Weekend Update with EB – June 29, 2024

TRANSCRIPT

​​Hey EB here for our weekly update. Hello Premium Members, True Sunlight listeners Cup of Justice listeners. EB and my wonderful producer Sammy Berlin are here. We are going to fill you in on the events that have happened this week. They’re currently underway. So with that said, we’ve had a very, very, very active week by the United States Supreme Court. Yesterday, we had a draft opinion released on a six-three vote where the court upheld a woman’s right to an abortion under an emergency medical situation the Biden administration argued for, well, it was Idaho. But the Supreme Court held that in Idaho, even though there’s a state law that says there won’t be the right to an abortion for a woman who is, you know, where her life’s in danger. They held the case that has to work its way through the system, before it gets to the Supreme Court. It got there too quickly and they want lower courts to address the issue. But essentially what it says by six to three vote is that if you are in a medical facility, and there’s a medical emergency that doctors can do the medically necessary abortion on a woman. Iif her health is in danger, and that’s an important decision, obviously, you know, I’ve made no bones about it. I’ve been a pro choice believer my whole life. I think it’s a good decision. I think it’s the right decision. But ultimately it’ll be a long term decision. That is going to be interesting, but it only applies to Idaho. There’s other states where they’re not allowed to get medical abortions, if there’s an emergency situation, and they use what’s known as the Emergency Medical Treatment Act and Labor Act. It’s called EMTALA and that is even if you don’t have health insurance, you go into an emergency room with a medical emergency, the hospital must, must provide medical treatment to you if they take Medicare or Medicaid, any type of governmental assistance. And I think that’s a great, great rule. People who don’t have insurance shouldn’t be left to die if they walk into a hospital with a medical need. So that was a six-three decision. 

Obviously we discussed last week, in a domestic violence situation, the second amendment doesn’t prevent the state or the federal government from protecting a domestic violence victim who charges somebody with domestic violence, that person can have their gun acquisition rights and gun possession rights curtailed. And that is a really good decision. If you listen to our COJ episode this week, Mandy gave some very startling statistics about how many crimes take place in a domestic violence situation. So that was, I think, a righteous decision. Again, it was a six-three vote. By the way, the Idaho decision I think was an eight-one vote, and that was Thomas, who voted against that. 

We also had a decision today where the opioid settlement, is a very large national opioid settlement, of those that are addicted to opioids, where there was a whole slew of distributors and Smith Farm and the Sackler family who owns Smith Farm who made billions and billions hooking people on opioids. They entered into a settlement agreement where it would relieve the Sacklers of individual liability for fraud because they knew that the opioids are highly addictive. The Supreme Court said nope, not going to approve the settlement. It’s revoked, and that the Sacklers could have personal liability. It’s a bittersweet type of decision because we would want this billions and billions of dollars that was going to go to the settlement fund to provide medical treatment and therapeutic treatment and money to victims and people who’ve lost loved ones. So that was another decision this week. 

This Friday, we are taking the videotaped deposition of one Russell Laffitte. That’s a name from the past players from the past. Russell’s doing time in a federal penitentiary. And so we are going to take his videotape deposition that we can use at the trial for the Plyler sisters. Remember the Plyler sisters, lovely girls who lost their mother and brother in a rollover incident. And you know, one question that Sammy just asked me is “Do you think that Russell knows where Alex’s missing money is?”. I think he may know some things. It’s going to be interesting to see if Russell answers questions in his deposition, or takes the Fifth Amendment privilege. He has been deposed already since he’s been in prison. In the Nautilus Insurance case, remember the Nautilus Insurance case? Nautilus paid $3.8 million to the Satterfield estate after Gloria Satterfield died. And we know that Alex took that money with the assistance of Cory Fleming, and they’ve sued Alex and others to get that money back. And when they took his deposition, in that case, Russell Laffitte took the Fifth Amendment privilege. In our case, if he takes the Fifth Amendment privilege, there’s repercussions for that. In a civil case, if you take the Fifth Amendment privilege, the judge will give an instruction charge to the jury and say that everybody has a right to invoke their fifth amendment constitutional rights against self incrimination. But if you do that, there’s an inference that had you testified that testimony would have been detrimental to your position or your defense in this case. And that’s like, you know, it’s a death now if you take the Fifth and it but I wouldn’t be shocked if he does take the Fifth we plan on asking him a lot of questions about how he thought it was appropriate to borrow money from the Plyler sisters conservatorship accounts, which he was the conservator where did you think it was righteous to loan money from the Plyler sisters money to Alex Murdaugh? Who was a significant credit risk at a time where he was overdrawn in his accounts and loans over $300,000. Did he ever get court permission for all these different things that we want to ask them about RusselTV, remember when he did that self serving documentary with one of his like fourth or fifth cousins and you know, right before he had his criminal trial in November of 2022? When he was convicted, he released on YouTube a two part series of him interviewing in front of, like a you know, a Green Acres log cabin, almost on his farm. So we will report to you by videotape. I’m kind of interested to see what he looks like being in a federal prison. He’s there for almost a solid seven years.

