Every member has a story. This section began in the early days of The Resource and we are looking for writers to help us tell our members stories. Please contact Lynette Pitt to volunteer to help write a member profile.
By Ken Kyre
As I approach my 70th year on this earth, I count myself the recipient of good fortune to have been a defense attorney for over four decades. I did not begin my journey on the law path with the expectation of being on the right side of the v. Way back in the 1970s, my friends would have sworn I would end up laboring in the fields of plaintiff’s litigation. (After all, I voted for McGovern for President; me and 127 other people.) However, life has a way of altering paths, and I ended up working for a full-service law firm which had an insurance-defense practice (where my billable rate was the princely amount of $25 an hour – but there was no third-party auditing). Because I wanted to be a trial lawyer, I was able to become steeped in insurance defense. Some older attorneys reminisce that the 1970s was a golden age of an insurance-defense practice. I don’t know how much gold there was (I didn’t see any), but it was a grand time. The business side of a law firm was scarcely a concern, and I and my fellow litigators focused on the pure practice of law, trying more cases in six months than young attorneys nowadays do in five years.
Back in my early days as an attorney, I did not view myself as one who was protecting “the Man,” callously preventing injured plaintiffs from receiving just compensation. Rather, I felt that I was helping and protecting insureds who were real-life people who were confused and concerned about being sued, and defending companies who usually had never been sued before and likely would not be sued again, which were filled with good and earnest employees trying to do their jobs. I have found this to be true throughout my career.
I see being a defense attorney as adding balance to what can be an unbalanced arena, since often we enter it having to confront a sympathetic plaintiff. We have the responsibility, and the privilege, to tell the whole story (especially in today’s world of so-called “reptile” strategies). I have found I have not needed to leave my humanity to defend defendants, and that humanity helps me understand the plaintiff’s perspective and to appreciate what my defense clients are experiencing.
Although throughout my career I have often been involved in “big cases,” I have also defended cases which had only a small amount at risk, and the feeling of satisfaction in helping clients in both kinds of cases, and all in between, reminds me that I play a worthy and necessary part in the litigation world.
Being a defense attorney has also provided me the opportunity for my mind to usually be challenged and stimulated. And in representing defendants and litigating lawsuits, I have found myself being a detective, a private investigator, a psychologist, a sociologist, a therapist, an explorer, an academic, an actor (with the courtroom the stage), and much more. This has not been a boring career.
A happy benefit of being a defense attorney in North Carolina has been working with such a huge group of outstanding defense attorneys, who not only are great at their work as trial lawyers, but who are exceptional human beings.
The way defense attorneys practice their craft has changed over the years; no longer do I wander through libraries with actual bound volumes, flipping through pages of a case reporter, feeling the paper between my fingers. (My fingers now spend their day walking over a keyboard.) And I don’t miss looking for a phone booth driving down the road to a deposition or courtroom (thank you, cell phone). The technological advances have been staggering, and it has allowed defense counsel to be more informed, undertake better legal research, to be more accessible to fellow attorneys and to clients, and to be more productive. But some basic aspects of being a defense attorney have not changed: Dedication to the client, seeking to help that client, a desire to be more than just competent, being civil to and respectful of all attorneys, litigants, and others, being vigilant, being creative, and being ethical and honest.
I have been so fortunate to have been a defense attorney for so long, and I’m glad that it hasn’t gotten old, or boring, or tiresome. I believe I, and all defense counsel, serve an important role in our society and the legal system, and we aid in the never-ending search for justice. That is something we all can be proud of.
I end with this wish: May you never lose passion for the law, or for life.
By G. Gray Wilson
Several years ago I wrote an article for the State Bar Journal entitled, “A Jury of Psychopaths.” Not everything I write gets published, and this was one of them. I recall that at least one editorial pundit questioned the statistical validity of the concept of rogue juries, while after four decades and hundreds of jury trials, I just assumed that everyone knew that juries are generally crazy. That did not mean that they never reached the correct result in a case (meaning I won), but only that on occasion the wheels came off and someone unfairly, unjustly got clobbered (i.e., I lost). Holding these truths to be self-evident, as I do, then why would anyone ever take up the banner and march off to war in a courthouse packed with madmen and fools?
