A Conversation with Chief Justice Jean Toal

LowcountryBizSC
How has the South Carolina Bar changed in terms of diversity over your forty plus year career?

Jean Toal:
There’s a story that I like to tell about how much things have changed over these past decades.  When I graduated from law school in 1968, there were two Bars: the mandatory licensing Bar and a social Bar that was segregated. In the 1950’s, former Chief Justice Ernest Finney, one of my dearest friends and my predecessor, supplemented his income as a lawyer by working as a waiter at the Ocean Forest Hotel in Myrtle Beach.  When the social Bar held its annual convention there, he was allowed to serve as a waiter; but as a black man, he was unable to join the convention. Contemplate that for a moment.

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When did the two Bar system change?

Jean Toal:
The 1954 U.S. Supreme Court decision, Brown vs. Board of Education (reversing the prior Plessy vs. Ferguson) was the case that kicked off the civil rights movement. Previous decisions dealt with graduate school, but none had made it to the U.S. Supreme Court.  Brown dealt with primary and secondary education and paved the way for other decisions that incorporated integration of transportation and accommodation services. Even though racial segregation had been a legal no-no for some time, it was still prevalent in the South in the late 1960’s.  

The 1964 Civil Rights Act was Lyndon B. Johnson’s tribute to the fallen John F. Kennedy, and eventually led to the Voting Rights Act of 1967.  That bill began the final move towards desegregation in the South.  

When my husband and I graduated from law school, we approached the leadership of the Bar and told them that we would campaign amongst our classmates to make sure that no one would join the social Bar if it was not going to be open to all people, including our classmate, I.S. Leevy Johnson. Maybe change had already been on the thoughts of the leadership, because shortly after we graduated, the social Bar became open to all members. Soon after that, the two Bars merged.  

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You became a lawyer when there were not many women in the practice.  

Jean Toal:
When I graduated, women were just beginning to gain acceptance in the profession. The firm where I first worked, Haynsworth, Perry, Bryant, Marion and Johnstone (now Haynsworth Sinkler Boyd) had a long tradition of hiring women lawyers.  The Perry in that name referred to James Perry, a woman, who graduated from law school in California in 1918 and who, upon her return to South Carolina, became the first woman admitted to the state Bar. Doing wills and trust work, she became the paradigm of a corporate lawyer.  

In 1968, there were only ten women active in the practice of law in the entire state of South Carolina, a minuscule portion of the 4,300 total lawyers.  South Carolina had never ratified the 19th Amendment of the Constitution, so women were allowed to vote and serve on federal juries, but not state juries. Black and white men could serve on state juries; but neither black nor white women could serve on juries.   

When the 19th Amendment was finally ratified, it took a couple of years, but eventually women started working their way through the jury pools and onto juries. In an ironic twist of fate, as most exemptions to jury service were job related and women generally did not have jobs at the time, male lawyers often found themselves arguing their cases in front of predominantly female juries. As were the norms of the day, the male lawyers tended to use terms that in today’s parlance might be considered condescending or even sexist.  The women jurors might not have said anything in the courtroom, but in the jury room it was whole different story!

The women jurors were not kind to the Haynsworth firm.  After a few disappointing decisions in the courts, the senior partner of the firm called me in one day from my usual duty of toiling in the libraries preparing briefs and said they needed a woman trial lawyer.  That was my rather inauspicious start of a twenty year practice, primarily in litigation.

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Why did you decide to go into law?

Jean Toal:
Two main influences in my life caused me to seriously look at pursuing a law degree.  

The first was my sensitivity to black/white issues.  When I was in high school, there was a major demonstration in Columbia that resulted in the arrest of over a hundred people. A month later when the trial occurred in the Richland County court house, I snuck out of Dreher High School to watch the trial from the bleachers.  There were 108 defendants in the trial, all black, who were being defended by a black lawyer named Matthew Perry.  I remember being so impressed with his wonderful legal points and how he handled himself in the midst of a hostile environment. That court case stuck with me.  The decision, Edwards vs. South Carolina, made it all the way to the U.S. Supreme court and became the premier case in establishing the 1st Amendment rights of demonstrators.   