So one of the questions is, “How do we take a deposition of Russell Laffitte videotape wise?” Well, we’re not going to be there. We’re not allowed in the prison. They don’t, they’re not set up for you to actually go into the prison with a court reporter and a videographer to take his deposition. So we’re going to take it via Zoom, it’s going to be by videotape. And so it’s going to be interesting. His attorney is going to be in Charleston, South Carolina, I don’t think he’s going to fly down to the prison. So I will report on that.

The other thing is, I had a listener ask me, you know, what’s going on with Alex and cousin Eddie. I mean, that trial has not come forward, the roadside shooting that took place and Labor Day weekend in September of 2021. That’s still an outstanding charge. Alex didn’t plead to it. The state hasn’t dropped those charges. Sooner or later, they’re gonna have to bring them if somebody wants to invoke their speedy trial rights, but I’m gonna give a call to Creighton Waters and see if he can shed some light on what, what, whether that case is ever going to go to trial.

One of the things that I was asked a question on the Weekly Update I do is, in connection with Mica Francis. There’s a HIPAA act, we help him provement Protection Act where our medical records are protected from public disclosure, because, you know, especially in her case, there’s things about mental health treatment and impossibly, you know, prescriptions that she was taking and things that she would said. And someone asked, “Does HIPAA survive death? And or can medical records be released?” And the answer is it does survive death. That was something that I learned today. It surprised me. I think it survives 50 years, so she still has protection or medical records from being released. 

So we’re also on verdict watch right now with the Karen Read trial in Canton, Massachusetts. She seems to be somewhat of a smart aleck. She was admonished seriously by the judge yesterday for smirking while the judge was talking or looking away the judge ripped her a new one. Obviously, it was outside the presence of the jury. They’ve been in deliberations. Thanks, Sammy for telling me, 15 hours so far. I don’t think she’s going to be convicted of murder. I don’t think the state has met their burden whatsoever. But they clearly targeted her. The longer it goes on traditionally, one would believe as a lawyer that it’s beneficial for the defense that there’s obviously friction in the jury room, and they can’t reach a consensus or a unanimous verdict. To my knowledge, the judge has not Allen charged or dynamite charged the jury yet and that is if one of the notes are sent to the judge that says look, we’re hopelessly deadlocked, you know, two people won’t agree. The court will send them back into the jury room to continue to deliberate, they will. The judge will instruct the jury that look, you know, we’ve spent a fortune of money, obviously, almost seven, eight weeks on this trial here, that you’re in the best position to render a decision. I implore you to go back and listen to each other, and have an open mind. Those are called Allen or dynamite charges and that hasn’t been done yet. 

I was watching TV this morning and saw that  journalist Evan Gershkovich is on trial in Russia. It’s just so sad. They shaved his head, he has lost significant weight. Not a lot of participation is allowed by his lawyers in this trial. It’s obviously a kangaroo trial. He’s held in a cage. It’s really really distressing to see these journalists being tried for espionage. You know, after Brittney Griner and him and Paul Whelan, who has been, Paul Whelan has been there I think for five years. It’s ridiculous. You have to have your head examined. And I say this with all due respect to everybody who’s listening to travel to Russia, God forbid, you’re in there and you, you know, get arrested. I just don’t think it’s a safe place to travel.

