It was my privilege recently to give an ethics presentation to the Upstate Chapter of the South Carolina Women Lawyers Association.  The mission of SCWLA is “to enhance the status, influence and effectiveness of women lawyers in the State of South Carolina.  SCWLA will, through advocacy, action and association, take positive steps to ensure that women lawyers achieve their fair share of opportunities and benefits available to those in the legal profession.”  The SCWLA has over 700 members and emphasizes the opportunity to meet and help other women by sponsoring CLE seminars, monthly regional lunches, and mentoring programs. It’s a great group.

Later, after making my presentation, I noticed an old book on myshelf, The Official Lawyer’s Handbook, by D. Robert White, Esq., published in 1983 by Wallaby Books.  It was given to me by a friend while I was in law school shortly before I graduated in 1987.  Some of the chapter titles provide a clue to the author’s attitude and approach to the legal profession.  They include “Summer Clerkships: Summer Camp for the Incurably Overachieving,” “Once You’re a Partner: The Crock at the End of the Rainbow,” “Legal Ethics – And Other Great Oxymorons.” One chapter begins with a cartoon in which an older male lawyer shakes hands with a young female lawyer.  The caption: “So you went to law school and now you want to practice law . . . I think that’s cute.”

Um, yikes.

While reviewing the remaining section titles, I noticed that there was a chapter on “Women and The Law (You Don’t Have to Wear Briefs to Write Them).”  Since I had just left a meeting of the SCWLA, I thought it was a good idea to read that chapter.  I suspect that the author’s attitude was considered condescending even then. It is probably best to remember that this book was published in 1983, at a time when women made up only about a third of the total law school population, but that’s no excuse. However, despite his cavalier attitude, the author anticipated that views of women in the profession would change over time.  As he ultimately noted: “When women become rainmakers, their success is assured.  At that point, the only question is whether women will start talking dirty and popping each other with rolled-up towels.”

The chapter concludes with this commentary:

“How is a Woman to Cope?”

In any law firm with partners old enough to have gray hair (or no hair), a woman will encounter “traditional” attitudes.  There are three alternative strategies she can adopt in response.

1. The Crusader.  This bold approach involves pointing out every indiscretion and protesting every inequity, no matter how minor the offense or how senior the offending partner.  “You get out of the elevator first, hair-bag!”  It’s a noble battle, but exhausting and potentially fatal to one’s career.  Make sure you know what you’re getting into.

2. The Mata Hari.  A few women, motivated by contempt or frustration, attempt to exploit those feminine resources that male partners appear most willing to recognize and reward.  You can spot a hard-core Mata Hari by her black mesh stockings with seams.

3. The Survivor.  This pragmatic approach consists of equal parts diplomacy, competence, thick skin, and a strong sense of humor.  “Sure, I’ll get you some coffee, Mr. Turk – if you’ll pick up some pantyhose for me when you go out to lunch.”  It includes traces of Katharine Hepburn-like insouciance and Margaret Mead-like tolerance of Neanderthals.

This approach may involve a few concessions to circumstance.  But these concessions are purely cosmetic.  In legal jargon, they are procedural rather than substantive.  You should not feel your core values threatened in situations that require you to endure a conversation about sports, or to resist running around the room with an air freshener when someone lights up a cigar.

Reading this chapter reminds me that we have come a long way in this area, and many others.

The day after we run a post about one being impeached by one’s own social media, I, as a guest author here,  had to step in and offer up my own thoughts on that very subject. I use Twitter and LinkedIn for business purposes. If you ever want to know how I use them, I would be pleased to share that with you.  I can share some success stories, and perhaps some helpful hints, if you are so inclined. I do believe some form of social media should be in every lawyer’s marketing toolbox. But it is just that: one tool among many.

I am also on Facebook. I have some 400+ “friends.” I rarely turn down a friend request. I enjoy it. I have fun posting things and engaging in online conversations about the issues of the day. I typically do not post work related material – I only do so when the firm or one of our lawyers receives an award or honor.

But there are dangers to this type of interaction, and I was burned recently by a Facebook “friend.”

I recently mediated a case with a familiar Plaintiff’s attorney. The case had been around for a year or so. A month before the mediation, the Plaintiff’s lawyer sent me a request to be his friend on Facebook. As I  am often inclined to do ,  I accepted it. I have many lawyer Facebook friends – even some plaintiff lawyers.   I learned that the Plaintiff’s lawyer in my case had posted several items about our case – not naming the lawyers or clients – but just random things. The morning of the mediation, he posted that he was mediating a case in which the “powerful corporate defendant” had “mocked and disrespected” his “disabled”  client.

Sigh.

