Weekend Update with EB – April 20, 2024

TRANSCRIPT

Hey there, EB here. Hello to Premium Members. Time for our weekly update. Obviously this week we talked about on some of the social media that, contrary to his plea agreement and his promise, Alex Murdaugh appealed the 40 year sentence that was given by Judge Richard Gergel late last month. Doesn’t come as a surprise, like I said, this guy will, you know, naw his leg off to get out of a trap. And, you know, he gives his word and signs a plea agreement and despite that, he’s going to appeal. I certainly understand him appealing his murder conviction. But appealing this sentence, when it was a negotiated plea, with the fact that Judge Gergel did give notice that there he was going to consider an enhancement based on the seriousness of these crimes, an enhanced sentence, and what he meant was the defendant, Alex Murdaugh and his trial team, feel like the Judge Gergel  gave too much time for financial crime case. And as we talked a couple of weeks ago, Alex was making the analogy that with Madoff and with Elizabeth Holmes and some of the other Wall Street type trials, that they only got, you know, between 10 and 20 years and Madoff only served 12. And that, Alex, you know, his crimes were only about $10 million and these were in the billions. And one of the distinguishing factors was that, you know, those people were investing money to make money with the Bitcoin and other investments. And our clients and the victims of Alex were needing their money for the rest of their life for loss of loved ones, loss of income, medical bills. 

But what really irked Judge Gergel was, he said that what you have done to our legal profession, what you’ve done to the reputation of lawyers. This is nothing that I’ve ever seen before. And so that was the basis for him giving a sentence. So I’m surprised that Harpootlian and Griffin signed on for this appeal. But there was a quote in the paper by Jim Griffin today where he said that he felt the sentence was wrong, too much and that they’re appealing on Alex’s behalf. So they are all in, up to their necks, and they don’t seem to be wanting to swim to shore. So we’ll watch that appeal. We’ll also look at whether, you know, there’s going to be a trial scheduled for the Labor Day roadside shooting, alleged shooting of Alex and cousin Eddie. So that’s really it on the Murdaugh horizon.

The other thing that came out this morning was James Smith, who was a former gubernatorial candidate against Henry McMaster, who lost, he’s a Democrat, he is a lawyer, and really a former House or representative member in our state house. He served in the Iraq War, he was amazing in the sense that he felt that he had a duty to serve our country. And so he left his legal job, he left his House position and he went and he served over in Iraq, which was an amazing sacrifice. He was running for a judge’s seat that we need here in the Fifth Circuit, which is Richland, Kershaw County area. He made it through the judicial screening committee, his opponent dropped out, which meant that he was the only candidate. All he had to be is approved by the legislature. And he made it through with high marks, total competency. 

But what ended up happening is when they were voting for him, the House and a significant majority in the Senate started to get into his political beliefs and that’s never supposed to be asked of a judge. A judge is not supposed to be questioned about their police political beliefs are appointed because of the politics that they may personally believe, they’re given an oath, and they take an oath to apply the law equally and as written. And surprisingly, shockingly, the House would not vote James Smith in as a judge, they turned him down. It’s never happened before. It’s never happened for political reasons before. And so what they said is go right back to committee, and go back and new candidates will come forward. I assume James Smith will not run again, because they’ll face the same hurdles, regarding maybe some of his views he has publicly expressed, possibly when he was running for governor. So that that really was a mortal blow to lawyers, that, you know, we have an obligation to represent clients, and we don’t judge our clients, we represent the process, we want to make sure the process is fair and due process is given. And if it’s a criminal case, the state has the burden to prove guilt beyond a reasonable doubt. It’s not the defendant’s obligation to do that. And we want our judges to apply the law equally. But to now start choosing judges because of their political beliefs, is starting to really scare me as a lawyer. 

