When a Cemetery is Not a Cemetery

Q: I’m hearing a lot of background noise right now. Where are you?

A: Well, I’ve got a schizophrenic situation here. I went to Auburn undergrad and University of Georgia law school, and I’m driving to Athens to see those two schools play in football.

Q: You’ll be rooting for Auburn?

A: Yes indeed.

Q: So would I be starting on the wrong foot if I mentioned that, as football nicknames go, you can’t get much better than “Crimson Tide”?

A: Oh yes you can. It’s funny: some people, especially Alabama people, like to ask Auburn people, “Well, gosh, are you the War Eagles or are you the Tigers or are you the Plainsmen?” And I always say, “Well, if you’re the Crimson Tide, why is your mascot an elephant?” And they never have a real good answer for that.

Q: Speaking of names, yours sounds like you should be a cardinal somewhere.

A: That’s another interesting story. I grew up in a little town about 50 miles from Savannah: Statesboro, Georgia. And my great-great-grandfather and his two brothers came to this country from County Wexford, Ireland in the 1850s. At that time, in places like Savannah, the Irish were a dime a dozen. You couldn’t get work, pretty much, if you were Irish. There were signs posted at some businesses: “Irish need not apply.” And so a lot of those Irish immigrants moved out into the country. And then they wound up marrying Baptist or Methodist, Presbyterian women and in the words of a friend of mine in Savannah, “They lost the faith.” So I am actually a Baptist, named Patrick Timothy O’Connor. But once a year, on Saint Patrick’s Day, I’m a king.

Q: What’s the brunt of your practice these days?

A: I would say 60 percent of what I do is defense civil litigation, and of that 60 percent, half of it is representing cities, counties and their employees and elected officials in various types of cases—mainly civil rights Section 1983 cases. But it could be anything from an arrest case to a zoning case. I probably have 50 or 60 open files for cities and counties.

The other half of my defense work is legal malpractice defense and business litigation. I do some product liability defense, mainly for a company that makes school buses, Blue Bird Body Company. Then I do a few plaintiff’s cases. We don’t sue lawyers, we don’t sue doctors, we don’t sue cities and counties, because we defend all the above.

And I would say about 15 to 20 percent of what I do is handle mediations and arbitrations.

Q: The other day, I mentioned to another Savannah attorney that I was going to interview you, and he suggested I ask you this: “Have you seen any difference in the negotiations of insurance companies over the last five years?”

A: He’s probably thinking about my work as a mediator. I’m not what you would call an insurance defense lawyer. But I do see, in the mediation practice, the negotiating tactics of both plaintiff’s and defense lawyers, and insurance companies and adjusters. Here’s what I’ve concluded.

Parties are much more apt to go to mediation now than they were even 10 years ago. There was a time when the lawyers, or the lawyer and an insurance adjuster, just negotiated back and forth and got to a settlement. Now it seems that all cases that have any significant damages at stake go to mediation. So insurers are more willing to negotiate through mediation.

When they get there … most insurers like to be deliberate about their negotiation tactics. Very seldom will you see an insurance defendant who is at a mediation table cutting to the chase. It usually takes a number of caucuses back and forth to try to get to settlement. Every now and then that becomes frustrating to me, as the mediator, because you can usually predict, fairly accurately, early in the mediation, approximately where the case will settle. Yet you have to go through this process to get there that may take anywhere from four to multiple hours. I was in one Tuesday night until 9 that started at 10 a.m. We got it settled, but it took 11 hours to do it.

Q: And did you see the resolution early?

A: I could pretty much tell where the dollars were going to come down. The problem in that one, and I see this fairly often, there are multiple defendants with different insurers and that complicates the negotiation process immensely. Because all of a sudden instead of just negotiating between the plaintiffs and the defendant, you’re negotiating three or more ways. The insurers don’t want to be outdone. And so you’ve got that additional layer of negotiation that has to be resolved.

Q: How do you get past that additional layer?