During the mediation, the Plaintiff’s lawyer opened by saying that he did not think we were taking his client’s case “seriously.” In apparent support for that position, he actually projected onto the screen one of my very recent Facebook posts about my plans to celebrate my fiftieth birthday. (Yes, I recently turned 50.) The Plaintiff’s lawyer said, “Maybe he was ready for this mediation last Wednesday before he started celebrating his weekend birthday, but . . . .” His sentence trailed off as if to suggest his doubt. He also commented that I had not been to any of the depositions in the case, as if sending my  experienced senior associate to the depositions was in poor from.   The associate was handling it under my close supervision.  (By the way, we had sent the mediator a statement ahead of time and had prepared a booklet of material to share with the other side and the mediator to be used in the mediation.). The mediation ended unsuccessfully.

So there you have it – my personal Facebook post used against me in my own mediation. I have now defriended this Plaintiff’s lawyer.

Perhaps I will defriend other lawyers in the future – I don’t yet know. But it’s now a dilemma. Some of you will take great pleasure in pointing out how this is why one shouldn’t have a Facebook account. I don’t see it that way, of course, but it is certainly a reminder of the perils of social media.

We continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field.  For this installment, we turn to John Hart, author of four bestselling novels, The King of Lies, Down River, The Last Child, and Iron House, which was released in late 2011.  Hart describes himself as a “recovering attorney” who now devotes his efforts full-time to writing.  We appreciate his taking the time for this interview.

1. One of the things that I thought was interesting about your most recent book, Iron House, was that the central character, Michael, had been an enforcer for a mob boss, yet he had good qualities, too.  How did you strike a balance between those traits?

Well, the challenge that I had in writing this book right out of the gate was the question of how to make a stone cold killer redeemable in the eyes of the reader.  Because what I wanted to do was explore the type of man that a traumatized child might become – the type of child who goes through hell and is never given a soft landing by the system, by his family, by society and he’s on his own from the earliest days.  I wanted to explore the type of man that child would become and I had this idea of him growing into a life of serious crime and I knew right out of the gate that in order to make that character meaningful to the reader in any sort of positive way, he had to have some decent qualities.  And it was a challenge.  How to reconcile the kind of good qualities the readers want to see in a hero with the kind of qualities that would allow him to be a stone cold killer for 30 years or 20 years or whatever it was.  And that’s all about what made him who he was.  It was about the childhood of events that shaped him and how he clung to good parts of who he perceived himself to be throughout that.

2. What kind of response have you gotten from your readers for Iron House in comparison to your previous books?

Well, it’s interesting.  The first three books were all about normal people trying to find the strength to deal with difficult but abnormal circumstances.  This is the first character I’ve ever written that had a skill set.  I mean, this is a dangerous man who knew exactly who he was and what he was capable of doing.  And so it’s very different right out of the gate than the books I had written before.  The reaction has actually been quite positive because he’s a much more recognizable thriller character.  Most thrillers are about people that know how to get the job done in one capacity or another and people really responded well to him.  Better than I thought.  I was afraid that I had contrived to shoot myself in the foot by writing about a person capable of such cruelties but I seem to have found the right balance based on how readers have responded.

3. I have read all four of your books and it seemed to me the storyline in Iron House was a little darker.  You had the orphans, the mob, the crime, the violence.  I was interested in how you would describe it as being different from your previous books.

It was a conscious decision in that I felt that the first three books, by the traditional definition, should not necessarily work as thrillers.  “Work,” in the first novel, a sort of broken down lawyer, is atypical for a thriller.  Certainly, a 13-year-old child, in the third novel, Last Child, is atypical.  So I wanted to try to write something that was more immediately recognizable but still give the books the qualities that made the first three work which, in my opinion, is a certain amount of character depth and that was a lot of fun trying to write this guy in a way that people could relate to and still make him a total badass.  I’ve never written a bad-ass before.

4. I read somewhere that you almost walked away from writing Iron House.  What did you mean by that?

It’s exactly what we’ve been talking about.  I knew from page 1 that in order for the book to work, the character had to be likeable.  And I knew that that was a hard order to fill and so I felt like, at 140 pages in, just convinced that it was impossible to make a meaningful, personal relationship between the reader and a character capable of such cold violence.  And so I just became convinced that it was wasted effort and I need to move on to something else and I’m obviously glad that I didn’t move on.  But it was tough to find a compelling voice that felt real when dealing with a professional killer because I obviously know nothing about what it takes to be a professional killer.  It’s truly imagination.  And I like for readers to feel that my characters are fairly real and so I just lost faith that this guy would feel like a real character.  I did something I normally would never do.  I rarely show anything to my publisher until it’s finished.  They like to have a fresh read and so I – at page 140 – I asked my editor and my publisher to read it and tell me if I should walk away or continue.  I’ll never forget the conversation I had with my publisher.  He just thought it was fabulous and he said I understand your concerns but you have the talent to pull this off in a major way, is what he said.  And that really kept me involved.