I think the answer is, because many times we not only see those unjustly accused of wrongdoing, but accusers whose motives and claims are less than honorable, fomented primarily by that lust for the Spanish peso ($). I recall the plaintiff many years ago who filed a pro se lawsuit claiming that a physician had ripped out her tongue, which made a ghastly impression on me until she showed up in court on a threshold motion and gave me and the court a tongue-lashing quelled only by a summary dismissal. Or the young woman (and this one actually had a lawyer representing her) who sued her doctor over unsatisfactory cosmetic surgery which her complaint flatly stated had left her “ugly” and misshaped (conjuring up “The Swarm” alternative rock band from Down Under). So it came as a surprise when we scheduled her deposition and Venus Aphrodite walked into the conference room to be examined. That one also bit the dust.
But then there were the occasions when a plaintiff filed suit and I determined objectively that not only had the defendant been negligent to a fault, but that the injuries in the case were also horrific. That objectivity often placed me at odds with the client, more often with the carrier (and cost me one or two in my humdrum career, not to mention a few verdicts), yet what bothered me more was that opposing counsel seemed not to share my genuine anguish but rather regarded the client as a meal ticket, nothing more.
I carried this proclivity to view all such legal conflicts from a Manichaean perspective into the minority of cases where I represented plaintiffs, but over time found that I could keep my head screwed on straight by taking the side of the defense, functioning more as solon than fanatic. This may explain why, during the first half of my legal career, most of my trials occurred because I either refused to settle out of spite or simply lacked the skill to realize that I ought to do so for the benefit of the client. Once I figured this out, I suddenly realized that nearly every time thereafter that I was trying a case, it was because I was forced to do so by an unreasonable opponent or a myopic party, on one side or the other.
Admittedly, there is a tactical advantage to sitting on the defense side of a case. In the military, I learned even as a reluctant guest that the defense has a three-to-one margin over the attacking horde, for a number of reasons, ranging from concentration of force, fields of fire, higher ground, fortresses, etc. The same holds in litigation, for different reasons. A plaintiff has the burden of proof, the defense is usually better financed (you will not see many lawyers defend a case on a contingency fee = pro bono), and the rules of procedure and evidence provide a number of strategic barriers to recovery. And call me crazy, but juries in this state are still generally conservative (this does hold in a number of counties) for the most part. But none of that has stemmed the tide of lawsuits or reduced the number of outlandish claims in our society that many like to regard as progressive.
No one can deny that we live in a litigious society, where every perceived wrong (e.g., the tryout who did not make the cheerleading squad in high school, or the politician offended by the opponent who called him a “halibut”) is arguably fodder for a lawsuit. Then there are also those suits asserting claims that are either outright false, fraudulent or advanced for an unethical purpose. Political and other agendas are not the province of the courts, which is why we have those other two branches of government that are even more flawed than the judicial apparatus. But when frivolous claims proliferate, genuine grievances can get lost in the shuffle, making judges jaded about everything that appears on the Monday morning docket or hesitant to boot any suit, no matter how baseless. The main casualty is justice. A responsible defense bar can assist the courts, mediators, parties, carriers and sometimes even opposing counsel with the daunting challenge of fairly and objectively evaluating claims, on the allegations and the evidence, so that this highly imperfect system works better than whatever Premier Xi or President Assad has to offer. If all else fails, then the worst of all these options is attempting to persuade a jury of questionable talent and virtue where the truth lies.
Mind you, I will jump at a good plaintiff’s business dispute or personal injury case at every opportunity, but as with the defense of every lawsuit, it is not about the sound and fury, which really do signify nothing, but what really happened. The judicial system is so structured as to impress all litigators into the role of being poor players who fret and strut their hour upon the stage and then are heard no more (apologies to Shakespeare), yet it more closely resembles reality TV, not Perry Mason, in the final analysis. So while the adversary system by necessary design becomes part of the problem, defense lawyers can be part of the solution, guiding every dispute along the road, if not to redemption, to a fair resolution for all concerned. And when that cannot happen, lock-and-load, it’s off to war.
In Memoriam: J. Donald Cowan, Jr.
