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Court refuses to remove reference to lawfirm's lack of trial experience

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JAMES SCOTT FARRIN, MICHAEL LEWIS, DAVID D. DAGGETT, MARKET MASTERS, Legal, a Resonance Company, Inc., Plaintiffs, v. CRESSIE H. THIGPEN, JR., President of the North Carolina State Bar, ANN REED, President-Elect of the North Carolina State Bar, E. FITZGERALD PARNELL, III, Vice-President of the North Carolina State Bar, ROBERT C. SINK, Past President of the North Carolina State Bar, STEVEN D. MICHAEL, CHARLES W. OGLETREE, MARK W. OWENS, JR., DAVID A. STOLLER, JOHN R. PARKER, JR., Councilors, ROBERT W. JOHNSON, CARY WHITAKER, WILLIAM H. "BUDDY" JONES, JR., HENRY C. BABB, B. GEOFFREY HULSE, JULIUS E. BANZET, III, GEORGE B. DANIEL, BARBARA B. WEYHER, JAMES K. DORSETT, III, HOWARD P. SATISKY, JOHN B. MCMILLAN, C. COLON WILLOUGHBY, JR., N. HUNTER WYCHE, JR., MARIA M. LYNCH, ROBERT A. SPENCE, JR., H. GERALD BEAVER, H. CLIFTON HESTER, N. JOANNE FOIL, ROBERT O. BELO, CHARLES E. DAVIS, LUNSFORD LONG, DANIEL B. DEAN, JOHN BRECKENRIDGE REGAN, III, KENNETH D. KNIGHT, CARROLL F. GARDNER, BETTY J. PEARCE, WILLIAM O. COOKE, JR., JAN H. SAMET, SAMUEL F. DAVIS, JR., RICHARD G. ROOSE, JOHN L. HOLSHOUSER, JR., FRED D. POISSON, SR., DUDLEY HUMPHREY, ROY G. HALL, JR., RICHARD V. BENNETT, GARY W. THOMAS, DENNIS R. JOYCE, GARRETT D. BAILEY, H. HOUSTON GROOME, JR., J. MICHAEL BOOE, NELSON M. CASSTEVENS, JR., MARYLAUREL E. WILKS, SAMUEL M. MILLETTE, CALVIN E. MURPHY, IRWIN W. "HANK" HANKINS, III, EDWARD T. HINSON, JR., JIM R. FUNDERBURK, DON M. PENDLETON, SARA DAVIS, SHARON ALEXANDER, ROBERT F. "BUD" SILER, AURELIA W. ERWIN, HERMON F. FOX, TERRY E. GARRISON, Members of the North Carolina State Bar Council, Defendants.

1:00CV01122

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

173 F. Supp. 2d 427; 2001 U.S. Dist. LEXIS 22913

August 16, 2001, Decided

August 16, 2001, Filed; August 17, 2001, Entered

PRIOR HISTORY: Farrin v. Thigpen, 173 F. Supp. 2d 427, 2001 U.S. Dist. LEXIS 11582 (M.D.N.C. 2001)

DISPOSITION: [**1] Plaintiff's motion to amend the findings of fact and conclusions of law granted in part and denied in part.

COUNSEL: For JAMES SCOTT FARRIN, MICHAEL LEWIS, DAVID D. DAGGETT, MARKET MASTERS, plaintiffs: HARRELL HUGH STEVENS, JR., EVERETT GASKINS HANCOCK & STEVENS, RALEIGH, NC.

For MICHAEL LEWIS, DAVID D. DAGGETT, plaintiffs: DAVID B. FREEDMAN, WHITE AND CRUMPLER, WINSTON-SALEM, NC.

