Recollections of the 11th Circuit Bar #6

RECOLLECTIONs OF THE 11^th CIRCUIT BAR #6

When I joined Dudley Herman in the private practice of law in 1960 in Gregory, South Dakota little did I realize that I had landed in the hot bed of trial lawyers in South Dakota. This was the famous 11^th Circuit Bar where lawsuits were filed at the “drop of the hat.”

George F. Johnson and Dudley R. Herman were the two top trial lawyers and they both headquartered in Gregory, South Dakota. These two fought like only brothers can, but when threatened by a lawyer who “was not from around here” they forgot their brotherly quarrels and joined forces  to drive the rascal out, just like you have witnessed Fido do when his territory is threatened.

          But George carried it further. Through his and Dudley’s insistence we never had a Judge appointed that the 11^th had not independently  selected.

          Unlike the precedent established by Bill Janklow, who after all was trained in the 11^th Circuit and should have known better, no Governor was ever given the opportunity to fill a vacancy unless the 11^th Circuit first approved.

Here’s how it worked.

When H. P. Gilchrist died shoveling snow in Kadoka, that vacancy was filled in the following time honored 11^th Circuit manner.

A Circuit wide meeting was called for the sole purpose of selecting a Judge to be nominated by the Governor as a replacement for Judge Gilchrist.

Three lawyers would be nominated from which the Governor could select a replacement.

George and Dudley had the following scheme.

First the meeting decided that they consider  Marvin Talbott of Winner and John Jones of Presho . Of the two John Jones was the Circuit’s choice.

Who would the other two nominees be?

Simple. George Johnson and Dudley Herman’s name were submitted, but not before they signed a blood oath that they would immediately write a letter to the Governor that if appointed they would not serve.

So it was that John B. Jones became a Judge of the 11^th Circuit and would later, with the help of his reporter, Dan Parish be elevated to the Federal bench acing out John Larson , another 11the circuit lawyer, in the process.

Judge Jones would, for me at least, patent what I considered the polite “judicial yawn.”

 When arguing a particular factual matter, if Judge Jones thought you might have strayed too far afield he would always smile and say “Is that right?” in am manner  in which he was really stifling a yawn.

Mt youngest son, Bob, would master that hidden, but manifested yawn, when  if I had told him of some long and boring political tale he  would just say “interesting”.

John Jones would becomes a very good Judge, who, sometimes, however  reach conclusions or decisions that would lead you to mumble, “is that right?” or, “interesting” but never would anyone mumble, “and the horse you rode up on.”

The 11^th Circuit trial bar , led by George Johnson, closely guarded its territory in other ways.

The active trial members made a pact that they would not sue any personal injury tort claim unless the defendant had insurance. Since “insurance: could not be mentioned in the trial itself it was important that potential jurors through out the 11^th circuit know that  the trial bar would not commence a lawsuit unless there was , in fact, adequate insurance coverage.
George and Dudley never ever represented any insurance company.

If it should happen that a personal injury plaintiff would hire a firm outside of the 11^th Circuit, George Johnson and Dudley Herman agreed that they would help any defense attorney in that particular case. When a Minneapolis  personal injury attorney brought a case George and Dudley helped John Frank Lindley of Chamberlain and the noted Minneapolis trial lawyer was sent home with his tail between his legs.

          George also knew that if the 11^th would somehow be consolidated with Pierre and Hughes county it would eventually sound the death knell for his beloved 11^th circuit trial bar.

          In fact the 11^th  would be joined with the dreaded Hughes county neighbor to the north and circumstances would develop after the retirement and death  of Winner Judge Marvin S, Talbott that  facilitate the demise of the old trial bar.  [1]

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1  When the trial bar was finally paid for their time and effort for for the defense of indigent defendants all of the judges, until the retirement of Judge Marvin S. talbott faithfully followed the mandates of SDCL 21A-40-7 which required that the Courts and the county commissioners provide a method for the appointment of attorneys  on “a equitable basis  through a systematic and coordinated plan.’

His replacement denied a commissioners request that the court and the Tripp county commissioners meet to adopt such a plan.  They were told that the court would select all the attoneys for appoinment  without any help from the County Commissioners.

As a result the records of the Tripp County Auditors office show the following:

All payments  for Court appointed attorneys for 2009 totalled $100,331.78 of Tripp County taxpayers money.

Of that sum  appprooximately $85,000.00 was paid to out of county attorneys, mainly from  Pierre, South Dakota.
In 2010 some $89,000.00 of Tripp County taxpayers funds were paid for court apointed attorneys. of that amount  nearly 90% was paid to out of county attorneys.