A: You have to be persistent. You really do. You have to continue to hammer the point. You have to press and press and press to get the insurance adjuster or defense lawyer—or whoever’s calling the shots—off of [certain] thought processes.

Q: What do you like about being a mediator?

A: Well, first, I really like going to court to try cases. But there are certain parts of mediation, that I think suit my personality and my experience—keeping in mind that I’ve done defense work and plaintiff’s work over the years. It’s challenging and frankly it doesn’t require much preparation. In a lot of mediations, I don’t even get pre-mediation materials. So it’s like coming in and having to think on my feet and help people find a way to resolve a problem by reacting to the facts, and the issues, and the personalities, and the dynamics of settlement. You’re engaged throughout the mediation.

Q: That “thinking on your feet” aspect sounds like being a trial lawyer, too.

A: It’s very much like being a litigator in the courtroom or a judge. Although, you’re not a judge. You don’t get to force anybody to do anything. You are a facilitator, a helper, and different cases require different methodologies. Every now and then you’ll get one where the lawyers really want to know your opinion about the range of jury verdicts in a case. Sometimes they simply want you to be a message carrier, and you have to react and use your discretion to either step back and let the mediation take its course or push the parties more aggressively toward settlement.

The other really good thing about mediation is this, as I told some lawyers in a mediation this week: “If this case doesn’t settle, tomorrow I don’t have to worry; but you lawyers do, because now you’ve got to prepare for a trial.” As the mediator, you never lose sleep over a mediation.

Q: Never?

A: Well, seldom. I’ve had a couple over the years where, you know, the facts of the case were such that your emotions get involved, but you obviously try to keep that out. But for the most part, when you’re done with a mediation you’re done with the case. I do check up on cases that do not quite get to settlement, but where you, as a mediator, think it could have. I’ll follow up a week or two weeks or even a month down the line with the lawyers in an effort to resurrect the mediation and try to get them to settlement. But other than that, once the mediation is over, whether it’s settled or not, you close the file and move on to the next one.

Q: Your work representing cities and counties: How did this come about?

A: When I came out of law school in 1981, I went to work in Savannah for a firm called Friedman, Haslam and Weiner. There was a lawyer in that firm by the name of Bill Shearouse, who was an assistant city attorney for the city of Savannah. His primary practice area was real estate and transactional, and he began to give me some of the city cases that were assigned to him. I liked it. City work lends itself to summary judgment motions. It’s almost like putting together a puzzle: You figure out where the weak points are in your opponent’s case and then you construct the case around that in an effort to get the thing dismissed.

About the mid-’80s, I had two cases that really defined my career. After about four years of practice, I came home one day and told my wife, “You know, I’m not sure I want to do this anymore.” But then I had a case. The plaintiff was a man named Otis Parker. Mr. Parker had been wounded by two police officers on a downtown Savannah street. His wife was attempting to retrieve some money from an ATM machine. These undercover police officers observed the man standing by a car with a lady next to an ATM machine nearby and decided to approach because they thought the man might be planning to mug the lady. Well, unbeknownst to them, Mr. Parker did not like his wife getting money out of an ATM machine—this was 1984 when they were just coming into use—and he was standing guard with the trunk popped open, with a rifle in the trunk, just in case someone came along. So these two undercover officers approached, he pulled the rifle out, they wound up pulling off, as I recall, 16 rounds. Hit him three times. He survived, fortunately. That led to a major lawsuit.

I was the lawyer that represented the two police officers in that case. There were over 100 depositions taken and the case went to trial. And I told my wife about midway through that case, “If I can get through this case, you know, I might change my mind about practicing law.” On the third day of trial, the plaintiff’s lawyer violated a lenity rule that the federal judge had made and the case was declared a mistrial. Several months later, the plaintiffs settled with the city for a fraction of what they were asking. My two police officers continued to work, did not lose their jobs and were essentially exonerated. So that was one case that got me over the hump.

Q: And the second case?