For CRESSIE H. THIGPEN, JR., ANN REED, E. FITZGERALD PARNELL, III, ROBERT C. SINK, STEVEN D. MICHAEL, CHARLES W. OGLETREE, MARK W. OWENS, JR., DAVID A. STOLLER, JOHN R. PARKER, JR., ROBERT W. JOHNSON, CARY WHITAKER, WILLIAM H. "BUDDY" JONES, JR., HENRY C. BABB, B. GEOFFREY HULSE, JULIUS E. BANZET, III, GEORGE B. DANIEL, BARBARA B. WEYHER, JAMES K. DORSETT, III, HOWARD P. SATISKY, JOHN B. MCMILLAN, C. COLON WILLOUGHBY, JR., N. HUNTER WYCHE, JR., MARIA M. LYNCH, ROBERT A. SPENCE, JR., H. GERALD BEAVER, H. CLIFTON HESTER, N. JOANNE FOIL, ROBERT O. BELO, CHARLES E. DAVIS, LUNSFORD LONG, DANIEL B. DEAN, JOHN BRECKENRIDGE REGAN, III, KENNETH D. KNIGHT, CARROLL F. GARDNER, BETTY J. PEARCE, WILLIAM O. COOKE, JR., JAN H. SAMET, SAMUEL F. DAVIS, JR., RICHARD G. ROOSE, JOHN L. HOLSHOUSER, JR., FRED D. POISSON, [**2] SR., DUDLEY HUMPHREY, ROY G. HALL, JR., RICHARD V. BENNETT, GARY W. THOMAS, DENNIS R. JOYCE, GARRETT D. BAILEY, H. HOUSTON GROOME, JR., J. MICHAEL BOOE, NELSON M. CASSTEVENS, JR., MARYLAUREL E. WILKS, SAMUEL M. MILLETTE, CALVIN E. MURPHY, IRWIN W. "HANK" HANKINS, III, EDWARD T. HINSON, JR., JIM R. FUNDERBURK, DON M. PENDLETON, SARA DAVIS, SHARON ALEXANDER, ROBERT F. "BUD" SILER, AURELIA W. ERWIN, HERMON F. FOX, TERRY E. GARRISON, defendants: NORMA S. HARRELL, NORTH CAROLINA DEPT. OF JUSTICE, THOMAS F. MOFFITT, N.C. DEPARTMENT OF JUSTICE, SPECIAL DEPUTY ATTORNEY GENERAL, CAROLIN BAKEWELL, ALDERT ROOT EDMONSON, RALEIGH, NC.

For ALL DEFENDANTS, defendant: NORMA S. HARRELL, NORTH CAROLINA DEPT. OF JUSTICE, THOMAS F. MOFFITT, N.C. DEPARTMENT OF JUSTICE, SPECIAL DEPUTY ATTORNEY GENERAL, RALEIGH, NC.

JUDGES: William L. Osteen, Sr., United States District Judge.

OPINION BY: William L. Osteen, Sr.

OPINION

[*447] MEMORANDUM OPINION and ORDER

OSTEEN, District Judge

Plaintiff James Scott Farrin (Farrin) has moved the court to amend its findings of fact and conclusions of law as entered in support of the court's July 19, 2001, judgment by deleting footnote 13 on page 42. As discussed below, the court [**3] will amend footnote 13 to reflect the narrow tailoring of the question asked during a bench trial conducted April 16 through April 18, 2001. For the reasons that follow, however, the court will deny Plaintiff's request to delete footnote 13.

I. FACTUAL BACKGROUND

Plaintiffs Farrin and Michael Lewis (Lewis), David D. Daggett (Daggett), and Market Masters - Legal, a Resonance Company, Inc. (Market Masters) brought the underlying action to challenge on First Amendment grounds the North Carolina State Bar's decision that the "Strategy Session" ad run by Farrin and Lewis and Daggett was misleading and created unjustified expectations in violation of Rule 7.1 of the Revised Rules of Professional Conduct.

Footnote 13 of the court's July 19, 2001, decision states:

There was evidence that neither Farrin nor any attorney in his firm has ever tried a case, with the exception of sitting as second chair in one trial in which the opposing party prevailed. Given testimony from a witness for Plaintiffs that an insurance company would find it very important that a plaintiff's attorney had never tried a case when deciding on where to settle in the range, the court notes that it is particularly [**4] misleading for Farrin to use an ad suggesting that insurance companies are so intimidated by his reputation that they would change tactics. See In the In re Zang, 154 Ariz. 134, 741 P.2d 267, 275 (Ariz. [*448] 1987) (finding firm's ad implying that it was willing and able to try, and actually did try, personal injury cases misleading where no attorney at the firm had ever tried a personal injury case to a conclusion). However, as explained with regard to settlement rates, the ad would be misleading even if Farrin was well known for his trial advocacy.

