Members & Firms

by the Honorable Linda Stephens

Twenty years ago, I became the first female president of the North Carolina Association of Defense Attorneys. Serving as president of this organization has been one of the crowning accomplishments and highest honors of my professional life. Getting there was a challenging, but also rewarding, journey. Then and now, I have found it fitting that I became the first female president in 2001, because, for so many years, the notion of a woman leading a group of civil defense lawyers was as alien an idea as the tale told by Arthur Clarke in 2001: A Space Odyssey. 

I was in law school at the University of North Carolina at Chapel Hill from 1976 until I graduated in May 1979. Women made up less than 20% of my class, and some male classmates believed, and sometimes outright expressed, that we were “tokens” taking up the space that should have been given to another of their kind. I wouldn’t call the environment hostile, but it definitely was not welcoming. In those days, few women went into careers as litigators. Most went into government service, still a noble calling. I became a law clerk at the Court of Appeals for a year and then served as a deputy commissioner for the Industrial Commission for four years. But, I wanted to try cases. I did not want to spend my career watching other lawyers, mostly white men, try cases. I got lucky. In August 1984, I left the Industrial Commission to go to work as the first female lawyer at Teague Campbell Dennis and Gorham in Raleigh. 

Early on, I was required to apply for membership in the NCADA. I did. Not long after, I received my Certificate of Membership recognizing “him” as a “member in good standing.” I promptly sent the certificate back, telling then Executive Director Annette Boutwell that I was not a “him” and that I was sure she had inadvertently pulled my certificate out of the wrong stack. At that time, I had become the third female member of the Association, behind Beth Fleishman and Sheila Fellerath. Talk about trailblazers! Anyway, Annette let me know that it was not a mistake. The Association did not have any membership certificates for women. But, she was ordering some!

I continued to call out the white male members of the Association. My firm always supported the annual meeting, and I attended my first one in 1985, when it was held at Hilton Head in April. The weather was unpredictable, frequently cold and rainy. But there we were. The CLE was as exceptional as it has always been. Back then, though, the speakers were all white men, who addressed the audience as “Gentlemen.” Troublemaker me, I raised my hand to say, “I’m not a gentleman!” And then I went up afterward to tell the particular speaker the same thing. 

I railed against the fact that there were never any women speaking at the podium! Careful what you ask for. I think it was 1994, could be wrong about the date, I became the first female speaker at the annual meeting. My place on the program? Last on Saturday. But, it was a significant start. 

I do not remember who asked me to be on the Board, but I gladly accepted, served my three years, and went away. Then, the call came. New president Jim Cooney wanted me to be secretary. I have never been fond of taking the minutes, but I jumped at the chance to be an officer of this Association. First woman officer. Pressure on. Did it. And I will forever be grateful to Cooney for recognizing and rewarding my fight for the women in this Association. I rose through “the ranks” after that to eventually become President. 

Leslie Packer became the second female president of this Association. I was happier and prouder at her induction than my own. Then, Bonnie Refinski-Knight, followed by Tricia Shields, the first time the Association benefitted from two women in a row!  And then the first African-American woman, Day Matthews! And, coming up next, Sara Lincoln!

I love Sara as if she were my daughter. I am so happy that she is going to be leading the NCADA for the next year. She will advance the cause and progress for women in the profession and, specifically, as civil defense lawyers. Can’t wait to celebrate with her!

__________

Hon. Linda Stephens is a past president and is the 2015 Recipient of the J. Robert Elster Award for Professional Excellence.

by John S. Willardson

BOB SMILED

The date was May 17, 2007. The place was Centenary United Methodist Church in Winston-Salem. The occasion was the memorial service for Bob Elster, a beloved charter member of the NCADA. I was there along with Lynette Pitt and Richard Bennett to pay our respects. Former Chief Justice Jim Exum was seated to our left on the same pew.  During the opening prayer, a cell phone sounded nearby. The ringtone was Stars and Stripes Forever. Heads turned and a person seated nearby began squirming as any of us might do in such an embarrassing situation. Following the service, that person told me, “I didn’t know whether to stand up and salute or crawl under the pew in front of me.”   It would probably be unfair and unprofessional for me to mention the name of that person, but his initials were RVB and he lives and practices law in Winston Salem. I am sure that our friend, Bob Elster smiled when that occurred.  

When I was asked by Lynette Pitt to write an article about professionalism and trial practice from the perspective of a small firm, small town lawyer, my initial inclination was to decline because I doubted it would be of interest to current members of the NCADA. However, I have decided to proceed with an article which I hope you will find helpful or at least interesting. A characteristic of senior lawyers is to share war stories and this short article will tell a few.