A: The other case had to do with an appeal involving the very famous Bonaventure Cemetery in Savannah. If you’re familiar with the book Midnight in the Garden of Good and Evil, it’s the cemetery where the little bird girl was buried and where the voodoo lady went out and did her spells and all that stuff. This case happened before that book came out. It was a case involving a tort you very seldom hear of, called “interference with a burial.”

The patriarch of a Florida family, who was born and raised in Savannah, passed away, and the family decided to have his remains interred at the Bonaventure Cemetery. It turned out that they had scheduled [the service] at 4 or 4:30 in the afternoon, and they were advised that if the service went past 5 they would have to pay overtime for the city’s workers—and the city did not accept checks. Well, it went past 5, and the family claimed that the city workers were rude—throwing shovels around during the service—angry because they had to stay overtime. So they filed a suit for interference with a burial.

I looked at the law and there was only one reported case in Georgia having to do with interference with a burial. It involved Oakland Cemetery in Atlanta, which is where a number of famous people are buried, and the court had said that the operation of a cemetery in Georgia is what’s called a ministerial function. If a city is engaged in a ministerial function it does not have immunity. If the city is engaged in what’s called a governmental function, it does have immunity.

Well, I knew that there were cases out there that said that the operation of a park by a city is a governmental function for which the city would have immunity. So I came up with this argument that Bonaventure Cemetery was more like a park than a cemetery because every day tour buses drove through. Very famous people are buried there, like Button Gwinnett, Johnny Mercer and several former governors of Georgia. It’s right on the Wilmington River and there’s a bluff where people go on Saturdays and Sunday afternoons and have picnics and throw Frisbees. That case got all the way to the Georgia Supreme Court, who agreed with that argument. So there’s a case out there that says the Bonaventure Cemetery in Savannah is more like a park than a cemetery and therefore the city of Savannah has immunity from claims such as interference with a burial that arise in that cemetery.

The one judge who dissented was a guy named George T. Smith. George T. Smith is the only lawyer in Georgia who has ever served in all three branches of government. He was the lieutenant governor of Georgia, he served in the state Legislature and he was on the Georgia Supreme Court. George T. Smith wrote a dissent—and you can Google this case, it’s called Radford v. Mayor and Aldermen of the City of Savannah—and it starts out this way: “A cemetery is a cemetery is a cemetery, and a park is a park is a park, and never the two shall meet—except in this Court.” Then he goes off for 10 pages excoriating the court for making that decision. When that happened, I was just fired up as you have ever, like a kid in a candy shop, because on my own I had come up with this theory that essentially created law in Georgia.

Q: You were judge pro tem for a period during this time. Did you learn anything as a judge that you carried with you into your practice?

A: Yes. You get to observe what good lawyers do, what average lawyers do, and what not-so-good lawyers do. And that helps make you a better lawyer.

Q: Such as?

A: Preparation. The lawyers who do the best job are the ones who are most prepared.

Q: What drew you to the law?

A: My dad and granddad both graduated from Georgia Tech. When you grow up in small town South Georgia and you’re a Georgia Tech fan, which I was because of them, you were the butt of every joke of the Georgia Bulldog kids. So I had decided I wasn’t going to Georgia. Well, I had an uncle who had gone to Auburn who was a veterinarian. I had another uncle who had gone to Duke University who was a judge. I wanted to either be a veterinarian or a medical doctor and so naturally I went to the school where my uncle who was a veterinarian had gone, instead of Duke, where the lawyer, later judge, had gone.

After about a year and a half of calculus and chemistry and physics, it was clear to me I was not going to med school or vet school. So I re-evaluated. My strengths have always been writing and speaking, so I switched to journalism, with minors in political science and English, and basically made A’s from that point forward, then went to law school. It turns out that it was a very good decision for me.

A lot of kids go to college and they don’t know what they want to do. You’ve got to hopefully find where your aptitudes are. I was able to do that. I have really enjoyed practicing law all these years. It’s been good to me and my family.

This interview has been edited and condensed.