It is with great sadness to share that fellow NCADA member and trial lawyer Don Cowan passed away on April 1st. Don joined the NCADA as a Charter member in 1977 and delivered his first the Recent Case Law Update to the membership at the 1979 NCADA Annual Meeting. In 1982, Don began presenting the Case Law Update twice annually at both the Annual and Fall Meetings - a tradition that the firm, Ellis & Winters, continues today.
Cowan was a graduate of Wake Forest University and the Wake Forest School of Law. He began his civil litigation career in 1973 following service in the U.S. Army Office of Staff Judge Advocate General Corps. A true leader in the law, Don was a Fellow, Regent, and Secretary of the American College of Trial Lawyers, and a former member of the ABA House of Delegates. He was a past president of the North Carolina Bar Association and Legal Services of North Carolina (now Legal Aid of NC). He served on the NCADA's Board of Directors from 1987 to 1990, and was presented the J. Robert Elster Award for Professional Excellence in 2007.
A memorial service will be held at 11 a.m. on Saturday, April 13th, at Christ Church on Edenton Street in Raleigh. For more information, please visit the complete obituary.
Please share your memories of Don with us by posting your comments here.
But, as a few of you noted, we were wrong! The actual number of members who have served as president of the Bar is 15. Way to go, NCADA Members!
Firmly Connected Thru Family: The Hornthals Expand Their Family and Their Tradition of Excellence in Practice
By Ben Gallop
North Carolina has a long tradition of small to medium sized firms that have built their practice providing a defense to those in need. Many of these firms have close ties to one another through relationships that have developed over many years and generations. Two such firms are Hornthal, Riley, Ellis & Maland, LLP, which has three offices in northeastern North Carolina and Roberts & Stevens, P.A., which is based in Asheville. Despite their juxtaposition at opposite corners of the State, there have long been both professional and personal connections between the two firms. Both firms have family histories, and recently, their firm families have been connected by marriage.
L P. “Tony” Hornthal and Jack Stevens met in law school during the early 1960’s and over the years became close friends. They served together for many years on the board of directors of Lawyers Mutual, and Tony succeeded Jack as President of the North Carolina Bar Association in 1996. Tony cannot think of a “closer friend in the world” than Jack and sincerely appreciates Jack’s “adoption” of his youngest son when Lang Hornthal located his business, Appalachian Designs, to Asheville in the mid-1990’s. Tony and Jack and their wives, Harriett and Cissie, have spent many vacations together and have often traveled abroad with each other. Jack’s longtime partner, Jim Williams, notes that “Our mountain to the sea connection, created by Tony and Jack’s great friendship, has endured for generations.”
Tony and his namesake, Phillip, practice together in Elizabeth City and have a long history of defending insurance matters and other complex litigation. Tony joined the predecessor to Hornthal, Riley’s insurance defense practice in 1965 and has never looked back. Phil started his carrier with the law firm of Cranfil1, Sumner, and Hartzog in Raleigh where he learned the ins and outs and fast pace of insurance defense work. In 1999, Phil moved home to Elizabeth City to settle down with his family and began working with Hornthal, Riley.
Jack and his son Wyatt practice together in Asheville. Coincidently, Wyatt and Lang Hornthal were classmates together at UNC Chapel Hill, graduating together in 1991 and becoming even closer friends when Lang relocated to Asheville. While socializing with Wyatt and other members of the firm on a Friday afternoon in 2006, Lang met a recently hired associate, Ann-Patton Nelson. Nelson hailed from Alabama and was the daughter of a prominent lawyer, Pat Nelson of Jasper, Alabama. She joined Roberts & Stevens in 2006 after graduating magna cum laude from Mercer University Law School. According to Wyatt, he “did not set them up, but the next thing he knew, they were dating!” Ann-Patton Hornthal was soon married to Lang, and Wyatt, of course, served as a groomsman in their wedding and is the godfather of their son, Ashe.