During our last Cup of Justice episode, I talked about the trust account and how sacrosanct it is to attorneys and what our bar considers it to be. And it was in relation to the Marvin Pendarvis matter that we are handling, where it is alleged that he took money from his clients, and then started writing checks from a trust account. I talked about that a law firm has two accounts and an operating account. And that’s where all my income would come in that I’ve earned. And I write checks out of that, for my law, practice utilities for my building, and, you know, paychecks for my employees, the trust account, is exactly what it says it’s an escrow trust account, which held money in there is held by me in trust for my clients. It’s their money, not my money. So if I earn a fee, that is deposited with a settlement check in a trust account, I gotta bring that fee, write a check out or transfer the money out from my trust account, to my operating account before I can enjoy that income. And then the rest of the money the net monies go to the clients. Well, I talked about that we have what’s known as an interest only lawyers trust account and IOLTA, I-O-L-T-A, and the interest goes to the bar, we don’t get that interest. And you know, at any given time, I could have hundreds of 1000s of dollars in my trust account for settlements that we have achieved on behalf of our clients before all the money’s dispersed. And so someone who was a cog listener asked, well, what is the bar do with that interest? And I assume they make a lot of money. Because we have real estate closing lawyers who, you know, handle closing and the sale price is could be 300,000 $500,000. And, you know, depending on how long that money stays in there, the interest is huge. And so the bar does on their financial statements show how much money they’re earning in IOLTA money and that money goes to fund pro bono programs pro bono, meaning lawyers performing services without getting paid. It goes to pay indigent people that need counsel that there’s money, and also it goes to reimbursing some clients that suffer damages as a result of their lawyers stealing their money or making a mistake with their money and they won’t give money back whether it’s a fee dispute. And so that’s where some of that money goes. But unequivocally lawyers cannot profit from anything in their trust account. They can’t start a trust account and have, you know, $3, $4 or $5 million in there and earn interest on their clients’ monies and that becomes theirs. So that will get you disbarred if you don’t set up an IOLTA interest bearing account.

So now with that weekly update given, we’re going to move over to the Law Library and we’re going to talk about some legal terms and those terms are burdens of proof. So you have burdens of proof in both civil cases, and criminal cases. Criminal cases are those that you’re charged with a crime and you can end up going to jail or prison, civil cases or monetary cases. 

So there’s three burdens of proof, preponderance of evidence, clear and convincing standard of evidence, and then the one you hear most about, the beyond reasonable doubt. So let’s talk about them. 

Preponderance of evidence, it simply means more likely than not. And this is the standard in most civil cases, except where there’s fraud, and some other type of specific civil claims, it becomes clear and convincing, and I’ll explain that, but most 98% of the claims are preponderance of evidence. That means more likely than not the plaintiff prove their claims that they sued over. And that means the scales of justice tip ever so slightly in the favor of the party that is making the claims. And if you don’t meet that preponderance of evidence, and it tips against you, you don’t get a recovery. So what does that mean? I always like to equate it with a football field. A football field is 100 yards, it has 50 yards on one side 50 yards on the other. In a civil case, all I would have to do if I’m the plaintiff, is catch the ball on my 20 and move the ball, just a nose past the 50 yard line. If I move it past the 50 yard line, I’ve met my preponderance of evidence burden of proof to prove claims that I’ve sued over whether it’s breach of contract or negligence or something. 

The next standard is called clear and convincing, which is a civil standard. So in cases of fraud, or particular statutory claims, the burden of proof may be clear and convincing. What is that? That’s like 66%. So if the preponderance of evidence is like 50.5%, clear and convincing standard that I would have to prove my fraud claim is about 66 and a third percent, or it gets me to like the 33 yard line of the other side, the opponent. So if I caught my ball on the 20, I would have to cross the 50. I meet the preponderance of evidence, but if it’s a clear and convincing standard, I got to get to the 33 yard line. It’s pretty hard, but not so insurmountable. You could see it happening, I’m not in the red zone with the 20 yards and in and many teams get there and end up kicking a field goal.

