A Case 131 Years in the Making

Defense attorney John T. Lay Jr. is no stranger to high-profile cases, having tried more than 100 to verdict. Among them are some of the state’s most significant legal malpractice, trust and estate, and class action cases. Unofficially, Lay also holds the title for one of the most novel cases: representing New York Times’-bestselling author Clive Cussler in a federal court case to determine in part who found the H.L. Hunley, a Civil War-era Confederate submarine that sank off the coast of Sullivan’s Island in 1864.

Cussler, who developed an interest in undersea exploration while writing his adventure novels, founded the National Underwater and Marine Agency (NUMA) and funded search teams for archaeological dives of significance, including searching for the Hunley, Lay says. 

“It took them several years,” says Lay, “but they finally located the Hunley and it was pulled up. … The remains of the Confederate soldiers that were in the submarine at the time were still there when they recovered it.” 

The NUMA team discovered the Hunley in May 1995, but due to the submarine’s age and fragility, it wasn’t raised and returned to port until August 2000. Lay recalls the feeling in Charleston when the Hunley was finally brought home. 

“It was wild,” he says. “Charleston shut down. They were bringing this thing into port for the first time in over a hundred years. All of these people were dressed up in Confederate uniforms. You had women in Southern belle—those big, elaborate, colorful—dresses. They lined up the bridge coming into Charleston.”

The Hunley wound up being preserved in the Warren Lasch Conservation Center in North Charleston. But soon after, a Charleston local claimed he, not Cussler’s NUMA team, found the Hunley. 

“It mattered, just as a historical figure, to be able to find it,” says Lay. “He sued Clive in part to get a declaration that he had found the Hunley and he was unsuccessful. We had to go through many, many depositions. I got to know a lot about that submarine.”

He also got to know a lot about history. “There were several times in the course of the last 50 years [before it was found in 1995] where people would claim that they thought they had found it or they snagged it with a shrimp net or something of that nature … so we had this big map made and had all of the coordinates identified that people had claimed over the years. The whole case was trying to look back, historically, at the people who had claimed to have possibly found it in the past, trying to historically figure out what happened that night,” says Lay. “Looking at those coordinates, they were the clues that led up to all of this and all that was part of the case. It’s like a history lesson. I loved digging into all of that because I was looking back 130 years.”

Lay also got to know Cussler during the two years of litigation. “A little gruff, but in a charming way,” Lay recalls. “He wanted to win the case because he knew that he was right and that his team did find this. But he had a wonderful perspective on it. He was not overly engrossed in it. He was just sort of bemused by the whole process, that it had gotten to litigation like that.

“Even during a crazy, half-day deposition that was taken of him, he never got upset,” Lay continues. “He was just a remarkably nice man and did a lot of good things for South Carolina and he had no ties to South Carolina at all. He was just interested in this submarine that he had heard about. … It was a significant historical artifact that needed to be brought in, it just needed to be discovered. South Carolina has done a lot with the history and the building of the museum and providing context for it. That’s all Clive. Clive got behind that. Clive really tried to do the right thing with all this. He was a remarkable man.”

It was a unique case, Lay says, but at the end of the day, the grind of litigation is the grind of litigation. “I’m taking depositions. I’m looking at historical documents. So it was not dissimilar to normal litigation in the way the case was put together,” he says.

And, in the end, it came down to the burden of proof. The other side had it, and were unsuccessful. “We had some of the facts on our side,” Lay says, “and we had the resources to prove it.”

Though the case brought a lot of press attention, Lay notes it pales in comparison to another high-profile case Lay worked on: Alex Murdaugh. For attorneys who are new to the publicity spotlight, Lay has some advice. “Just remember that, that’s ancillary. That’s not what you’re in it for,” he says. “What is it you’re trying to accomplish? Is this helping you or is this helping your client?”