While presenting Tony with the North Carolina State Bar’s highest service award, the John B. McMillan Distinguished Service Award, Ron Baker, the current Vice President of the State Bar and an exceptional defense attorney is his own right, stated that after many years of practice he has “found Tony to be one of the finest lawyers he has dealt with in all of North Carolina.” Everett Thompson, a prominent Elizabeth City plaintiff’s attorney, also holds Tony and Phil in high regard. Like Baker, Thompson has practiced with and against Tony his whole career. He says, "Tony is a lawyers’ lawyer. He likes the law. He loves the law. He's a guy you can call up any time and get advice and direction from. He likes the give and take of the practice of law. Phillip's the same way. They are good folks to have down the street. Really add a lot to our bar." Following a recent oral-argument at the Court of Appeals, a lawyer in the audience commented to me about Tony’s exceptional “old school” style argument. Tony accepted the compliment and reminded me that “old school” is all he knows. His first argument to an appellate court was to the North Carolina Supreme Court in September of 1964, in a criminal case on behalf of the Attorney General’s Office shortly after his tenure as a law clerk for Supreme Court Justice William B. Rodman. He won that appeal. The opposing lawyer became his mentor and long time partner, Dewey Wells.
Phil and Ann-Patton have carried a tradition of excellence to the next generation while garnering significant case wins and accolades along the way. Phillip’s practice encompasses a variety of civil litigation: construction; insurance defense; personal injury; condemnation; commercial; real estate; and contract disputes. He is a member of Christ Episcopal Church in Elizabeth City, where he has served on the Vestry and as its Senior Warden, teaches Sunday School and sponsors the Acolytes; and has served as both a member and President of the Elizabeth City Rotary Club, President of the Elizabeth City Boys and Girls Club; and as President of Arts of the Albemarle, for which he was Co-Chair of its successful $3.2 million dollar fundraising campaign to renovate and build The Center – the current home of the Arts of the Albemarle located in the historical Lowry-Chesson Building in downtown Elizabeth City. Phil, his wife Kristy and their three children: L.P, Ellie, and James live within walking distance of Tony and Harriett. When not at the office together, the close proximity sometimes allows Tony to mentor Phil in the best ways to lose a game of tennis to one’s father.
Wyatt works closely with Ann-Patton and has watched her practice grow dramatically in recent years. According to Wyatt, “Ann-Patton is one of the best appellate lawyers in Western North Carolina and one of the nicest people you would ever want to know.” Ann-Patton fell in love with the area while spending her summers working at the Nantahala Outdoor Center during college and was eager to return and begin practicing law. Ann-Patton’s practice consists of defending clients in a variety of complex litigation matters, including professional and medical malpractice, personal injury, products liability, business torts, and appeals. Her peers have honored her as a North Carolina Super Lawyer Rising Star in both 2011 and 2012 in the area of Civil Litigation Defense. Ann-Patton serves on the Board of Directors for Pisgah Legal Services and she and Lang are active members of Trinity Episcopal Church in Asheville.
With such an enthusiastic group of lawyers in the family, it should be no surprise that the joy of the practice of law permeates family gatherings. “When our family gets together, I never fail to take advantage of the opportunity to pick Tony or Phil's brain about a case or talk shop,” says Ann-Patton, “I am so fortunate to be able to call them family and to follow in their footsteps.” Tony not only provides experience to these discussions, but greatly enjoys seeing Phil and Ann-Patton develop their practices. He says, "Its just such a hoot for me to be able to sit down and chew the fat about what they’re doing. It knocks me out to realize how smart both of them are, how well they understand their cases and the matters of real importance they are working on. To listen to them problem solving; that’s fun to do with lawyer to lawyer relationships, but getting to do it with your family is a special situation and occasionally gives rise to a real ‘Aha’ moment for me."
Phil has learned a great deal from his father over the years, but most importantly he learned, that “there is never any substitute for being more prepared than the other side, and that how we treat people, whether it's the other lawyer, the other party, the witness, judge, staff, court personnel, matters more than anything.” Tony also passed down to Phil some great advice from the late and great U.S. District Judge Franklin T. Dupree, Jr. about not taking litigation results too personally. As Judge Dupree once reminded Tony, “these are not our problems. They are our client's problems.” This concept has helped both Tony and Phil separate the intense nature of litigation from their personal thoughts and has allowed them to successfully manage both wins and losses in litigation over the years.
The connection between the firms of Hornthal, Riley and Roberts & Stevens started with a friendship and professional connections. Those relationships have never wavered and have been strengthened by the close familial ties between the firms. The future holds a lot of potential for the members of these firm families, and there’s no doubt that Tony and Jack’s tradition of excellence service to clients and the bar will continue for years to come with Ann-Patton and Phil.