One of the things somebody asked, that was one of our listeners, they’re wondering at what point could Buster Murtaugh, if he decides to, drop his lawsuit? Let’s say that, and I’ve talked about this, that once you file a lawsuit, you lose control of it. The defendants get to control the discovery process. So let’s say that, six months, nine months down the road, Buster loses his stomach and says, “You know what? This show that I’m in right now, I’m not up for it,  I want to dismiss the lawsuit.” Well, if there were counterclaims, counterclaims, or counter suits pending, where some of the defendants countersued Buster, there’s no way that he could dismiss the lawsuit. He could dismiss his claims, but he can’t force them to dismiss their counterclaims. But let’s say there are no counterclaims and in this case, they’re probably not. There’s just going to be a strong vigorous defense by Blackfin, Netflix and Warner Brothers and a whole slew of other defendants. And let’s say Buster just says “You know what, I’m just sick of this, you know, they’re sniffing up and down inside of me, yada, yada, yada.” He can do that. However, he will be countersued for probably abusive process, malicious prosecution. And in South Carolina in the state act, we have what’s known as the South Carolina frivolous civil proceeding sanction act, where if you bring litigation that is not justified, or if you cause defendants to incur attorneys fees and costs, they can sue for their money back in foot in federal court, I think it’s nine USC 1927. They have a similar, in the federal courts, they have a similar type of statute where you could sue. So if Buster decides to drop the lawsuit, it would not surprise me if these defendants seek sanctions against them and their costs and attorneys fees, but I don’t believe Buster is going to drop it. He’s that would be an admission that you know, I don’t think he could live with. 

So with that said, we’re going to,Sammy and me, put our legal hats on. Okay, so let’s talk about no fault divorce. So, no fault divorce is where in South Carolina you have to live separate and apart for one entire year from your legally married spouse in order to qualify for a divorce. And if you’ve lived separate and apart, and if you have not had intercourse, sexual relations during that year, a court must grant that divorce. Now every time you reside in the house, or you have intercourse, it starts the clock all over again. So traditionally, it used to be that you would have fault based divorce in the 50’s and before and 60’s You’d have to show that somebody was habitually drunk, somebody cheated on you, physical abuse, mental abuse, cruelty yada yada. Then the state started going into no fault divorce were. And there were a lot of rich religious organizations that were against this because, you know, the vows they say, you know, sickness or in health, rich or poor you know, life isn’t always a bunch of roses when you marry. You got ups and downs there’s you know, sometimes you get the roses, sometimes you get the thorns, elevator or the shaft. 

So some states say you can get a divorce in three months, 90 days, South Carolina has a one year state. So even though you want to get a divorce based on fault grounds, physical cruelty, habitual drunkenness, things like that, you can and that would be you wouldn’t have to wait the year to get that divorce. So we have a no fault divorce, you won’t have to prove fault. The reason that they wanted a year is, in South Carolina they want to give the opportunity for reconciliation. And it often happens.  And we want people to have cooling off periods with each other and possibly go to counseling. But you can do that. If you live separate and apart, and you don’t have intercourse, you can go to counseling and that clock is ticking. 

So now we move into mediation, litigation, and arbitration. Litigation is when you go to court, you pay a filing fee of $175 in state court, and you have a judge for the life of your case. You don’t have to pay that judge, for $175 and as long as you meet the threshold of circuit court jurisdiction of 7500 dollars or more more damages, you can sue and you will have that case litigated either to conclusion in front of a jury or if you choose, you can have non jury and have a judge decide it. 

