(LexisNexis)
Here is an example of the point I was making in yesterday's blog article, FOCUS ON THE ONE ISSUE THAT WILL DECIDE THE THING. In today's article, I fought to stay on one topic and one topic only, namely, the story of how Mary Jean Bradham's death resulted in cases decided by judges and argued by a lawyer from Florida Trial Courts to Florida Appellate Courts, over to Federal Trial Courts and then to Federal Appellate Courts (whew!) and, finally, to the Supreme Court of Florida. It was hard, but I think I succeeded in keeping focus on the one issue that will decide the article.
This may be a longer blog post than many readers are accustomed to. There is no getting around the length to illustrate the point, I am afraid. Readers are advised to use their own discretion in visiting this one.
THE ROUGH DRAFT OF HISTORY
for Claims and Issues Blog, Wednesday, January 13, 2021
by
Dennis Wall
©2021 Dennis J. Wall. All rights reserved.
When I try to write fiction, I often end up writing nonfiction. Not "creative" nonfiction, but nonfiction without the whipped cream. No accumulation of a little substance with a lot of air whipped up for taste. "Just the facts, ma'am," as someone fictional often said.
I would like to begin with the story of Mary Jean Bradham and malicious prosecution. The story begins with this fact:
Mary Jean Bradham died.
She told the State Attorney that when her husband got out of jail on his latest arrest charge that he was going to kill her when he was set free. The State Attorney apparently did little or next to nothing. There probably was not much the State Attorney could do.
But the State Attorney could have asked for bail. That is what the local police chief did. When Mary Jean Bradham told the local police chief that her husband would kill her if he were not kept locked up, the chief told the judge at the husband's bail hearing that the judge should set bail very high.
The State Attorney was speechless, saying nothing. The judge shrugged and wrote, "ROR" on the husband's charge sheet. "ROR" meant and means that the husband was released on his own recognizance. No bail whatsoever.
Released from jail, the husband made good his threat to kill Mary Jean Bradham.
Her father, somewhere between his late 60's and his early 80's, talked to a lawyer. The father couldn't pay for a lawyer, but he could agree to a contingency fee so that if there was any recovery, the lawyer would get paid something for his work. The lawyer sued the State Attorney for negligence in the wrongful death of Mary Jean Bradham.
The lawyer would never get paid, as it turned out. The case against the State Attorney was dismissed.
The next step was taken by the State Attorney. He sued the lawyer, the lawyer's law firm, and Mary Jean Bradham's elderly father because they sued him. The State Attorney sued them for malicious prosecution.
The law firm turned to their errors and omissions carrier -- in other words, they turned to their malpractice insurance company -- for a defense to the State Attorney's malicious prosecution lawsuit. The carrier accepted the defense, and not just for the law firm but also for the lawyer. Their carrier also offered a courtesy defense to Mary Jean Bradham's father. A courtesy defense meant that they didn't have to give him one, but that he wouldn't have to pay for it either.
The defense was loaded with political implications, some of which I knew from the beginning. As a very young associate in the defense firm that defended the law firm sued by the State Attorney, I knew from the beginning of course that the State Attorney was a politician. I knew, too, that the State Attorney had a tremendous amount of pull in that county. That meant that anyone opposing the State Attorney's lawsuit had better get it right, or not at all.
I can also see today from the better vantage point of a road that has climbed a little higher in the distance between now and then. I can see now that when the State Attorney sued for malicious prosecution, that Mary Jean Bradham's lawyer and his law firm, and Mary Jean Bradham's father, all needed a defense to the State Attorney's lawsuit and they were each and all defended by some of the heavy hitters in the bar.
And then there was me. Some of the heavy hitters had built up decades of reputations as trial lawyers who could argue facts to judges and juries resulting in defense verdicts too numerous to count, even then. Others among the heavy hitters were used to suing people, not defending them, resulting in plaintiff's verdicts in favor of injured people suing for their injuries, also in cases too numerous to count, even then.
Some were recognized throughout the State as lawyers who could argue the law to judges in all the Courts in the land. One of them had even argued, successfully, for a major change in the law so that injured people could sue their tormentors even if they, the victims, had also caused a relatively small amount of their hurt.
All of them left the defense of the State Attorney's case to me.
My research convinced me that I could make a strong argument that the lawyer and the father had an absolute right to sue the State Attorney.
There was case law that good lawyers, the heavy hitters on the defense side included, believed would allow the State Attorney to bring his lawsuit. If my argument succeeded, there would not be a lawsuit any longer. So the heavy hitters stepped back, as it were, and let me have at it for the time being.
Or, in retrospect, so they must have thought.
The defense took longer to play out than they probably expected, and much credit has to go to the insurance company that funded the defense through all that followed.
First, I filed a motion to dismiss in the State Trial Court where the State Attorney had filed his malicious prosecution lawsuit. The State Attorney was represented by one of the premier lawyers of the Democratic Party, a figure who was nationally known and respected. The trial judge agreed with his argument, not mine. Score in numbers of Judges: 1 to 0, against me.
Next, I asked a Florida State Appellate Court to review the order denying the motion to dismiss. They refused to review the case. Score at the end of that case: 4 to 0, against me.
Then, I filed suit in Federal Court asking a Federal Trial Judge to stop the State Attorney's malicious prosecution suit. The Federal judge also ruled against me. Score then: 5 to 0 against me.
Undaunted, I filed an appeal of the Federal Trial Judge's ruling dismissing my Federal Court case. The Federal Appellate Court, all three judges, unanimously wrote an opinion adopting the position I took on behalf of my clients. However, they withheld adjudication, you might say, if this had been a criminal case. They formally withheld their ruling while they asked the Supreme Court of Florida whether I had a point. At that time, 5 judges had ruled against my position, and 3 ruled in favor of it.
At that point, my position was in the lap of the Supreme Court of Florida with one proviso. I had never been in this position before, whether looking at the substance or at the procedure of the thing. Procedurally, I had an opinion from the Federal Appellate Court literally in my jacket pocket. The opinion was squarely in my client's favor despite anything that the Supreme Court of Florida might do. Come what may, my clients would prevail and not be sued by the State Attorney. As one of the Florida Supreme Court Justices asked me, "Mr. Wall, you have come to this Court through a rather circuitous route, have you not?"
Before I answered, I touched the outside of my jacket pocket that held the Federal Appellate Court's opinion.
When the Florida Supreme Court mailed out its opinion, I of course read it eagerly. The Supreme Court voted unanimously in favor of my clients. The final lineup of judges was now 10 judges in my favor, and 5 against. That was double the number of judges ruling against me, as ruled for me, of course. But as if that were not enough of a shock, I noticed something familiar about the Supreme Court's opinion.
The Supreme Court of Florida adopted my brief word for word. My words were now the law of Florida. And so they remain the law of Florida to this day.
That is where I would like to begin this story.
To be continued ....
-30- The End.
©2020 Dennis J. Wall. All rights reserved.