5. Did you do any research before writing Iron House?

No, not really.  There was certainly temptation to do research on the mob and stuff like that, but most of my fiction, I write it so that it doesn’t require a tremendous amount of research.  The example I usually like to use, I rarely get into the specifics of weapons, for instance.  If I write about a gun, it’s usually small and shiny or large and rustic with a shine on the hammer or brutish and square, something that’s not specific.  I write from the internal landscape of the characters.  In Iron House, for instance, how does Michael feel about what he does?  How does he see his place in the world becomes much more important to me than exactly how does he do his job or where does he go to get his weapons or his information.  So I just write in the way that didn’t require a lot of that.  Of course, I’m always prepared to look for it if I felt I needed it.  But its one of the things – my books are fairly uniform and it’s really all about the character.  It’s about what they care about, what they see and what drives them and how they relate to the world around them.  And that doesn’t require as much specific information as you might think.

6. Was there anything about the writing of Iron House that drew upon your prior career as a lawyer?

Not Iron House so much.  Certainly King of Lies, to a degree, smaller than that, Down River.  Last Child and Iron House really did not have any specific draw from my legal training.  They all drew from my legal experience.  I was in the criminal system for a while and what I learned in that time is more about what motivates people to do bad things and it’s usually not as grand as you might imagine.  I like to think there are no criminal masterminds.  It’s usually by the end of the book we find that things are done for reasons that are fairly predictable.  Even in something like Iron House, it’s a much grander scale than my previous books, and I think that holds true.

7. Your first novel was The King of Lies, and the central character, Work Pickens, was a lawyer, but he did not seem to enjoy the practice of law very much.

No.  I wrote that book literally on the heels of my own law practice.  I’d been a few years in the criminal courts and quit to write The King of Lies.  I never felt great about my job in the criminal system.  I’m much more geared to the mindset of a prosecutor than a defense attorney.  Defense work was the job that I found, so I did it and I enjoyed it to a point but I never really felt great about it and obviously the fact that I was willing to walk away from it in order to pursue something as risky as writing a novel is fairly indicative of the depth of my feelings and those feelings very much spilled over into “Work.”

8. My favorite John Hart book is probably The Last Child, in which the main character was a kid named “Johnny.”

Well, Johnny’s my favorite character, too, and The Last Child is probably my favorite book.  Johnny was a challenge in that it’s very risky to write an adult thriller based around a child.  I wanted to do that.  The inspiration for Johnny actually came from Down River.  If you remember in that novel, we see in the first few pages Adam Chase returning back to Rowan County after a long exile in New York and he stops at the river and while he’s there he meets this young boy who’s down to check some fishing lines that he and his father had put out the night before.  And I love this kid.  He was just sort of wholesome, innocent, unafraid child and it got me thinking about what might happen if you took away all that bubble of innocence that protected all that he seemed to move through and took all that away, what kind of child might he become.  And so, that’s what got me thinking about Johnny.  I needed to ask myself a couple of questions.  If I did take away that life, that wonderful, perfect, innocent childhood, what would that do to him?  Where would he find the strength to deal with those new circumstances and down what dangerous road might that strength carry him?  You may remember Johnny’s best friend is Jack?  Really, two sides of the same coin.  Johnny, I think, is the kid we’d all sort of would like to be or wish we had been.  Sort of clear eyed and selfless and brave.  And Jack is the exact opposite.  He smoked cigarettes, steals his daddy’s liquor, cut school.  Johnny and Jack are both nicknames for John.  That was not coincidental.  I kind of feel like those boys were the two sides of me in a lot of ways and so one of the reasons that I love those characters so much in that book is that it all feels very personal to me in ways that others don’t.

9. How long does it take to write a novel such as Iron House?  Did it take longer than the others?

The general ballpark is anywhere from 10 months to a year, seems to be about average.  Iron House took more like 18.  That’s because it took me a very long time to find a compelling voice for this killer.  I started that novel nine different times trying to find the right voice for him.  That took a lot of my time.  Once I found the first 50 or 60 pages, it felt right.  The rest of it took about eight months.

10. You have had four best-selling novels.  Do you have anything in the works now?

Oh, yeah.  Working on number five.  It’s like anything else, you have to produce to get paid.  This is my career now.  It’s all I do and so I don’t like to sit idle for too long.  It’s great because you can take time off between books and have a little more of a life than I ever did when I was working as a lawyer in terms of free time.  But you can’t sit idle for too long.  You have to produce.