This profile originally printed March 2012.
The Life of a Trial Lawyer – Lessons Learned: A Profile of James D. Blount, Jr.
By Toby Coleman
In his 60 years of practice, James D. Blount, Jr. has earned a reputation as a formidable trial attorney. A partner in the Raleigh firm Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Blount is one of the senior lions of the defense bar. He has been inducted into the North Carolina Bar Association General Practice Hall of Fame. A charter member of the NCADA, Blount received the NCADA’s Award for Professional Excellence in 2005. In 2008, he received a lifetime achievement award from the Eastern North Carolina Chapter of the American Board of Trial Advocates.
Blount remains in active practice. He has taken on a senior role at Smith Anderson, where he continues to practice in the firm’s medical malpractice group. The experience and knowledge he has gained during his career as a trial lawyer and a litigator—he has served as lead counsel in more than 300 civil jury trials—continues to be sought after by his partners, many of whom count him as a key mentor.
As esteemed as Blount is for what he has done in the courtroom, Blount is best known for how he went about it. Over the years, the Wilson native developed a reputation for being scrupulously civil, if not downright polite. His persistent professionalism made him a leader in the trial bar and the North Carolina Bar Association. Blount said it also helped him be a more effective advocate.
A trial lawyer, he says, “does not have to be obstreperous.” He firmly believes that it is more pleasant, more fun, and more productive when parties and counsel conduct themselves in a civil, professional matter.
It’s one of the many lessons that Blount, 85, has learned during his legal career. Over his career, Blount has watched the legal profession change in innumerable ways. Technology has completely changed the law office. The “billable hour” has fundamentally altered the way law firms like Smith Anderson operate. And, Blount says, the professionalism and courtesy that should be hard-wired into legal professionals has eroded.
Ever the teacher, Blount continues to try to pass along what he’s learned to his colleagues and friends. Here are a few of the lessons learned from Blount’s stellar career in the law:
LESSON 1: FIND OPPORTUNITIES IN THE UNEXPECTED
Blount loves being a trial lawyer and a litigator, and still pines to be in the courtroom preparing for trial. As much as Blount loves being what he calls a “real lawyer,” he came very close in his 40s to focusing his practice on corporate law and tax matters.
Blount was pulled into a full-time trial practice by tragedy. On Saturday, December 4, 1971, one of Blount’s partners, Willis Smith Jr., was killed in a plane crash at the Raleigh-Durham Airport. Blount inherited 144 of Smith’s cases.
“I went out of the office on a Friday afternoon and came back on a Monday morning with 144 cases I had never seen before,” Blount said.
From that moment on, Blount was a trial lawyer. “It changed my life completely,” he said.
The task of getting to know 144 cases all at once was potentially overwhelming. Rather than get dragged down by the work, Blount seized the opportunity both for himself and the firm. He immersed himself in the cases, carrying files with him everywhere. He gave up golf because he no longer had time for it.
“It took a while to work out, but out of it came a lot of good,” Blount said. “It made all of us much better lawyers much more quickly.”
In the process, Blount not only cemented himself as a trial lawyer, he also showed himself to be a steady leader.
“He has been a role model for people,” said Sammy Thompson, a partner of Blount’s who counts Blount as a mentor. “His adversaries respect him, his clients love him, judges admire him and juries follow him.”
As a trial lawyer, Blount has learned to greet the unexpected with confidence and humor. Because you never know what is going to happen next.
Decades ago, Blount was defending a car accident case that had gone to the jury. As they waited, Blount and the plaintiff’s counsel tried to negotiate a settlement. In the middle of the negotiations, the jury sent a note to the judge with a question: Could they award the plaintiff more that what he had asked for? The plaintiff, convinced he was about to get the verdict he wanted, cut off settlement talks and waited for the jury to return. When the jury did come back, though, it delivered a defense verdict. The judge was surprised. The plaintiff was shocked. Blount was stunned.
But what about the note? As it turned out, the jurors had never intended to award damages to the plaintiff. Their question had been a hypothetical one, borne of curiosity about the limits of their authority.
