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TRANSCRIPT OF TESTIMONY OF JUDGE PLEICONES AT PUBLIC HEARING OF MARCH 30, 1994:

JUDGE PLEICONES- EXAMINATION BY MR. ELLIOTT:
Q. You've been on the Circuit Court bench for about two and a half years now, and there are some who might have the perception that you need a little more seasoning before moving on to the highest appeals court in the State. How would you respond to the people who have those perceptions?
A. Well, I'm a quick study. I frankly think I need no further seasoning. I have, and I'm happy to say, been asked on seven occasions to serve as an Acting Associate Justice on the South Carolina Supreme Court, in not minor cases. A death penalty case among others, and I feel that I have the necessary experience to serve as an appellate judge.

I have an extensive career as a practitioner and, as you can see, I have an extensive amount of appellate experience as well.
Q. Like some of the other candidates, you ran for public office before becoming a judge. Are you currently engaged in any kind of political activity?
A. Other than this, no.
Q. Other than this. Thank you. I also notice that you have an undergraduate degree in English, and I believe you wrote for your college literary magazine. So --
A. I did.
Q. -- I take it that you like to write?
A. I do indeed.
Q. But it also appeared you hadn't had much opportunity other than in the professional area for writing. I guess mostly that's writing, now writing orders; is that correct?
A. (Witness nods in the affirmative).
Q. What do you strive for in your orders? What constitutes a well composed order for you?
A. One that's succinct, that's as brief as possible, that hits the points of law that were raised by the parties. And the Supreme Court has been returning cases to, or remanding them to a lower court where a judge has not fully ruled on matters that were before him or her, and so I take every

I typically, as with most judges, do not write my own orders, but what I will do and -- is to submit a jointly addressed letter to both parties. Sometimes these letters go on for three and four pages telling them exactly what I want contained in the order by the person who is to write it, and they're very detailed and I take the instructions and compare it to the written, final written product and quite frequently make changes.

Just make sure that everything is hit and everything is appropriately supported by a correct citation of authority. I do check them.
Q. You do check the cite?
A. I do.
Q. If you're elected to the Supreme Court, what is going to be your test for when you feel you -- it's appropriate to write a dissent?
A. When I disagree with the majority.
Q. How --
A. And I don't mean to be flippant.
Q. Well, how strongly will your feelings have to be?
A. Well, the law is not necessarily a black and white thing, and I can be persuaded that there -- to agree with perhaps a shade of gray, assuming that it is not a matter that is of momentous import. But if I feel that the majority is wrong in their application of the law, I would feel that it would be appropriate to dissent in any case.
Q. What's your view of concurring opinions?
A. Of --
Q. Concurring opinions?
A. Well, I think that concurring opinions can be useful. Obviously, they're beneficial to the Bar in determining what the point of view of the sitting justices are, and I think the word concurring opinion -- if I believe that the right result has been reached for the wrong reason, I would have no hesitation about writing a concurring opinion, concurring in the result, but not in the reasoning. And I think that they're appropriate and I think that they're beneficial to the Bar.
Q. What about the position on the Supreme Court appeals to you and what do you think that you particularly would contribute?
A. Well, without sounding immodest, I believe that I have the scholarship that's necessary to serve on the Supreme Court. I think it's an enormous responsibility and I think that I would bring -- I'm proud of my reputation and I think I bring a good reputation, and will bring a good reputation, to the Supreme Court.

I was a practitioner of the law for 23 years and was moderately successful at that both economically and professionally. I yearn for something other than going to my office at 6:00 a.m. and leaving my office at 8:00 p.m. I could do that. I think that I have a lot to contribute and I think that the desire for public service that I have and that I would like to continue in a role such as that. Public service.
Q. All right.
A. And an ability to contribute. I think that I would represent our State well.
Q. If you're elected to the Supreme Court, what would be your practice about preparing for oral argument? Would you read -- particularly when the case is not preassigned to you, do you read the transcripts, the briefs, just a statement of the case? What do you do and what do you think the practice should be?
A. I think that in every case, it would be perhaps overly ambitious to suggest that anybody is going to read every transcript, every page of every transcript of every case. But the cases are, in fact, briefed very well and summarized very well by the staff attorneys and by the law clerks that the justices have. And I know that, for instance, in the death penalty case that I was on, I read every page of each volume of each transcript, several thousand pages.

Depending upon the complexity of the case, I would tend to think that I would -- there would be cases in which I would read everything. In each case I would not do that, but in each case, certainly, the bench memorandum that had been prepared, obviously the briefs, you would have to read the briefs of the parties. I think you owe that to the parties.

I don't think that -- I do that now when people have oral arguments before me on nonjury matters. The worst thing in the world for a lawyer is to know that his presentation has not been previously read by the fact finder. And so I do have that practice now and I would continue that

That's what you get paid to do, so -- and I go in at least one day on each weekend, because I'm a little -- I take on a lot of things. And when you take on a lot of things you have a lot of things that are backlogged.
Q. Well, that sort of leads me to the next question. One of the things that we did is, we've checked, I guess they call it the 30-day report or the report of matters that judges have pending over 30 days. And it doesn't necessarily mean anything, but you did have some matters
-- and the period of time we checked was 1992, '93 and January of '94, and you did have some matters that carried over. If you -- and like I say, it doesn't necessarily mean anything, but could you address that for us, please?
A. Yes, I'd be glad to. When you have 60 cases scheduled for you in one day on nonjury, maybe you decide 58 of them and then you've got two of them that need more attention, and your undivided attention.

