Eric discusses the new case introduced in this week’s episode of True Sunlight, as well as some things on the horizon including his new book. EB added three terms to the law library this week!
TRANSCRIPT
Good afternoon Premium Members, EB here. Back in South Carolina after I was out west skiing for a week with Renee, my son and my brother and his family just was a great time. Nothing like spring skiing. We saw some World Cup skiing that was taking place where we were out in Colorado. And so it’s always fun to watch these skiers go about 80 to 90 miles an hour. And their race course is basically pure ice. They spray paint blue, which lets them know where they gotta go and outer boundaries, but it’s a purely ice course. And I was able to feel the edges on some of the skis of these racers, because we got close to some of their technical guys, and they literally are as sharp as razor blades. And when you hear them come by you on the ice and they’re up on their edges it’s a chattering sound that you never hear before you don’t hear when you ski and I grew up skiing when I started on the East Coast. And the motto is if you could ski the East Coast, you could ski anywhere because it’s all ice, you know, up in Stowe, Vermont, where my brother lives, in different places in upstate New York and in Canada. So it was a good time. Got a lot of work actually done when I was out there, so I was really pleased.
Looking forward to Cup of Justice this week with Liz and Mandy. It’s been a while since we’ve been together and we’re going to talk about the Stephen Smith investigation on where it is. I’ve had some recent conversations with Chief Kiel and I think you’re going to be pretty excited to hear really what Liz and Mandy and David and the team have done. More so probably than the SLED agents. They’re uncovering facts and information and additional phones that Stephen had that I don’t think SLED was even aware of and information regarding potential witnesses. So, you know, as usual, Mandy and Liz are knee deep in their investigation. And I gotta tell you, these two women, I wouldn’t want them crawling around me and investigating me because they’re pretty good at finding out what you ate for dinner last night. So I expect that we’re going to have some progress being made on the Stephen Smith case and Liz and Mandy made that promise that this was going to be the year of Stephen Smith and I wouldn’t bet against those two women.
We’re going to talk about the Michael Colucci and Sara Lynn Colucci case that is coming up for trial in May, a really really interesting South Carolina case involving a husband and wife who owns a jewelry company. He was tried for murder. There are some serious evidentiary facts about broken glasses, bruising on the part of the wife, some struggle. Andy Savage was the trial lawyer for Mr. Colucci and they got a hung jury in that case and it is being retried in May and we’re going to discuss that.
I’m really excited about the spring. My book which is going to be called Anything But Bland is in its final stages. My merchandise store at theEricBland.com has some pretty neat merchandise that we’ve been focusing on. So it’s really an exciting time. I’m also going to be doing some extra things on YouTube.
As to Cup of Justice, we’re very fortunate, I was able to get commitments from Vinnie Politan. And Julie Grant from Court TV. So in the coming months, we’re going to be interviewing them. So it’s really exciting.
EB’s Law Library
We’re gonna go through some legal terms today, we’re going to head to the Law Library, and we’re going to have an extra bonus one that we’re going to do. The first one I want to talk about is you always hear this term fraud. And everybody says, oh I was defrauded, or that person committed fraud when they sold me the house. And there is both criminal fraud and there’s civil fraud; I want to talk about civil fraud.
Civil fraud is something that you have to prove all the elements of fraud to be able to recover. Now, the burden of proof we’ve talked about that before in a criminal case is beyond a reasonable doubt. And so that is like 99 percent sure that somebody committed that crime, that’s beyond reasonable doubt. That preponderance of evidence which you normally find in a civil case, that burden of proof is just more likely than not. So that kind of means if you’re on a football field, you just gotta cross the 50 yard line, you don’t have to get anywhere near the end zone like you do in a criminal case beyond a reasonable doubt. But fraud, to prove fraud is in between this preponderance of evidence and the beyond a reasonable doubt. It’s called a clear and convincing or clear and cogent standard. And that if you can imagine is probably 67 percent sure. And so somebody says, well, how do you prove fraud? Well, in South Carolina, unlike most states, South Carolina has nine elements of fraud that you must prove in a civil case, and it’s known as the nine fingers of fraud.
The first is there must be a representation of fact that somebody says this car is worth $900,000, it’s a ‘62 Ferrari, it’s original, there’s nothing reproduction about it; $900,000 original Ferrari. and if that person knows that there’s not original parts on there, that there’s aftermarket parts or some parts that were made for it, that would be a representation of fact that’s not true. Which is the first element is a representation of fact, the second element is its falsity. So you have to prove that what that person said, as fact, is false.
The third thing is it’s got to be material. So it’s not like, well, if you asked me my age at my age, and I said, I’m 61. Instead, I’m really 62 and I forgot, you know that I’m 62. You know, whether 61 to 62 is material? I don’t think it is, but I think it would be material. If somebody said that engine’s the original engine and that Ferrari and it turns out that it was an aftermarket engine, that would be material.
