The Three Lessons of Edward Tolley
The prominent Athens trial lawyer talks about what he’d do to change the justice system
Published in 2016 Georgia Super Lawyers magazine
on February 19, 2016
Updated on March 11, 2016
Q: You’ve been away from Athens for a while. Were you trying a case?
A: I’m sorry I’ve been so hard to get in touch with. In the past 24 months, I’ve tried four civil cases and six federal trials: one of them was 35 days, two of them were three weeks, one of them was a week. It just happened that way. So when you’re in trial, you’re in trial, and it’s hard for people to get in touch. So I do apologize.
Q: You do both criminal and civil.
A: They both have their benefits and detriments. I suppose the biggest difference in dealing with criminal cases is that you have someone’s life in your hands.
Q: Do you prefer that kind of pressure?
A: I’ve tried 17 death penalty cases. When you’re doing that kind of work, obviously the sense of responsibility is quite heightened. But for the most part, I don’t really prefer one over the other.
Q: Your cases are across the spectrum of the law. How do you come up to speed on areas that are not as familiar to you?
A: I limit myself to subject matters that I feel confident in. For example, I don’t do trust and estates litigation because I don’t know enough about trust and estates. I do mostly business litigation, and if it involves an issue that I’m not personally familiar with, then we will do the research and get up to speed. If we can’t do that, we’ll bring in a consulting attorney or expert to help us.
I’ve learned over the years that most cases can be reduced to a more simplified approach because that’s the best way to present it to a jury. When you do that, and you focus on what the true issues are, oftentimes you can narrow down the range of what you don’t know to what you need to know in order to be effective.
Q: You’re a well-known attorney, so you can’t take every case that comes to you. How do you do triage?
A: The simplest criteria is that I’ve been in business over 40 years and, because of that, I know many, many people. Oftentimes they’ll bring me a family problem or a business problem and there’s a relationship there already, and I’ll typically represent them. Then there are cases that are outside the realm of my expertise or that, for one reason or another, I am not interested in accepting. It’s not always about money. Sometimes I don’t feel [after the interview with the client] that we were a good fit. Or it may be a client who wants to file a lawsuit that’s really about being vexatious instead of actually accomplishing a goal. I usually steer away from those cases. But for the most part, if the case is interesting and the client is able to pay, we’ll look at it and determine whether or not we are a good fit with the client.
Q: Who’s we? The other partners at Cook, Noell, Tolley and Bates?
A: My group. I have a paralegal that’s been with me 35 years. I have an associate that’s very bright that’s been with me six. We usually keep two really bright University of Georgia law clerks. In my firm, we really operate in teams and our teams are intersectional. We tend to cross over to help one another. So when I say we, that’s what I’m talking about.
Q: Do you tend to remember the cases you win or the cases you lose?
A: One of my old friends, Duross Fitzpatrick, who was a federal judge in the middle district, once said, “You like to remember that one, don’t you?” Those were the big successes. Jim Donnan’s case, the one I tried last year, is perhaps the most recent example of a euphoric win.
But there are certainly those dramatic losses that stick in my mind. The most obvious is probably United States v. Walter Leroy Moody, who was charged with and convicted of killing a federal judge in Birmingham, Alabama, and a prominent lawyer in Savannah, Georgia, among many other crimes.
From those types of cases, you learn, first of all, an awful lot about the dark side of humanity and secondly about various individuals’ personality disorders and how they got to where they are. Oftentimes it’s a novel area of the law or it’s an area of the law that requires you to push. In this case I just described, it went to the United States Supreme Court four times. Finally, you oftentimes learn a new subject matter or you learn about some new technology. I just tried a federal murder case in Savannah in February, and when we got through with the trial, the trial judge commented that if there was ever any doubt that big brother is watching us, that doubt has been resolved because the case involved the amazing ability of the FBI to track Americans no matter where they are and no matter what they’re doing.
Q: In the Walter Moody case, did you represent him just in Georgia or also in Alabama?
A: I represented him in two Georgia cases, which were both federal. I did not represent him in Alabama. He was initially represented by a very good Alabama lawyer, but at the trial he chose to represent himself and received the death penalty from a state jury in Alabama. He’s still on death row.
Q: This was a man accused of killing both a judge and a civil rights attorney. What was the reaction from the legal community when you were representing him?
A: From some people it was, “Thank God the judge didn’t call me.” But for the most part, lawyers are semi-intelligent people. They understand the obligations and duties of a lawyer. I really didn’t have any blowback from anyone, including the federal judges, because everybody understood that it was a case that had to be tried. Those are cases that you do. Your brother and sister lawyers, and your brother and sister judges, they understand that.
Q: What about civilians?
A: The uninformed civilian always has the same question: “How can you represent somebody that’s guilty?” I answer that question depending on how I feel that day.
Q: What’s the good-mood answer and what’s the bad-mood answer?
A: The bad-mood answer may be as short as, “That’s what I do.” The good-mood answer is, “Well, you understand that we are an adversary system, and the Constitution requires a vigorous defense and a vigorous prosecution, and that’s how we ensure that an innocent person is not convicted.” That’s the long answer I give at cocktail parties.
