Remembering TOM SMITH

 
Something came up a few months ago and I went down one of those internet rabbit holes… looking for one thing online which led to another and another which led to wonder about what ever happened to my former boss Tom Smith… I was very sad to find his obituary, one which was reposted today in the current Cincinnati Bar Association monthly magazine.
 
Tom’s obit reads very dryly- as most obviously do- he served in Korea, Captain in the National Guard, returned to go to UC law school – worked in private practice and served as an Assistant US Attorney here – well known and accomplished trial lawyer, especially in the area of white collar crime.
 
Tom was so much more – he was a trip- so much litigation experience wrapped up in a friendly, funny and very smart guy. He was constantly chiding me to write and edit and edit and edit and CUT OUT THE LEGALESE CRAP. He reminded me that we represented real people – that “The Law” wasn’t just a set of old books but the system that real people use to solve disputes. He also taught me, and reminded me, of the business side of a law practice. Unlike the court, where i could dig forever on an interesting issue, real lawyers in real firms had to get paid too! 🙂

 
The firm, Carroll, Bunke, Henkel, Haverkamp & Smith, was well known & respected in the heart of the west side – Everybody who drove up and down Glenway knew the big black plexiglass cube across from Our Lady of Lourdes. Tom was the litigation guru in the firm.
 
I was clerking for the 12th Appellate District in 1982-83. I was ready to leave, but the job market was very…very … tight. The Recession was in full swing. Interest rates were outrageous. I was looking for my next gig- my first real “law firm” job. I was living on the west side and familiar with the firm’s prominent placement. I was driving along on Glenway and just wandered in one day with my resume and talked to Dick Henkel. I was lucky. Turns out a lawyer had just told the firm he was leaving. I talked to folks and was hired as young associate.
 
The CBHH&S experience was fantastic for me- the perfect 1st Law Firm experience. All the folks were super to work for and learn from. I worked primarily with Tom, though.
On Day ONE of my tenure Tom said “Grab your briefcase we’re going to trial!” I ended up sitting through a trial with him in which a young couple had been presribed a suppository for their baby- the “Drug Palace” had given them an adult dose suppository which they had used for a few days before the baby started suffering some problems. Thankfully, the ill effects were treated and the baby ended up having no long term problems.

The case was defended by a well known trial lawyer – Eddie Utz. Mr. Utz was… how shall I say… “old school” – Loud [meaningless] objections – dumping a pile of papers on the floor during the key cross examination of the key witness for Drug Palace – making snide remarks following Tom’s objections [“if you’d gone to a REAL law school you’d know how stupid that is”]. During Jury Selection we decided to keep a couple of folks on the jury who the client liked, even though they worked in the insurance industry. The verdict came back 6-2 in our favor, but with a much lower dollar value than we’d asked for/hoped for. Sure enough the two against were the two insurance folks. We talked to them – they said “We wanted to give a lot MORE – these other jurors are idiots – so we refused to go along with the lower number!” HA… Lesson ONE in trial lawyering- you can’t judge a juror by their profession! Lesson TWO was ‘Watch out for Eddie Utz!” ha!
Tom let me play an active role in all sorts of big and small litigation over the next several years despite my relative and very real inexperience! I had “read” 100s of trial transcripts during my years with the appellate court, but I didn’t even know where the courthouse WAS when I started!
 
The biggest case we had was probably Russo v. City of Cincinnati. [Google it!] Folks of a certain age in Cincinnati will remember the case. A fellow who was residing at Rollman’s Psychiatric Institute walked away from a 2 hour pass. An APB was put out by police.The family found him back in his Clifton apartment some hours later. He refused to come out. Police broke the door down – he ended up being repeatedly Tasered and shot 22 times as well. By the time the whole thing played out every news crew had a camera there.
 
Tom knew the family and we filed the civil case against the City and the officers. I handled 40+ depositions and a considerable amount of the brief writing. We lost at the trial level as the District Court judge threw the case out on Summary Judgment. We appealed to the 6th Circuit. The stack of paper we filed was three feet high. When it came time for oral argument Tom surprisingly let me handle it. We were scheduled for 15 minutes but the argument went on for over an hour. The Cincinnati Enquirer’s court writer was there and wrote a half-page column about the case the next day. We eventually won a reversal and it settled. The case is cited in Taser textbooks as being one of the very first appellate decisions in which the word Taser is found.
 
Tom was also appointed Special Prosecutor in the mid-late 1990s for the purpose of investigating the Hamilton County Auditor’s office, then run by Joe Decourcy. This was a MASSIVE undertaking. There were rumors and allegations following the release of a report from the State Auditor that led to Tom’s appointment. Folks of a certain age will remember the infamous “FOJ” legend that was handwritten on certain documents which allegedly meant “Friend of Joe.”
Tom appointed me as Assistant Special Prosecutor and off we went. An entire floor of a building near the courthouse was leased – we had 3 private investigators on staff as well as other attorneys and paralegals and experts. We worked 16 hour days for a while, reviewing 10s of 1000s of pages of documents, real estate appraisals, deeds and more. Tom put me in charge of the grand jury most days. The papers were eventually covering both us and the complaints about how long it was taking and how expensive the case became.
 
The gig put us near the front page of the paper most days but Tom didn’t care about any of that. We had two reporters [Enquire and Post] camped in the office almost every day. Tom wasn’t in it for the politics or the local “fame.” In fact, I suspect that was one of the reasons he was chosen for the job – the case was one that could have had significant political undertones and the GOP judge and GOP prosecutor knew Tom would be tough, aggressive, but absolutely fair when investigating the GOP Auditor – and they knew Tom wouldn’t be making headlines just to see himself on camera but he also wouldn’t back down from anyone depending on where the facts took us.
Tom constantly pushed us to simply Do Our Jobs – dig up the facts – present the facts to the grand jury and let the chips fall where they may.
 
Eventually a 220-count indictment was handed down by the grand jury against the Auditor including multiple counts in 5 different areas. I still have a copy of that around here somewhere. Mr. DeCourcy plead guilty to 5 counts, one in each area, and the Dusty Rhodes era began in the Auditor’s office.  
Further, we discovered that the Auditor had decided [contrary to law]  to put any undeveloped land on the books at 50% of the sale price – thereby saving developers quite a bit on their real estate tax burden…but costing school districts quite a bit of tax dollars. This discovery alone more than paid for our investigation in just one year!
Tom Smith was so much more than a 100 word obituary. He provided me more trial lessons than I had a right to expect as someone who knew nothing about handling a client, digging up facts or trying a case.
 
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