But oftentimes in contracts and draft a lot of contracts, you’ll have an arbitration clause. And the Arbitration can be either pursuant to South Carolina statute 1548 10, or the Federal Arbitration Act 9 USC Section One. Or you can designate the AAA, which is the American Arbitration Association. I’m sure you all have heard of AAA, or jams, which is another type of Arbitration Association. And the reason is, arbitration is supposedly less expensive. You don’t have that broad base discovery of tons of depositions and all these different subpoenas and expert witnesses, you hire an arbitrator. But in triple A, if you’re going to sue somebody, the amount of the filing fee you pay starts to increase depending on the amount of money you’re asking for. So in circuit court and state, South Carolina, you could ask for a million dollars, you pay $175 for your filing fee. If you’re suing for $50,000, you pay the same $175. But in arbitration, if you’re asking for a million dollars, your filing fee could be almost $15,000. And unlike in circuit court, you have to actually pay for an arbitrator and the party split that cost. Now, you know, my legal fees per hour are over $450 per hour. Now, can you imagine arbitrators are like $600 an hour. So both sides have to split the costs of an arbitrator. And arbitration is thought to be less expensive, which often is not true. Less discovery, which often is not true. And you’ll get a more just quick result, but you always hear that arbitration, they split the baby, they give something that one party they take a little from the other party they give a little to the other part or they take from one party. And so maybe the arbitrators award something down the middle to make both people unhappy. And the reason they do it is because both sides are paying for that arbitrator’s services. So arbitration is a private method of resolving disputes, as opposed to going to court, it’s binding it’s final. The only way that you could appeal that to an actual court of law is by showing that the arbitrator’s decision was arbitrary and capricious. That’s a very high standard to show. And to be able to show that you have to show that the arbitrator totally disregarded the law. And to do that you need a court reporter. So you got to pay a court reporter.  See, we don’t pay court reporters, and circuit court, you pay your $175. And the state pays that court reporter. Well, you got to have a court reporter. And if you have a five day arbitration, the transcript alone can be like $7,500-$10,000 and it is a binding decision.

So now we’ve talked about litigation, we’ve talked about arbitration, what about mediation? You’ve heard that term, mediation is a non-binding way of resolving disputes. And most jurisdictions, and most counties in our state require you to mediate your case, before you go to a trial. And mediation is when you pick a lawyer who is certified as a mediator, and you present your case to the mediator, the other side presents their case. And when I say present I mean by making an opening statement, you get in a conference room, the mediator says, “Look, I can’t make a final decision, I can bind you the only power I have is to declare an impasse. And until I declare an impasse, you by court order have to stay here.” And so what happens is you get in the conference room, you’re across the table from your adversary, I just had a mediation this morning, it didn’t work. And in the past, I spoke to the plaintiff who represented some home building customers, I represented a home builder, they made their opening statement as to why they were entitled to certain money, I responded and said, Look, you signed a contract. Here’s the terms in this contract, you’re not doing any money. I made my opening statement. And then you break apart and separate rooms. And the mediators like a diplomat shuttling back and forth between the rooms. And he traffics a demand, the plaintiffs made a demand, they came in. I rejected that demand. I countered, went back, and the mediator took it back to the other room. And we went back and forth for about an hour. And we realized we weren’t going to be able to ever reach an agreement, I gave my final offer on behalf of my client, it was rejected. And the mediator declared an impasse. So we go to court now, the answer is no, because I had an arbitration provision in my client’s builder contract. And the court already ruled that this case has to go into arbitration. So we attempted to mediate it, it’s not binding, and it goes into court. I will tell you that 95% of the cases that go to mediation, ended up settling either in mediation or after. So it’s a very, very good development that we’ve developed over the last 25 years in the law. You know, if you can imagine, every case can’t get a jury trial, if that was the case, we bogged down because, you know, Lexington County has 7,000 pending cases. But what happens is the closer that a case gets to the trial, people don’t want to roll the dice. It’s not an all or nothing world we live in. And so they go to mediation and you compromise. It’s not an ugly word. Compromise is a beautiful word. And a good mediation is when both parties leave dissatisfied. One party feels like they paid too much money to settle it and the other party believes they got too little to settle. They believe their case is worth more. But I can tell you this, two weeks after a mediation, everybody’s happy that it settled. They feel so much better that they don’t have to go in a court in front of 12 strangers that you don’t know that are pissed off that they have to give up their work time and their summer vacation to hear a petty dispute that they would never bring a lawsuit over. 

So with that, EB out.

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