Q: How did you get into the law in the first place?
A: I was a soldier. I went to the University of Georgia undergrad and I went in the U.S. Army. I came back and started on a master’s degree in business and took the law school entrance exam almost on a lark, and did quite well on it. A number of people at the Georgia Law School were friends that I had in college. I just decided to try it. It turns out I liked it.
Q: You seem to have a predilection for the University of Georgia.
A: I have three degrees from the University of Georgia, so it’s a fair assessment. I married a woman who has four degrees from the University of Georgia. We like to joke that we have more degrees together than a thermometer. But I do love the University of Georgia. I’ve been privileged to handle cases with them and for them on a number of occasions. I got a great education there. My son graduated from there as well.
Q: What do you remember about your first case?
A: I had been practicing law two weeks. I got a phone call from the clerk in the Middle District of Georgia, Macon office, advising me that Judge Wilbur Owens, who was the chief federal judge, had appointed me to a bank robbery trial. I thought I knew evidence and I thought I knew procedure, but I’d never tried a case before. The case didn’t turn out so well because the fellow did rob the bank and they had all the evidence they could possibly need. They threw me in the water and I didn’t drown. From there on, it was one case after the other, each building on the last one. And, ironically, Judge Owens [was the one who] appointed me to represent Walter Leroy Moody.
Q: If you could change one thing about the criminal justice system, what would it be?
A: It would be to bring in better-informed jurors. The longer I stay in this business, the more I realize how uninformed our jury pools are. They apparently don’t teach civics, or civic responsibility, in high schools anymore. In fact, I know they don’t. They try to cram a little bit of civics into a history course. But people come in so ill-informed about the role of a jury and why a jury is important. The result of that is that people who are entitled to a fair trial—or in a civil context, to an informed trial—don’t get either. That’s very disturbing to me.
There are a lot of associations doing all they can to educate jurors. I know in Athens, Georgia, my firm has often hosted the Citizens Court, or the Citizens Law School, which is free to the public.
Q: Any examples of ill-informed jurors in your cases? Was this during voir dire and you were able to remove them?
A: You try to educate during voir dire. But in superior court and the state courts of Georgia it’s easier to educate people during voir dire than it is in federal court, where typically the judge does a voir dire, and it’s very limited, very fast, and you don’t really get a good sense of the jurors. And they don’t really get a good sense of why they’re there. I think that a good voir dire is essential before you ask the jurors to make decisions in a case.
What I’ve seen more recently is the phenomena of jurors simply being unable to make a decision. They don’t know enough about the system. They don’t have enough confidence in their abilities to handle a question or an issue. You spend time trying a case and they simply are unable to reach a decision. A criminal case, sometimes, that’s a hallelujah moment. But it’s certainly not in a civil case, where you spend a lot of time and money getting a case ready and what you get out of it is a confused juror or juries and no decision, which is your worst nightmare.
Q: Did you have a mentor starting out?
A: I had three people that I thought gave me good advice. The first was a lawyer named Nick Chilivis, who was a very prominent lawyer in Athens; he has a law firm in Buckhead now. Occasionally he would slip in to watch me try a case, and when there would be a break he might make a suggestion to me, which I always found helpful. I did work in Atlanta with a lawyer named Joe Salem, who’s deceased, and I certainly learned a lot from him. Finally, my own partner, Jay Cook, who’s in his 70s now, tried a lot of cases with me and made a lot of suggestions that helped me along the way.
At some point, you have to establish your own identity. I tell all young lawyers that you can’t really copy somebody else’s style, but you can learn from other people. As you learn, you eventually develop your own courtroom identity.
Q: Any pieces of advice they gave that stand out?
A: They all had some of the same advice.
Number one, don’t let the judges rush you when you’re trying a case. It’s your case. It’s your shot at it. Take your time. Present your case well.
Number two, it’s better to be a good listener than a good talker. Either in trial preparation or during the trial itself, pay attention to what people are saying to you. Really hear and understand what they are saying.
Third, in the trial arena, the law is certainly important, but the facts are the most important thing in either a civil or criminal case. The facts are going to win your case or lose your case in most instances.
Those are, I think, the three biggest things that I learned. This advice was uniform and universal from these lawyers and other good lawyers I’ve known over the years.
Q: It’s interesting you mentioned Jay Cook, since we contacted him for suggestions for what to ask you. He thought we should ask you how many times you’ve been mistaken for Omar Sharif.
A: [Laughs] I will say this. I was mistaken a lot more often in my younger days than I am today.
Q: He also thought we should ask you about your nonexistent golf game.
A: Well, I consider myself a good athlete but I struggle with golf. My son is an outstanding golfer. I don’t know where he got the gene from. And I took up golf simply so that I could spend time walking with my teenage son over many, many golf courses and many, many miles. I love the game for that reason and that reason alone. It’s not because I’m a good golfer. I’m a terrible golfer.
Q: Anything you’d like to talk about that I haven’t asked?
A: Not really. The trials I enjoy the most are where there’s a very good lawyer on the other side of the case, both of us are prepared and we do our best, and however it comes out is how it comes out.
This interview was edited and condensed.