11. You are married and have a couple of young children.  How do you balance the family life with your writing time?

It’s not that hard.  I have an office downtown and I generally get down there about six hours a day, maybe seven.  Then the rest of the time I’m available to be with the kids and it’s very easy to take time off when I want to.  The only time it gets to be problematic is when I tour, which happens for longer and longer periods.  I do a lot of international travel now.  That gets to be a little bit of a challenge for the family if I’m overseas for three or four weeks which happens seems like once or twice a year.

12. One of your great passions is the protection of your native North Carolina’s open spaces.  What have you done to protect those open spaces?

I work with local land trust movements.  I’m involved specifically with one in central North Carolina.  It’s about educating the public about the benefits of conservation easements and it’s also about raising money to acquire property outright which is then often given to the Parks Service of the state to be preserved forever.  So it’s kind of a grass roots effort to get communities involved in preserving what they have with their open spaces.

13. Bonus Question: Other than writing, what has been your favorite job?

Working at a London pub right out of college.

BIOGRAPHY: John Hart was born in Durham, North Carolina, and later moved to Rowan County, the setting for both The King of Lies and Down River.  He is a graduate of Davidson College and later earned graduate degrees in accounting and law.  He has worked as a criminal defense attorney, banker, stockbroker, and apprentice helicopter mechanic.  He is a husband and father of two, and spends his time in North Carolina and Virginia.  Hart is the only author to win the best novel Edgar Award for consecutive novels, and he has also won the Barry Award and England’s Steel Dagger Award for best thriller of the year.

The mail was scattered across the dining room table.  One envelope, bearing the seal of our local Clerk of Court, caught my eye.  A summons for jury duty!  There must be some mistake.  Surely those over 50 years of age are exempt?  The week for which I was called, I was scheduled to be out of town, so our Clerk of Court transferred me to another term.

On Tuesday, January 3, 2012, I reported to the Jury Assembly Room at the Greenville (South Carolina) County Courthouse, home of both the Court of Common Pleas (civil) and General Sessions (criminal).  I thought my chances of actually serving on a jury were remote, given my status as a trial lawyer.  But you never know; after all, I did serve on a jury back in 1990, not long after I started practicing law.  Every lawyer ought to have such an opportunity.

Shortly after I arrived, around 9:00 a.m., I learned that they were not holding criminal court that week and that there were only two civil cases on the trial roster.  This had the potential to be a very short week!

We heard welcoming remarks from our Clerk of Court, Paul Wickensimer, and members of his staff.  Then, we watched a short film, which explained juror responsibilities and provided an overview of the South Carolina jury system.  Following a five-minute “stretch break,” the presiding circuit court judge entered the room and apologized profusely for the short delay.  He then explained that the only two cases on the trial roster had been resolved and that we were free to go.  Whew!  Released from captivity.  What a relief.

Then, as I left the courthouse with my fellow jurors, I felt guilty for this sense of relief.  Would it have killed me to have served on a jury for a day or two?  After all, as Sir John Fortescue, Chief Justice of the King’s Bench, stated in 1468: “Trial by jury is the most rational and effective method for discovering the truth.”  Our judicial system was founded on the right to a jury trial for most civil and criminal cases.  The U.S. Constitution, most state constitutions, and the Sixth and Seventh Amendments to the Bill of Rights address the right to a trial by jury.  Having experienced my brief tenure in the Jury Assembly Room, I was reminded of why I became a lawyer in the first place.  I have always enjoyed the opportunity to work with clients to solve their problems – whether through a jury trial or settlement.

Most agree that England’s King Henry II was the “father” of our modern jury system.  Through a series of enactments, Henry II extended the use of the English jury to many areas of civil and criminal litigation.  It was Henry II’s son, John, who sealed the Magna Carta in 1215 at Runnymede.  The American Bar Association erected a marble monument three miles east of Windsor Castle to commemorate this event, which established as a matter of constitutional right representative democracy and trial by jury.

William Blackstone was a leading scholar and author of a commentary on English law.  Blackstone was an advocate of the right of trial by jury, commenting:

Our liberties cannot but subsist, so long as the right of trial by jury remains sacred and inviolate, not only from all open attacks, but also from all secret machinations, which may sap and undermine it.

One of the leading causes of the American Revolution was the denial of a trial by jury.  John Adams made this statement in 1774 about trial by jury:

Representative government and trial by jury are the heart and lungs of liberty.  Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.