Plaintiff contends that footnote 13 should be deleted because it is irrelevant to the court's judgment, as well as being "predicated on the Court's apparent misunderstanding or incomplete understanding of the underlying facts." (Mem. Supp. Mot. Amend at 1.) In addition, Plaintiff argues that the footnote is "highly defamatory of Mr. Farrin and the other attorneys affiliated with the law firm of James S. Farrin, P.C." (Id.) Moreover, he contends that the footnote is likely to mislead potential clients and other readers of the July 19, 2001, findings of fact and conclusions of law. Farrin offers his own affidavit [**5] in support of these contentions.

The testimony in dispute arises from Defendants' direct examination of Farrin. The relevant portion of the testimony follows:

Q During the period from 1990 through the time when you finished running the Strategy Session ad, how many personal injury trials had you personally tried?

A One.

Q And that was the case where you were the second chair, is that correct?

A Yes, it is.

Q And in that instance there was a defense verdict, is that correct?

A Yes.

Q In 1997 you formed your law firm, is that correct?

A I believe so.

Q How many lawyers are in your firm?

A Nine.

MR. STEVENS: Objection, Your Honor. With all due respect, the case that the Defendants are attempting to make is that the ad is inherently misleading.

As I perceive this line of questioning, they're attempting to prove another point, but perhaps hoping to, and that is that it is somehow misleading with respect to Mr. Farrin, but that's not their case. They have not pleaded that. They have not based their opinion on that.

And I'm happy to have him answer questions, but I don't see the relevance in this line of questioning in light of the posture that the defense is in here. [**6]

THE COURT: Well, as to all of the witnesses, some background is - has been allowed, but I do cut it off shortly, and I will, unless there is some other reason. So, I'm going to allow this question, but we're coming close to the end now.

THE WITNESS: Did you hear my answer?

MR. MOFFITT: No, I did not.

THE WITNESS: Nine attorneys.

THE COURT: Nine?

THE WITNESS: Nine.

BY MR. MOFFITT:

Q In the period of time since your law firm was formed until the end of that ad when the ad stopped running, not a single lawyer from your law firm tried a case under the trade name of The Law Offices of James Scott Farrin, isn't that correct? I believe so.

A I believe so.

THE COURT: When you say "I believe," are you really saying yes, or are you saying maybe, or what are you saying, I believe? [*449]

THE WITNESS: The answer is yes, if I understood the question, did the lawyers in the - presently in the firm were trying cases at that time, but not under the trade name James Scott Farrin, maybe with other firms. But if I understood the question correctly, the answer is yes.

THE COURT: Well, do you think you understood the question correctly?

THE WITNESS: I believe so, yes.

(Trial [**7] Tr., Vol. II, at 4-5.)

II. DISCUSSION

The court will deny Plaintiff's motion for a number of reasons. First, Farrin seeks to amend the evidence presented at trial, a matter that is not timely raised. If Plaintiff had objections to the record before the court, the proper time to object was during the bench trial. Plaintiff argues that the court misunderstood the inner workings of Farrin's law firm because Farrin was "afforded no opportunity at trial" to explain his role. (Mem. Supp. Mot. Amend at 5.) The record simply contradicts Plaintiff's contentions and, as discussed below, Plaintiff had ample opportunity to supplement the "paucity of the record" but did not do so. (Id.) Plaintiff cannot remain silent during trial and then supplement the trial evidence with an affidavit after judgment has been entered.

There were ways in which this matter could have been properly raised, none of which was done. Plaintiff's counsel had the opportunity to reiterate his objection or raise a continuing objection to Defendants' line of questioning after the court allowed Defendants to proceed, but he did neither. Nor is there anything in the record indicating that Farrin was prevented from [**8] explaining his answers more fully. Alternately, Plaintiff's counsel had the opportunity to elicit the information presented in Farrin's affidavit on cross examination, though he did not do so. Now Plaintiff contends that his counsel "perceived that the Court deemed this testimony to be non-germane, and thus did not revisit it on cross-examination." (Id. at 3.) The fact that the court allowed the questions after counsel's objection reflects the court's judgment that the questions were relevant. Nothing in the record suggests that the decision not to elicit further explanation on cross examination was based on anything other than Plaintiff's counsel's view of the matter. Regardless of counsel's reasoning, the information presented in Farrin's affidavit was not introduced at trial and cannot be introduced into evidence ex post facto.

