Category Archives: Whistleblowers Blog

An unattractive jury and a stirring tale of conflict, emotion, sex and violence are some of the essential ingredients for success in a trial, according to seasoned US trial lawyer Dick Harpootlian. He shares some tips with Reuben Guttman.

South Carolina has sandy beaches, Fort Sumter, where the shot that began the Civil War was fired, and the quaint port city of Charleston. Oh yes; it has one more thing: Dick Harpootlian. With an undergraduate degree from South Carolina’s Clemson University and a law degree from the University of South Carolina, the 64 year old trial lawyer has the trappings of a son of the south.

Yet, the truth is that Harpootlian is a minority in his own state; he is a socially liberal Democrat who has served off and on as Chairman of the State Democratic Party. As a student at Clemson University in the 1960s, he recruited Jane Fonda to speak after her visit to Vietnam. He also participated in Dr.Martin Luther King’s funeral procession in Atlanta in the summer of 1968.

After a stint as District Attorney for the state capital, Columbia, Harpootlian, who has been in private practice for the past 20 years, has become one of South Carolina’s most feared courtroom litigators and political strategists.

While Harpootlian is well known in South Carolina, it was Barack Obama who put him on the national map; some say the same could be said about Harpootlian helping put Obama where he is today. Back in early 2008, candidate Obama came into the South Carolina Primary needing to win after a loss to Hillary Clinton in New Hampshire. Harpootlian was essential in engineering Obama’s primary win that paved the way to a Democratic Party nomination.

Authors John Heilemann and Mark Halperin in their book Game Change, the story of Obama’s 2008 election victory, describe Harpootlian as “a media magnet, glib and hard edged, a perfect combination of down home grit and steely sophistication.”

With his post 2008 election national prominence, Harpootlian has been a regular commentator on Fox news and has made at least one appearance on the Colbert Report. Stephen Colbert is a South Carolina buddy. His appearances have been provocative and entertaining.

An hour with Harpootlian is a day of anecdotes, analogies, and humor. A walk across the Mall in Washington surrounded by massive buildings housing government agencies with Harpootlian prompts a running monologue about government waste and inefficiency.

Visit him in Columbia, South Carolina, where an antebellum mansion is his office, and you are greeted by a brass sculpture of three large monkeys – “see no evil, hear no evil, and speak no evil” – on a metal bench. “My wife wouldn’t let me bring them home,” says Harpootlian.

As a private practitioner Harpootlian has represented a cross section of South Carolina’s population taking on civil rights cases, death penalty defense cases, and some of the largest banks in the nation.

Among the many cases that Harpootlian has tried is the successful prosecution of “Pee Wee” Gaskins – the most notorious serial killer in South Carolina history. It took weeks for Harpootlian, District Attorney for Columbia at the time, to pick a jury because of Gaskins’ notoriety.

As for his tips on courtroom practice, Harpootlian shared the following in his own — at times provocative — words:

Tip #1: Pick a jury not based only on your client’s profile, but also yours. If the jury hates you they usually won’t like your client. This has caused me to gravitate towards unattractive people on juries. They don’t feel threatened by me and aren’t disdainful like attractive people.

Tip #2: Never suffer a misstatement of the facts by opposing counsel in opening statement. Since his or her back is towards you during this process, I call it the “kidney punch” objection. Most attorneys have a difficult time recovering from the objection, especially if it happens more than once. If they have a prepared opening they never seem to get back to it. Don’t let them frame the case based on lies.

Tip #3: Prior to trial I almost always only depose experts to get their opinion and the materials they used to formulate the opinion. In most of my cases, expert depositions take less than five minutes. Why educate them before trial? Save the good stuff for the jury.

Tip #4: Own the courtroom. One of my frequent opponents when I was the DA paid me the most eloquent compliment. She said, “Harpootlian is like a dog marking his territory in the courtroom. He pisses in every corner and invades your space as frequently as he can. It makes the opposing attorney anxious.” Anxiety is your friend.

Tip #5: Throw away the script. There is nothing more boring nor unproductive than to follow a script checking off the points you want to make to prove the elements of your case. The jury wants a narrative, a story; an entertaining yarn full of conflict, emotion, sex, violence, yelling weeping, etc. . . . you get the idea. That means you have to have a general idea of what you want but let the examination flow naturally. Set the witness up to confirm fact A and fact C then box them in to B. The jury will understand where you are going. Remember these are unattractive people who watch a lot of TV and read most of their evenings. They have lots of imagination.

A wide range of speakers with a wide range of views characterises the IBA. Reuben Guttman of Guttman, Buschner & Brooks PLLC reflects on the week that was.

BOSTON, MASS – From Associate Justice of the United States Supreme Court Stephen G. Breyer to Lord Phillips of Worth Matravers, there was no shortage of legal stars at last week’s 2013 International Bar Association convention. Panelists included Zachery Douglas of Oxford and George Berman of Columbia University, both world leaders in the field of international investment arbitration, and Harvard professor and former UN Secretary-General’s Special Representative on business and human rights, John Ruggie.

Ruggie made the point that with panels ranging from anti-corruption measures to corporate social responsibility and human trafficking, much of the 2013 International Bar Association convention is about what he calls “the externalities of globalization.” At a plenary question and answer session with questions posed by Chris Jochnick of Oxfam America in Washington, DC, Ruggie stressed the complexity of the problem, noting that “it is easier to produce theoretical solutions that impress yourself as opposed to practical solutions.”