I can tell you that last year, for instance, I spent almost six weeks on one case - three weeks in the trial and about three weeks in the motions. That was an extremely complex products liability case. That case, for instance, is still going on because there are post-trial motions. The briefs, the transcripts, the motions in that case fill 72 of the notebooks that you have in front of you there, that size notebook.

I -- when it's something that's that complex, I tend to read it. I tend to be perhaps obsessive-compulsive about reading everything when somebody presents it, and I would think that my 30-day reports would not reflect more than about two or three such matters because --
Q. No, sir, never more than two.
A. Yes. And -- but I think that that probably will always be the case with me because if you've got something that's important, you may put it on the back burner for a while until you get an opportunity to have a

However, that begins your day, you start at 8:30, doing that because that's the time that the people get in the courthouse. People will seek you out because they know you will take on, for instance, a temporary restraining order at 5:00 o'clock in the afternoon on Friday, or Saturday, you'll go in and do that.

I make myself available. When you make yourself available, people take advantage of your availability and thus, you tend to do as much work as these people have for you. So that's what it is, I just make myself available and people find me.
Q. Do you tend to take on complicated matters or do you like to --
A. I do.
Q. -- handle the complicated matters?
A. Yes, and in point of fact, I mean the products liability case, it was an interesting case. Sometimes you get tired -- even though they're important to the litigants, you get tired of hearing fender bender wreck cases, so -- important and complex products liability case.
Q. You recently lectured at the 1993 State Bar meeting on ex parte communications. What guidance did you offer, what's your personal rule about ex parte communications and were there particular types of situations that you talked about that you felt deserved special attention that are -- don't so easily fall into the black letter law?
A. Well, you know, there are certain permissible ex parte communications. Obviously, they have one built in to our statutory law on death penalty cases. And I can tell you this, on the death penalty cases, I personally have, my practice has been even on the ex parte communication to bring -- the initial one, whether it's an application for funds, as you know, the approval for the expert witnesses, I have -- my practice has been to bring the court reporter into my chambers with the

I allow -- I get my secretary and law clerk, even though you cannot insulate yourself from ex parte communications by using staff, I generally require people to schedule matters through them for the simple reason that people are not as tempted to pour out their hearts and tell a law clerk or a secretary about their case as they are a judge, and it's usually preceded by something like, "I'm not trying to ex parte you or anything like that," which is, of course, you know, what they're trying to do and it may or may not be innocuous.

I try not to be offensive with people. I try to tell people, look, don't talk to me about the case. If somebody persists, and nobody has, I think that I would have to take the appropriate action, which would be to report it to the Board of Commissioners.

Now, what I do to avoid ex parte communications -- and I've been sensitive to this since the moment that I became a judge because I didn't like the practice of judges communicating with one lawyer relative to the preparation of an order. As I told you earlier, if I have a case that needs, that requires an order after some period of some advisement by me, I would jointly address a letter to the lawyers for each litigant telling which lawyer to -- I want to prepare the proposed order, putting in some detail what proposed findings and conclusions I want in the order and telling the parties that they could consult me by way of a joint telephone conference for clarification, but not for reargument of the case.

Recently our Supreme Court has approved minor refinements or tuning, tune-ups on orders that you've told one party to do. But I don't even do that. I just think it's better to send in the order, and I always put a caveat in the end, so that they don't tell their clients about it, that as always, I reserve the right to make any changes in the order, to include a change in the result. And if you tell them that you're going -- you reserve the right to make a change in the result, the prudent lawyer does not tell his or her client that we've won, we're just waiting for the order to come back.

I try to disarm people more with humor than anything else, than with being overbearing. If somebody comes in, I say, "Look, you know, don't ex parte me about the case." And if they were inclined to do that, they don't do it. If I see one lawyer walking in and I know that, for instance, he got here at 9:30 and the other lawyers, they were supposed to be here at a quarter of 10, to pre-try a case, I just say, you know, wait for the -- you know, so and so to come, and when he gets here, just let me know.

But in terms of being sympathetic on a personal level, occasionally there will be a case, whether it's a civil case or a criminal case, where you'll be sympathetic to a victim, to an accused person, a plaintiff or a defendant, and you can't divorce yourself from human feelings.

