror who you are, that she need not speak to you at all if she desires not to, that post-trial contact with consenting jurors is not prohibited by law, and then ask her if she'd mind speaking to you for a few minutes. Be extremely solicitous of the juror's feelings, and end the call immediately (but politely) if you believe the juror is unappreciative of your contact. Your comments shouldn't have the effect of harassing the juror or trying to influence her actions in future jury service. Local Civil Rule 47.05(B).

And finally ....

Here are three final suggestions I believe might help in making a greyarea type decision about what's right or wrong. Use 'em as you see fit.

• If you told the other lawyer you'd do something, abide by your word, even if its not in writing.

• Being rude, haughty, or arrogant doesn't mean you're a good litigator. It doesn't mean you're a "legend.'' It means you're a jerk. The best lawyers I've known are polite and respectful. Remember the Lawyer's Oath. It's the law.

• Give the other lawyer a break on procedure when he or she needs it and it does not materially affect the trial. I don't mean that you should let a slack attorney shift the burden to you. Just remember that no one's perfect, and what goes around comes around.