That beyond a reasonable doubt standard, which is in the criminal realm, in the criminal cases, is almost 100% or almost catching the ball on the 20 and bringing it all the way down and crossing the line for a touchdown on the opponent’s field. Now, it’s like 98%. Sure, so maybe you get to the two yard line or the one and a half where it’s beyond all reasonable doubt not any doubt. Not an unreasonable doubt. And not all doubt. But just anything reasonable. You can’t have unreasonable beliefs and in saying that the government didn’t meet its burden for a guilty verdict against the crimes charged because you have unreasonable beliefs they have to be reasonable. And Noah Pines gave the greatest definition of beyond reasonable doubt that I’ve ever heard. And that is, if you are charged with making the decision to terminate somebody’s life and enforce a Living Will where they say that they want their plug pulled, or they don’t want hydration or nutrition, and it’s on you and you make that decision to discontinue hydration and nutrition or pull the plug that’s providing oxygen to the patient. Then you’ve made your decision beyond a reasonable doubt that that person cannot survive. There’s no question. But if you didn’t pull the plug, and you didn’t give hydration and you wanted to continue to give hydration and nutrition, then you obviously had a reasonable doubt. So it’s almost getting over the endzone, into the endzone maybe to the one or two. And so those are standards of proof. 

The second term that we’re going to discuss is called spoliation of evidence. And spoliation of evidence is, you may have heard it, it’s used in a civil case, it’s used in criminal terms, mostly in civil cases. And so let’s say we have a car that rolled over and we’re making a products liability claim on the airbags that didn’t go off, or a seatbelt didn’t restrain when the car rolled over. You have to preserve the evidence, whoever has that car has to preserve it, so that it can be tested by experts, and that it can be shown in court. And you have to show no chain of custody of who had it and where it ended up. And if somebody was to disrupt that airbag and pull it out and throw it on the ground, or throw it away, or send the car off and get it smashed into metal, or have their experts do testing and cut the seat belt, that spoils the evidence. And so if somebody spoils evidence,  there’s a spoliation of evidence claim. And there could be a spoliation of evidence charge given to the jury, which means that the judge will charge the jury that this party disrupted this chain of evidence and spoiled either the seat belt or the seat or the tire or something that said issue. And that the reason they did that is that it was probably adverse to them to leave it in its current state. And so if you get a spoliation of evidence charge, you can be damn sure that the jury is gonna infer that there was a negative connotation on why you ruined that piece of evidence. And there is a famous lawyer here in South Carolina, and I won’t name him, his son is actually a judge. And in the middle of a trial, the court permitted this lawyer to bring in his expert witness at night to test the seatbelt in a product liability case, and the expert ruined the seatbelt. And there was a huge fight over spoliation of evidence in that case, and I believe the lawyer was sanctioned. So it’s a very big deal. We must preserve all evidence. We’ve talked about electronic storage information, ESI letters, when you sue someone, you always send an ESI letter that says preserve those computer systems, don’t delete anything, don’t delete off your phones or your tablets, laptops, everything has to be preserved. And the same thing goes for evidence. So if there’s, you know, a stairs that somebody tripped on, that weren’t built according to code, he can’t fix those stairs unless you get a court order. And all the evidence is preserved that there’s videos and measurements and photos. 

So that is what spoliation of evidence is and we’ll talk next week about Rule 408, which is a rule that deals with settlements. And oftentimes, let’s say somebody’s walking into a building and it’s a slippery floor and they slip and they crack their head and they bring a claim for slip and fall against the property owner. And they say that this is a slippery floor, that water accumulates on it, you know that and the property owner does something that’s very responsible, they change the flooring. They either put a rubber floor on or they put carpet on there. Well, you can’t, the law doesn’t say you can use the fact that they change the flooring from a slippery floor to rubber to carpet as proof that they knew that the floor was bad because we want to encourage the public to fix or repair or replace dangerous conditions so you could never use that in trial. The fact that well, it’s the fact that they changed the carpet a week after my guy split his head open is evidence of negligence. You can’t do that. So that is another thing about that that wouldn’t be spoliation of evidence. So long as the other side was given a full opportunity to look at the floor, have it tested, have it photographed to be preserved out, and get a piece of the tile for the trial. 

So that is our weekly update. Hope everybody has a good rest of the week and weekend. EB out.

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