But, you know -- I can't imagine a time that I've let sympathy for a defendant play a -- and I -- probably, stating this truthfully, I need to say a part in the decision, but a significant part in the decision. Certainly, you feel sorry for some people, you know.
Q. But it doesn't affect your objectivity?
A. No, certainly not. I can't allow it to.
Q. In the area of judicial temperament, what's your approach, how do you assure litigants are treated fairly and with respect?
A. I think you've seen my judicial ratings and I think that
-- and I'm very proud of those. I think that I'm generally regarded as according dignity and respect for the lawyers, litigants, jurors. I frankly think that the most important attribute that any judge can have, above and beyond -- you have to obviously be -- have to have personal integrity and you have to have some level of intelligence, but the best thing, the best attribute you can have is a sense of humor, and I don't think you can take yourself too seriously. I mean you take -- you have to take the position seriously. I try to, through a combination of humor and civics lecture when I qualify a jury, the jury panel.

We'll have 150 people in Richland County. I tell them that they'll be some light hearted moments during the course of the qualification, during the course of the voir dire, perhaps during the course of the trial, but once their function begins that the matter is deadly serious to the litigants, it's the most important thing they have.

By that, I try to remind myself that I was once a lawyer and that it's not easy being a lawyer. Being a lawyer is one of the hardest things that there is, particularly a lawyer who litigates frequently. I try not to let anything get to me.

I guess abject stupidity gets to me more than anything, on the part of a lawyer, because I get infuriated if a lawyer is not appropriately representing his or her client's interests through not a well considered strategic approach, but just you didn't read the book. You know, if they don't know what Rule 24 is or Rule 43, and I don't like lawyers who aren't prepared.

But I don't -- you can't hold that against their clients except as may be necessary. Now, obviously, there are tenants of law that if a person selects a certain lawyer, you have to hold the lawyer's mistakes against the client sometimes.

But I guess dumb mistakes. And I don't mean mistakes of inexperience, because you get young lawyers in all the time. Mistakes of inexperience could be strategic judgements. I'm talking about the person that didn't read the book.
Q. On your Personal Data Questionnaire, you reported having an interest in a Hampton Office --
A. I do.
Q. Hampton Street office building and, as I understood it, that was an office building with your former law firm.
A. Uh-huh.
Q. It also indicated that apparently you must have made an attempt to divest your interest in that and there were serious financial consequences if you had done so.
A. Right.

And, as you also noticed on the Personal Data Questionnaire, I have just determined that I will permanently recuse myself from anything involving my old law firm. I don't -- they don't appear before me. Anything that they are involved in -- even if I get rid of the building that I own with them, I'm not going to hear any of their cases, and I'll tell you why. It's simply because I could not -- having practiced law with these people for as long as I did and having the kind of relationship that I had with them, there's no question in my mind that I would be biased in their favor, and I simply won't do it.

It does not create a problem in, thankfully, in Richland County owing to the fact that we have five judges within the Circuit and so although my law firm, my old law firm is all over the docket, they're fairly easy to duck. So that's what I do, I just don't hear their cases.
Q. Just a point of clarification. Your Personal Data Questionnaire reported that you're receiving fees through, I think, 1993 --
A. I did through 1993.
Q. And those were for services prior to your going on the bench?
A. Absolutely, yes.
Q. Well, I say point of clarification.
A. Yes, yes.
Q. You're a member of the American Inn of Court?
A. I was a charter member of the John Belton O'Niell Chapter of the American Inns of Court. I resigned from the organization, I think, shortly after I -- about a year after I got on the bench, frankly, because that membership roles are limited and I felt that somebody else should perhaps have an opportunity to serve on that body, and also because the dues was $500 a year and my old law firm paid them, and now I'm on a fixed income.
Q. You had a couple of lawyers to write you letters of recommendation to this Committee.
A. Uh-huh.

You will note that of the four people holding law degrees who wrote letters of recommendation for me, one no longer practices law, is a university official, a college official; one has now become a federal judge and was pending that appointment at the time. The other is in Anderson and was a college classmate and fraternity brother of mine. I wanted somebody who had known me for a number of years, yet who had never practiced before me and who likely never will practice before me. That person does not do appellate work and it's very unlikely that he would ever appear before me as a trial lawyer.

The other person is a person likewise who was involved in the judicial selection process at the time that I became a municipal judge. He was on the city council and I felt that it would be beneficial for this committee to have the benefit of that background. That lawyer, to my knowledge, I cannot say for an absolute fact, has never appeared before me, but I don't remember if he ever has.

I know that one of his partners at one time appeared before me in a criminal case, but as I put on my note, the addendum, these people are not likely to appear before me simply because of the nature of their practice.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
THE CHAIRMAN: Questions from the Members? Thank you, Judge.

END OF PRIOR TESTIMONY OF JUDGE PLEICONES.

THE CHAIRMAN: Were there any -- Judge Kinard, I got the feeling you wanted to say something when we were talking about --
JUDGE KINARD: Well, no, I don't want to impose on the committee. I recognize ya'll have very serious business to take up at 12:00. Everybody heard one of the complainants against me. It wouldn't take me long to reply. I'm in the middle of a malpractice case that's going to start back at 2:00, an expert witness, in and out. I don't know what this gentleman's complaint is because it wasn't specific. But if it's not lengthy since I just appeared last month, my total testimony wouldn't take but five or six minutes. That's all. Now, I'm perfectly willing to come at 2:00, obviously.

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