THE BEGINNING

Following graduation from UNC Law School in 1972, I served as Research Assistant to the late R. A. Hedrick at the North Carolina Court of Appeals. I had no idea where I would go to practice law following that clerkship. A few months into that clerkship, then Governor Robert Scott appointed Julius A. Rousseau, Jr. of North Wilkesboro as a Superior Court Judge. Judge Hedrick encouraged me to interview with the firm. Neither my wife Ann nor I had ever been to Wilkes County and had no connections there. I went for an interview and was offered a position as an associate to begin in August 1973, when my clerkship ended. 

WAR STORY NO. 1

AUGUST 1973 – BAPTISM BY FIRE

I was hired as an associate of the late Larry S. Moore, a wonderful trial lawyer and great southern gentleman. He was genteel, polite, and loved by everyone. On my first day in the office, he told me that there was a criminal term of Wilkes Superior Court, that we would simply go to the courthouse that day so that I could observe motion hearings and a trial and meet other lawyers and members of the Clerk of Court’s staff. He did not tell me that Judge Rousseau would be the presiding judge. Although I had heard many oral arguments in the NC Court of Appeals, I had never actually been in a trial courtroom.

After entering and being seated in the courtroom, Judge Rousseau, in a fairly gruff voice, directed Mr. Moore to approach the bench. Although I was seated 15 feet away, I heard him ask Mr. Moore, “Do you want John to get his feet wet?”  Mr. Moore said “yes,” and I was appointed that day to represent an unfortunate individual charged with a second or third offense DWI. Judge Rousseau directed the Clerk to “put twelve jurors in the box.” Mr. Moore left the court room, and I was on my own to select the jury and try my first case. I had no advance warning that any of this was going to happen.

Somehow, I bumbled through, and late that afternoon, returned to the office in North Wilkesboro. I was upset with Mr. Moore for having abandoned me. It was late in the afternoon and Mr. Moore was seated at his desk with a glass of bourbon and a big smile on his face. He asked me about the trial, and it was all that I could do to contain myself and avoid saying something harsh. Perhaps it was nascent professionalism that kept me from doing so. But more likely, it was the need for a job and income. We discussed details of the case including the fact that the jury had deliberated for 45 minutes without reaching a verdict before court was recessed for the day. Mr. Moore said, “You must have done something right, you have confused the jury.”

The confusion did not last long because the next morning the jury returned and convicted the unfortunate client. As a footnote, my client had a homemade tattoo on his forearm that said, “Born to Lose.” Fast forward about 35 years later and the same gentleman came to see me about a disability case and told me that he had been working as a security guard.

WAR STORY NO. 2

THE COW CASE

Approximately three weeks later, Mr. Moore handed me a file and told me that the case was on the District Court Civil Jury calendar for trial the next day and that he wanted me to handle it. It was my first insurance defense case. I protested that I knew nothing about the case and could not possibly be prepared. He replied, “This is a cow case. No one has ever lost one of those.” He was wrong. I lost the case. For those of you who do not know, a “cow case” is a case in which a farmer is sued for negligently maintaining fences; a cow escapes from the pasture, wanders into the road and is struck by a passing vehicle, sometimes resulting in a lawsuit).

WAR STORY NO. 3
MOONSHINERS and CRIMINAL LAW

At that time, there were 13 ATF agents in Wilkes County because of the widespread moonshining in this area. In addition to our civil practice, we handled a wide variety of criminal cases ranging from many “liquor” cases, drug cases, assaults, and even murder. In a small-town general law practice, we did a bit of almost everything. After approximately 20 years, I discontinued any serious criminal court work to concentrate in the development and handling of a growing insurance defense practice. Eventually our firm grew to five lawyers, but I now practice alone.    

During the following 48 years, hopefully my trial skills improved a bit. If so, it is because I have learned from each trial experience and have benefited greatly from my 40+ year association with the NCADA and DRI. 

What have I learned about professionalism from a small-town practice? I have learned that it is important (1) to remain calm in the face of unexpected developments or adverse rulings; (2) to pace the cadence and tone of your speech; (3) to dress professionally and appropriately; (4) to be yourself; (5) to carefully draft and proofread documents; (6) to be polite and respectful of judges, opposing counsel, jurors, witnesses, and courtroom staff; (7) to be prepared; (8) to be honest (9) to be fair; (10) to  be humble, not arrogant; (11) to avoid “sharp” practices and (12) to treat everyone with the same degree of respect and fairness with which you would want to be treated. 

The NCADA is comprised of many great lawyers who embody those basic principles in both their lives and practices.  Bob Elster would be proud of this association and its members. Undoubtedly, you, too, have helped keep that smile on his face.

__________

John S. Willardson is a past president and 2016 Recipient of the J. Robert Elster Award for Professional Excellence. 

By Leslie Packer--Ellis and Winters, LLP

There are two facts about being a defense attorney that structure much of what we do.  Beginning with the obvious – a defense attorney is asked to defend a defendant who has been accused of wrongdoing of some sort.  Second, a defense attorney is reacting to allegations that someone else has formulated.  Both of these facts are fundamental to our mission. 