The fourth thing is that the person who makes the statement knows that it’s false, yet they’re conveying it is true. And obviously that person who has the car was told that it had an aftermarket engine yet it’s representing that engine as being new. Or they’re ignorant as to what the truth is, that they never asked. You know, when you buy a car like that you’re spending $900,000 Someone should ask, is this the original engine?
The fifth thing is that the representative who’s making this false statement intends that it should be acted upon by the person who’s listening to it. So, if I’m buying this car for $900,000 and it’s really worth, like $1.4 on the market, and somebody tells me, it’s all original parts, I feel like, wow I’m gonna have like $500,000 of equity in this car as soon as I buy it. So they’re giving me this statement, this false statement, in order that I act upon it. The second thing is I have no knowledge of the falsity of the statement, meaning the recipient. There’s no way for me to look at that engine and know that it’s not original. The question would be, do I have to go hire somebody to look at the engine? Should I do that? Maybe. And that comes into the second thing, which is the injured party’s reliance on the truth; that I relied on the representation that the engine was original in buying the car. I have to prove that the burden shifted to me, the recipient of that false statement, then the next number eight is that I actually have a right to rely on it. You know, if you tell me that, you know, some crazy cockamamie statement that makes no sense I, you know, I can’t be reasonable in relying on that. So I have to prove that it’s reasonable for me to have relied upon that false statement. And then finally, the ninth element is that I would have to be able to show that I was injured by that statement, that the statement proximately caused me to be injured, and then I would have proved the nine fingers of fraud. It’s very, very difficult in South Carolina to prove fraud, those nine elements. You know, I have had fraud verdicts before but they’re very rare because you end up failing on one or two of those elements. And if you fail on one, you fail on all.
The next thing is the word referee. It’s really special referee, but we’ll use the term referee. In basketball, you have referees, they’re the ones that wear the black and white zebra shirts and the coach’s pants and those black shoes and they run up and down, they’re referees. There’s also referees in football. But as to the law, a special referee is somebody who is appointed by a judge to hear a matter. And that person doesn’t have to be a judge. That person usually, most often, is a lawyer who is familiar with the issues that are before the court. Meaning that, let’s say it’s an estate case, the judge may appoint a special referee who practices in the area of trusts and estates, that they write trusts or they write wills or they litigate trust litigation or they litigate estate litigation. It could be the same thing for patent, if there’s a patent or an intellectual property issue, patent, a copyright, a trade secret or a trademark. Somebody who is a patent lawyer, a judge may appoint that person to hear an aspect of the case.
Bringing this home to what we know, the special referee was appointed by Judge Daniel Hall in the Murdaugh case. And that special referee is Walt Tolleson out of Greenville and he’s been charged with determining how to distribute the money that the receivers recovered from Alex Murdaugh’s assets. And that’s about that $1.7 million, and you know, that, you know, I’m dancing on hot coals right now, because Walt Tolleson did not give any money to the Satterfield and Plylers, our clients, and we have made a motion to reconsider. I’ve voiced my opinion about that, I’ll leave it at that. That motion is pending. So a special referee, or referee, is somebody who’s appointed by a judge to hear a particular aspect of a case.
The bonus legal term today is called a de bene esse deposition. Latin. Now, we all know what a deposition is, or we should if you have had civil litigation. In civil litigation, a deposition is where a witness or a party appears usually in a lawyer’s office and there’s a court reporter called a stenographer who takes everything down and one side is questioning the witness. And that witness is sworn in, takes their oath, and answers those questions. And usually that person has a lawyer representing them. But the lawyer has very little that it can interfere with in that deposition, it’s usually a conversation between the person asking the questions, and the person who’s being deposed; they’re called the deponent. And so that’s questioning back and forth. They ask questions about your background, your work, your family, and then they get into the facts of the case. And when it’s done, the court reporter puts it in a transcript and you may have seen those transcripts and they’re probably 300 pages long. And oftentimes, those depositions are used at trial to impeach or contradict what somebody is testifying to at trial. And that means, if the witness gets up on the stand and says, look, the light was green, and I was only going 30 miles an hour. And then the lawyer who was questioning that witness would say, now wait a minute, I took your deposition a year ago and in that deposition, you remember, you swore to tell the truth, right? And I gave you an opportunity to answer questions, you said, you were going 50 miles an hour, and the light was yellow. So what is true? Is it green today and you were only going 30 because that’s more favorable to your case, or you’re going 60 and the light was yellow? Well, a de bene esse deposition is a deposition but it’s used in advance of trial. Let’s say the civil trial is in May, the person is not going to be able to attend the trial, that they’re going to be in Europe for vacation. Well, the parties will go to the court and say can we take a de bene esse deposition. And that is not the discovery deposition that we just discussed that takes place in a lawyer’s office. This is more of a trial deposition and that is the parties will put this witness on and both sides will question the witness either in direct examination and then cross examination and then a rebuttal. And that deposition will be used in its entirety at the trial. It won’t be just pieces, they will read the entire deposition. And so that is called basically a de bene esse deposition is nothing more than just a trial deposition. It’s the person being deposed and giving testimony in lieu of that person appearing at the trial of the case.
So with that said, EB out.
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