Alexander Hamilton was one of the principal advocates of the adoption of the Constitution and supported the concept of civil jury trials:

The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon trial by jury; or if there is any difference between them, it consists in this; the former regarded as a valuable safeguard to liberty; the latter represented as the very palladium of free government.

Over the centuries, there have been many landmarks in the development of an independent, impartial jury.  This led Winston Churchill to write in 1956:

The jury system has come to stand for all we mean by English justice, because so long as a case has to be scrutinized by twelve honest jurors, defendant and plaintiff alike have a safeguard from arbitrary perversion of the law.

In addition to the brief research I conducted to collect these quotes on the importance of trial by jury, I also searched my inbox for an email one of my partners, Howard Boyd, authored several years ago, following a particularly satisfying jury verdict:

We do not need to be afraid to try cases to juries.  We need to properly evaluate the case for settlement purposes, but if a reasonable settlement cannot be obtained, we need to convince the client to try the case.  At mediation, if the plaintiff doesn’t get into an acceptable range for settlement, simply advise the mediator and opposing counsel that we appreciate their attendance at the mediation but we will be delighted to see them at the courthouse for a jury trial.  Juries almost always do the right thing.  While there certainly have been bad jury verdicts, and occasionally a jury will do something crazy and deliver a runaway verdict, often those cases can be corrected on appeal or settled during the appeal for a much more reasonable amount, and these results are not typical.

As many of you know, I have decried the decline of jury trials over the last few years, and hope we can once again restore the jury trial to our arsenal of defense of civil litigation.  There is simply nothing more grand than a jury trial, and no feeling more thrilling than a defense verdict after a hard-fought trial.  While trials are stressful and extremely hard work, the thrill of victory makes it all well worthwhile.  Even if we don’t win, let’s always remember the immortal words of Teddy Roosevelt:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better.  The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs, who comes up short again and again, because there is no effort without error and shortcomings, but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions, who spends himself in a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Indeed.

[Editor’s Note: Recently, the Consumer Products Safety Commission warned that holiday injuries are on the rise – from falls from ladders while stringing lights and cuts from broken glass Christmas ornaments.  Given the potential for litigation arising from such holiday mishaps, our own Stuart Mauney, acting as a special correspondent to Abnormal Use, reports on a lawsuit recently filed by the Estate of Grandma against Santa Claus for grievous injuries suffered when she was allegedly run over by a reindeer.  If it isn’t fully true, it certainly ought to be, right?]

Grandma got run over by a reindeer.Walkin’ home from our house Christmas Eve.You can say there’s no such thing as Santa, but as for me and Grandpa, we believe.

In the complaint (which was of course filed in state court), the personal representative of the estate alleges that Grandma “had hoof prints on her forehead, and incriminatin’ Claus marks on her back.”  Word around the campfire is that the estate is also considering a negligence claim against the North Pole DMV, arguing “it never should issue a license to a man who drives a sleigh and plays with elves.” Get estate planning lawyers from Marc Brown, P.A. to help with such cases.

Santa Claus filed an answer to the complaint, asserting the affirmative defense of contributory negligence and noting that Grandma was, for lack of a better phrase, walking under the influence (“WUI”).  In the pleading, Claus claimed “she’d been drinking too much eggnog and we’d begged her not to go.”  Claus further alleges “she’d forgot her medication, and she staggered out the door into the snow.”  Claus is also expected to argue that Grandma failed to keep a proper lookout and was properly warned by Rudolph’s “very shiny nose.”

The Estate has made a claim for Grandma’s conscious pain and suffering, presumably for her slow and painful death before they “found her Christmas mornin’, at the scene of the attack.”  The Estate also has made a claim on behalf of Grandpa and various beneficiaries for wrongful death, alleging mental shock and suffering, wounded feelings, grief and sorrow, and loss of companionship.  Claus is expected to question the credibility of these claims during the discovery process, though in his answer, he offered only a general denial.

Despite our attempts at objective reporting of this legal news, we must confess that we’re also proud of Grandpa:

Now we’re also proud of Grandpa. He’s been takin’ this so well. See him in there watchin’ football. Drinkin’ beer and playing cards with Cousin Belle.

Further, Grandpa and the rest of the family do not appear to be suffering from “wounded feelings,” to the extent they debated “should we open up her gifts or send them back?”

We will keep you advised of any further developments in this case.  In the meantime, be careful out there!

[Editor’s Note: “Grandma Got Run Over By a Reindeer” was written by Randy Brooks and originally performed by the husband and wife team of Elmo Shropshire and Patsy Trigg way back in the halcyon days of 1979.]

Stuart Mauney can be followed on Twitter at @stuartmauney.