With respect to the first fact, our clients are not willing participants in litigation and have not initiated it.  Our job, therefore, is to represent them and guide them through a process that is often scary, unpleasant, and perhaps confusing.  We do not get to make the facts – we have to make of them the best we can, and help our clients reach the best possible outcome in what is often a difficult situation.

So, we begin with a client who is not happy.   One of our critical responsibilities is to learn about the client, who may be an individual or a corporation.  When it is a corporation, it is still made up of people, so we learn who they are, what their roles are, and who the decision-makers are.  Even if the people we are helping are employees of a corporate defendant, they still have concerns.  For both individual and corporate clients, a surprising number of those concerns are non-monetary.  Clients are concerned about the effect of an adverse outcome on their jobs, reputations and families.  Sometimes the client’s biggest concern may be about something that is peripheral to the litigation, but extremely important to the client.  For example, the client may have been going through counseling related to the incident in question and is uncomfortable disclosing that fact.  It is our responsibility, early in the life of the case, to explore these concerns, both to provide reassurance and also to be prepared to guard against  undesired outcomes. 

We need to explore the client’s desired outcome.  We then build our defense to reach that outcome – whether a settlement, summary judgment, or a defense verdict.  Although it may be tougher on the ego, sometimes the best outcome is to obtain a reasonable plaintiff’s verdict.  When there is clear liability but a plaintiff has unreasonable settlement demands, a verdict that is lower than the last demand may be a “win” for the client.  In the mass tort setting, a low plaintiff’s verdict may help in establishing norms for settlements on a large scale, and thus may be very valuable to a client.

As we begin to develop our defense, we learn about the case.  Often there are documents – some good, and almost always some bad. We interview witnesses and engage in discovery.  As we learn more, the defense strategy may change.  Apparent weaknesses may turn into strengths, and vice versa.  It is our job to communicate with the client about the evolution of the case and corresponding defense strategy, and to assess whether the desired outcome remains achievable.

To be effective in representing our clients and reaching their desired outcomes, we must be trusted advisors to our clients, but also respected ambassadors to others.  We are ambassadors to opposing counsel, to mediators, to judges, to court personnel and to jurors who may ultimately decide the client’s dispute.  Because we are ambassadors for our clients, our conduct reflects upon them.  Also, our conduct builds our individual reputations.  Our reputations will determine our ability to be effective advocates in future cases.

A defense attorney who is always true to her word, is respectful to opposing counsel, and is appropriately zealous in her reputation, but deferential to the tribunal, will be an effective advocate and ambassador for her client.  It can be tempting to take the bait when opposing counsel is disrespectful, bullying or abusive, but ultimately it is not effective or helpful to achieving the ultimate objective – the client’s desired outcome. 

Unduly aggressive behavior can be a tactic, especially in depositions.  Rarely do we see such conduct from our fellow members of the North Carolina bar, but sometimes we see it from out-of-state counsel.  Unfortunately, this type of bullying is more often directed at younger attorneys.  In a recent deposition, plaintiff’s counsel started mimicking the speech of a younger defense attorney using a baby voice.  The same attorney stated that an objection was “clearly made by someone who has never tried a case.” I have found that ignoring this type of behavior is often the best response, but occasionally it is necessary to engage, in a professional manner, to communicate that bullying will not work – to stand up to the bully.  This is especially true when the bullying is directed at the client or witness, who needs to feel protected.  Most often, however, ignoring the bully works best.

There are some defense attorneys who treat every case as if it is an outrage, and all plaintiffs’ counsel as the enemy.  I have not found that approach to be effective.  There are cases that are truly tragic to all involved, and plaintiffs who deserve to be treated with compassion.  Given that the majority of cases settle, developing a professional working relationship with plaintiffs’ counsel is likely to be helpful to our clients.  I received a great piece of advice from the General Counsel of a medical device company.  He said that when he was a practicing defense lawyer, if he had a new case with an opposing counsel he did not know well, his first action was to invite opposing counsel to lunch, not to talk about the case, but to get to know each other.  I have employed that practice myself, and found that it leads to a respectful, professional relationship that benefits the client whether the case settles or goes to trial.

The second fundamental fact about being a defense attorney is that we usually are responding to allegations rather than formulating them.  We begin our representation in a reactive state, responding to allegations and theories that a plaintiff may have spent months or even years formulating.  We are playing catch-up from the beginning, as we learn the case and begin formulating our defenses.