LESSON 2: MAKE CIVILITY A PART OF YOUR PRACTICE
Four decades later, Blount still remembers the courtesies that plaintiffs’ counsel extended him when he inherited those 144 cases from Willis Smith. By his count, every single plaintiff’s attorney except for one agreed to grant him the extra time he needed to become familiar with each case.
He is not so sure that his colleagues in the plaintiff’s bar would extend him the same courtesies today. “I think professionalism has gone downhill,” he said. “The attitude of plaintiffs’ lawyers and some defense lawyers is that they think they have to be obstreperous or obnoxious to be a good advocate—and you don’t have to be.”
Blount is a living example that successful trial lawyers can also be civil. Blount gained a reputation as one of the best defense-side trial lawyers in the state. And he did so while employing a strategy of common respect. Blount had a way of objecting without being objectionable. Plaintiff’s attorneys have said that Blount could “nice you into a state of paralysis” and “nice you to death.”
Blount first learned his velvet-gloved approach to competition from his high school football coach, who taught him to hit his opponents hard and then help them up. As he spent more time in the courtroom, he learned that civility also carried certain advantages with a jury.
“The easiest way to lose a case is to get angry and lose your perspective about what you’re doing,” he said in a 2001 interview. “I think that if the jury feels that the lawyer is being obstreperous for the sake of being obstreperous, they’re going to react to that.”
Of course, there are some aspects of Blount’s approach that are probably more innate than cultivated. It can be tough, for instance, for other practitioners to adopt Blount’s consistent willingness to try to like all the lawyers he works with and against.
“The worst thing I’ve heard him say about another lawyer is, ‘That fellow is hard to like,’” said Thompson.
LESSON 3: KNOW WHAT YOU NEED
Blount began practicing law in 1952, and therefore spent years trying cases without any discovery. The experience taught him to try cases by the seat of his pants. It also informs his strong belief that most successful litigators are those who know what they need, and tailor their discovery requests accordingly.
Blount says that litigators should learn to focus on details necessary to go to trial, and avoid the blanket discovery requests that end up requiring parties to focus “on a lot of irrelevant material they do not need.” Having the discipline to focus on what you need to prevail, Blount said, can be the difference between a positive outcome and a negative outcome at trial.
“I’ve seen more cases lost by poor, lengthy, uncontrolled cross examination than too little examination,” Blount said.
LESSON 4: LIKE WHAT YOU DO, AND DO WHAT YOU LIKE
It is no accident that Blount is still coming to work every day, long after many of his contemporaries have retired their shingle. Blount enjoys being a lawyer and coming into the office.
“I don’t remember a single day in my practice where I haven’t looked forward to coming into the office each day,” he said, smiling. “There might have been some, but I don’t remember them.”
And so on most weekdays, Blount puts on a suit and goes to his office on the 26th floor of Raleigh’s Wells Fargo Capitol Center. It’s there he gets to have “fun”—he sees people he enjoys, keeps up with developments in the world of medical malpractice, and gets to keep a finger on the pulse of the legal community of Raleigh and the state. He misses the trial work, but coming into the office “beats staying at home.”
He expresses concern about those who cannot understand why he keeps on working. “People say I don’t want to be doing what you’re doing at your age, and that bothers me,” he said, “because you burn out when you do things you don’t enjoy. You don’t burn out doing things you enjoy.”
This article originally printed February 2012
The Battle Winslow Scott & Wiley, P.A. law firm of Rocky Mount celebrated 100 years of service in October 2011. Kemp Battle and Frank Winslow founded the firm in 1911 strongly committed to excellence in the legal profession and the highest level of community service. There are currently 16 attorneys in the full-service firm who look forward to providing another 100 years of legal and community service.
Of the 16 attorneys, five are current members of the NCADA: Greg Crumpler, Marshall Gallop, Katherine Fisher, Dee Whitley and Sam Woodley. Brian Scott, Of Counsel with the firm, is a charter member of the NCADA which was founded in 1977.
Sam Woodley served as president of the NCADA from 1997-1998 and was awarded the J. Robert Elster Award for Professional Excellence in 2009.
Learn more about this firm’s rich history in North Carolina here:
“Firm Marks 100th Anniversary”, The Rocky Mount Telegram
North Carolina Association of Defense Attorneys
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