Second, Defendants' questions were clearly relevant, given the evidence introduced by Plaintiffs both on direct and cross examination. Witnesses for Plaintiffs testified as to the reputation of Lewis and Daggett in the legal community, and Plaintiffs' counsel examined each witness as to whether an attorney's reputation was considered when deciding [**9] to settle. Further, Plaintiffs sought to introduce evidence of bad faith tactics employed by the insurance industry to support their contention that the "Strategy Session" ad accurately portrayed the industry. Hence, the accuracy and reputation of the attorneys advertised, as well as the ad's portrayal of the insurance industry, were made an issue by Plaintiffs and were an appropriate matter to be explored by Defendants. Though Defendants' case rose or fell on the question of whether the "Strategy Session" ad was inherently misleading, that does not mean that footnote 13 is irrelevant. The footnote simply notes that, in light of the evidence presented at trial, Farrin's lack of trial experience contradicts Plaintiffs' suggestion that the ad could not be misleading because the attorneys [*450] advertised were well known in the insurance industry. 1

1 Plaintiff also argues that Defendants' proposed findings of fact and conclusions of law "did not suggest that the court should or could make any findings based on this line of testimony." (Mem. Supp. Mot. Amend at 3.) Though the court certainly considers the parties' proposed findings of fact and conclusions of law, it draws its own conclusions as to both and is in no way limited by the parties' submissions. Moreover, the court in footnote 13 made no finding of fact. It simply noted that, given Plaintiffs' own evidence at trial, Farrin's lack of trial experience added another level of inaccuracy to the ad, though it was deceptive regardless.

[**10] Finally, Plaintiff's contention that footnote 13 impugns the attorneys of Farrin's law firm in their profession is not a reason to amend the evidence. The footnote is not defamatory simply because it points out the fact that no lawyer has tried a case under the trade name "The Law Offices of James Scott Farrin." 2 Whether or not it is information that would be well received by potential clients is not a matter to be considered by the court. While Plaintiff may find the fact to be potentially harmful to the law firm, it is nonetheless a fact that Farrin himself acknowledged with no explanation. Because it has direct bearing on the analysis conducted by the court, the footnote will remain, with the following amendment to reflect the narrow question asked by Defendants.

2 The footnote will be amended to clarify that fact.

III. CONCLUSION

Footnote 13 as stated in the court's July 19, 2001, findings of fact and conclusions of law is not as narrowly tailored as the question put forth by Defendants, in that [**11] it could be read to state that the other attorneys in Farrin's law firm have never tried a case. More precisely and accurately, they have not tried cases under the trade name of "The Law Offices of James Scott Farrin," the law firm advertised in the "Strategy Session." However, it remains that Farrin himself during his entire practice has participated in only one trial, which resulted in an adverse verdict.

For the reasons stated in the memorandum opinion filed contemporaneously herewith,

IT IS ORDERED AND ADJUDGED that Plaintiff's motion to amend the findings of fact and conclusions of law [52] is granted in part and denied in part.

IT IS FURTHER ORDERED that footnote 13 shall be amended to read as follows:

There was evidence that Farrin had never tried a case, with the exception of sitting as second chair in one trial in which the opposing party prevailed. In addition, there was evidence that no attorney from Farrin's law firm had tried a case under the trade name of "The Law Offices of James Scott Farrin." Given testimony from a witness for Plaintiffs that an insurance company would find it very important that a plaintiff's attorney had never tried a case when deciding [**12] on where to settle in the range, the court notes that it is particularly misleading for Farrin to use an ad suggesting that insurance companies are so intimidated by his reputation that they would change tactics. See In the In re Zang, 154 Ariz. 134, 741 P.2d 267, 275 (Ariz. 1987) (finding firm's ad implying that it was willing and able to try, and actually did try, personal injury cases misleading where no attorney at the firm had ever tried a personal injury case to a conclusion). However, as explained with regard to settlement rates, the ad would be misleading even if Farrin [*451] were well known for his trial advocacy.

IT IS FURTHER ORDERED that the Clerk of Court shall imprint upon the margin of the Findings of Fact and Conclusions of Law filed July 19, 2001, to denote the following:

These Findings of Fact and Conclusions of Law are amended and superseded by the Memorandum Opinion and Order filed August 16, 2001, in that footnote 13 only is modified.

This the 16th day of August 2001.

William L. Osteen, Sr.

United States District Judge