Touching on the impact of multi-national corporations that manufacture through supply chains, Ruggie addressed the question of whether a global corporation can legitimately disclaim responsibility for human rights abuses at the lowest levels of the supply chain. “It does not make a difference how many layers you have,” said Ruggie, “if you caused the problem, you are responsible for it.” Ruggie added that “the idea that you have no responsibility for what goes on at the bottom [of the supply chain] is no longer acceptable.”

While educational opportunities, such as Ruggie’s discussion in the plenary session, are prevalent at the IBA 2013 convention, there is the potential to be subject to what Americans call an infomercial. For example, at a session on corporate social responsibility, an attorney for a large oil company, which has been the subject of both criminal and civil prosecution, read from a text extolling the social responsibility of his employer. While one panelist indicated that some corporations make a “liability calculus” in determining the risks posed by non-legal compliance, this oil industry representative denied such calculus is ever made.

Panelists and IBA members, of course, represent different nations, cultures, and economic constituencies. Opportunities to learn are ample but part of the learning is understanding that panelists and members arrive with their own agendas.

In 2014, the IBA Convention will be held in Tokyo, Japan.

In addition to his work with the UN, Ruggie recently published Just Business: Multinational Corporations and Human Rights (Norton 2013).

Lawyers need to be very careful they don’t become embroiled in money laundering, says Reuben Guttman of Guttman, Buschner & Brooks PLLC.

BOSTON, MASS — At the melting pot of nation and culture that is the 2013 International Bar Association Convention, participants at a panel on money laundering debated the obligation of lawyers to make reports of illegal conduct to regulators.

Stephen Revell of Freshfields in Singapore noted that the question of a lawyer’s obligation to disclose suspicious activity that could involve money laundering is a question for transactional lawyers and not criminal defense lawyers who are defending those accused of money laundering.

For the transactional lawyer, said Enide Perez, a Professor of Law at The Hague, there is a “risk of the lawyer becoming involved in the laundering.”

Under ethics rules covering most US jurisdictions, a lawyer is permitted to disclose the potential for unlawful conduct to regulators only after an effort has been made to address the problem internally within the organization. The policy behind the rule is to allow, in certain circumstances, disclosures necessary to prevent substantial injury to an organization. If, however, the lawyer’s services are being used in furtherance of the violation, the lawyer is allowed to disclose confidential information and may be required to withdraw from representing the organization.

Mauro Wolfe of U.S.-based Duane Morris agreed that as an international norm, lawyers should give their clients an opportunity to “purge corruption out of the transaction.” And Wolfe suggested that attorneys “should have a discussion with the client” to determine whether the suspicion is well founded.

While money laundering has varying definitions, its purpose is to hide the proceeds of crime. Panelists described how cross-border money laundering schemes involve the conversion of cash into big tickets assets – including jets and yachts – which can be sold and converted back to cash. “Once crooked money becomes an asset it gets lost” to investigators, noted Revell.

Thirty-four countries, including the United States and the United Kingdom, have been working together to create standards to promote effectively effective implementation of legal, regulatory, and operational measures to combat money laundering, terrorist financing, and other related threats to the international financial system through the Financial Action Task Force (FATF) for the past three decades. The standards created by this inter-governmental agency are used by more than 180 governments to combat money laundering and other financial crimes and were most recently updated in February 2012.

In addition to participating in the formulation of international standards for legal protections against money laundering though the FATF, Mouro noted that that US Department of Justice (DOJ) has treaties with foreign nations for the cooperation in investigating matters of money laundering. If the wrongful conduct touches the US, Mauro opined that “at least 20 US Attorney offices would be interested” in investigation.

And does a lawyer walk away from a client whose conduct may involve suspicious activity? “Sacking the client may only pass the problem to another lawyer,” opined Revell.

The IBA is all about the interface of legal systems, says our man at the 2013 extravaganza, Reuben Guttman of Guttman, Buschner & Brooks PLLC.

BOSTON, MASS — It is day three of the International Bar Association’s 2013 Convention and the halls of the Hynes Convention Center here are graced with lawyers from across the globe.

With the growth of a global economy, the common question among all attendees is how to interface the laws of different nations particularly where culture and language may not be susceptible to simple translation?

At a panel entitled “Enforcement by Regulators,” Richard Walker, counsel for Deutsche Bank, noted the rise in cooperation among foreign regulators. “Multi-jurisdictional investigations have a new meaning with Libor,” noted Walker, who explained that the US prosecution of Seimans for violations of the Foreign Corrupt Practices Act “was the beginning with local German prosecutors cooperating with US prosecutors.”

Panelists noted that attorney client privileges may vary from jurisdiction to jurisdiction presenting challenges to legal counsel involved in cross boarder investigations. Yet attorney client privileges are just the tip of the iceberg with language and cultural barriers presenting a thick layer of challenge for prosecutors involved in cross-border cooperation.

Others sessions on international investment arbitration shared the same common theme of the interface of law, culture and language. Creating fluid movement between legal systems is the challenge faced by IBA members.

But the IBA is not just about the procedural side of law. Questions about human trafficking, pollution and employment standards are topics of discourse here. While the subtle theme is promotion of human rights the driver is economics. Reliable legal systems that allow for enforce of rights provide confidence for investors.