The plaintiff’s theory may change and evolve as the record is developed.  A skilled plaintiff’s counsel will abandon claims or theories that are not well-supported by the record, and will develop new theories that may not have been apparent early in the case.  I have seen the entire theory of the case change completely as late as opening statement at trial.  When that happens, it is difficult to discard witnesses, theories, nice-looking demonstratives and the like on a few moments notice, but that is what we must do.  As the plaintiff’s attack changes and becomes more focused and streamlined, so must the defense, as it must meet the attack squarely.  We become so invested in our cases that this streamlining process is much harder to do than it seems.  Having anticipated every possible angle of attack, it is hard to maintain the discipline to focus only on what is actually presented.  Introducing any unnecessary fact, witness, or evidence creates risk of distraction or worse – harming the client’s case. 

Even more challenging than streamlining is to anticipate and be proactive throughout the life of the case.  We must look for opportunities to take control where possible.  Seeking control may be as simple as taking control of the calendar and the discovery scheduling order.  It also extends to developing the narrative, however.  It is safest to have our clients prepared to volunteer nothing, and reveal as little as possible.  At the time of trial, however, we must have a compelling story to tell.   If we are merely reacting to plaintiff’s development of the evidence throughout the life of the case, we are not developing a story to tell the jury that will paint our client in a favorable light.  There is a delicate balance between making the plaintiff, who has the burden of proof, prove his case, but giving the factfinder some reason to like and understand the defendant.   

Having enjoyed the privilege of practicing as a defense attorney in North Carolina for almost 35 years, I have learned everything I know from my partners and colleagues, from counsel for co-defendants, and from many able plaintiffs’ counsel.  Small courtesies along the way have meant a great deal.  I remember very senior lawyers from my own firm and from other firms, helping me out when I was a young lawyer – driving to remote depositions, conferring regarding strategy, and some off-the-record praise and encouragement from opposing counsel.  What it means to me to be a defense counsel today is to pay it back to the best of my ability.  I hope to extend a helping hand to younger attorneys so they can learn the tricks of the trade, but more importantly, come to enjoy the spirit of  collegiality and professionalism that makes one a truly effective defense attorney.

______________________

Leslie Packer is a past president and 2017 Recipient of the J. Robert Elster Award for Professional Excellence.

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.

_________________

Ken Kyre, Jr. is a past president and 2018 Recipient of the J. Robert Elster Award for Professional Excellence.

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.

______________________

Gray Wilson is the 2019 Recipient of the J. Robert Elster Award for Professional Excellence.

In Memoriam:  J. Donald Cowan, Jr.
1943-2019

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.

By Allen C. Smith​, Partner
Hedrick Gardner Kincheloe & Garofalo, LLP

If you practice civil litigation on the defense side in NorthCarolina, there is no better organization for you to join than the North Carolina Association of Defense Attorneys. Not a single one!

I have been a member for 25 years, and I have found my membership to be invaluable. The membership has allowed me to forge friendships with attorneys across the state (and of different levels of experience!), meet members of the bench from across the state, and participate in unsurpassed continuing education programs. Speaking of programs, the Annual Meeting is a great place to meet fellow defense attorneys, renew relationships, and share common experiences in a relaxed atmosphere (cheers!) in addition to experiencing excellent education opportunities. Every year, the Annual Meeting reinvigorates my commitment to practice law as I enter the summer.

Most of my practice is in the western half of the state, with a large portion in Mecklenburg and the surrounding counties. However, from time to time, I have cases in the Triad, Raleigh, “Down East,” Asheville, and other counties in the mountains. When I have a question about a judge, an opposing attorney, a mediator, or a local rule, I call one of the attorneys in the area with whom I have formed a friendship. Likewise, I am always happy to answer questions when a fellow NCADA member calls me with questions about Mecklenburg or surrounding counties. (Quite often, I even share accurate information!)

I have built these relationships over the years, and many are long-standing. Developing these relationships creates trust with other defense attorneys, something essential when working with multiple defense attorneys in a case.

In sum, my involvement in the NCADA is critical to my ability to serve as a defense attorney in North Carolina.

Share your reasons for being an NCADA  member
and invite a colleague to join today!

In the November edition of The Resource, we noted that 13 past or current members of the NCADA have served as president of the NC State Bar.  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! G. Gray Wilson 2018-2019   Ronald L. Gibson 2014-2015   Ronald G. Baker, Sr. 2013-2014 NCADA Past President M. Keith Kapp  2012-2013   Bonnie B. Weyher 2009-2010   Irvin W. Hankins, III 2007-2008   James K. Dorsett, III 2002-2003   E. Fitzgerald Parnell, III 2001-2002   W. Ervin Spainhour  1996-1997   Robert A. Wicker 1992-1993   William K. Davis 1986-1987 Founding Member & 1st President of NCADA Roy W. Davis, Jr.  1985-1986   Grady B. Stott 1978-1979 Charter member of NCADA C. Woodrow Teague 1977-1978 Charter member of NCADA Armistead J. Maupin 1959-1960 Charter member of NCADA

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