The second was a conversation that I had with a judge my father knew when I came back to Columbia for Thanksgiving during my senior year. I attended Agnes Scott College, an all-women’s college in Georgia, and planned to pursue a graduate degree in philosophy at the University of Michigan.  I wanted to be a college professor. This judge convinced me to consider applying to law school.  To test the waters, I took a special course in constitutional law at Emory College in Atlanta. I loved it so much that I changed career paths.  When I told my guidance counselor about my decision, she tried to talk me out of it saying that it was a profession that was not open to women.  Thank God, I didn’t listen to her!

LowcountryBizSC
In the 1970’s, you were a member of the House of Representatives.  Talk about your time in the House and why you decided to go into politics?

Jean Toal:
Politics was second nature to me.  I had been active in issues such as voter registration and political and civil rights issues.  I was involved with Fritz Hollings in his famous campaign for the U.S. Senate seat versus Bob Russell.  As only kids in their 20’s can, we had grandiose discussions about the future: the kind of world we wanted to live in, the kind of leadership we wanted.  The Vietnam War also honed our classmates’ thinking to what was important in life.  Many of our colleagues had either served in the U.S. Army or their service was on deferment.  

One day, my friends convinced me to run. I won a seat in the House in 1974 and served for thirteen years.

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When you served in the 1970’s, 40% of the House of Representatives were lawyers; today it is less than 10%.  Why is that?  

Jean Toal:
At the time, law school was a hot bed of political activity, but that is not so much the case now. Serving in the General Assembly is no longer viewed as a stepping stone to more business for a lawyer.  The law profession is so competitive these days that many lawyers don’t feel as though they can afford the time off from their legal practice to serve in the General Assembly.  Also, the divisive, mean-spirited nature of politics these days has led to an anti-lawyer trend.  

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Compare the politics of that era to today.

Jean Toal:
My rookie year in the House, 1974, was the first time that South Carolina had moved to single member districts for the House of Representatives.  Even the Senate was not in single member districts at the time. Out of a total of 124 seats, we had 52 new members that year. (Today, incumbents mostly win re-election; therefore, change is incremental, at best).  Most of the new members were either women or black, and most of the sitting members were white males.So to say there was a new look to the House would be a bit of an understatement.  The normal rule where you had to spend a few years in the House before you served on committees did not apply.  I was on the Judiciary Committee in my first year.  

Today, it is much more partisan. The House was dominant Democrat at the time, but both sides had a seat at the table for all major decisions. We differed on a lot of things in our rookie class, but we rallied behind the idea of modernizing the House processes: limiting filibuster and streamlining the procedures so that more voices could be heard.  

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When did you start at the Supreme Court?

Jean Toal:
After my time in the House, I moved directly to a judgeship at the Supreme Court. South Carolina and Virginia are the only two states in the union where the legislature elects all statewide judges, including the Supreme Court.  I was approached by friends to put my name forward.  I set my goal to either move directly to the Supreme Court or to remain in private practice. I was elected to the Supreme Court in 1988.  I loved the practice of law, loved doing trial and appellate work, but I love this job equally.  

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What is your job description as Chief Justice?

Jean Toal:
South Carolina has a strong Chief Justice system.  As one of five judges on the highest court in the state, I take my full and equal share of cases. As CEO of the court system, I am also responsible for the budget and court administration (assignment of judges, court reporters and law clerks, etc.).  60% of my time is spent as a judge; 40% as CEO.  It can be a somewhat daunting job because of all of the administrative components.   

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What are you most proud of on the CEO side?

Jean Toal:
Using cloud computing to modernize the court system will probably be my most enduring legacy. The core of my administration has been to improve the efficiency of the court system through the South Carolina Judicial Automation Project.  I recognized early on that the courts were running on an antiquated and non-standardized system and that we needed to automate the processes of the entire state court system. I also knew that big, expensive ERP systems such as Oracle were simply not possible, given our budget constraints.  I had been attending court automation conferences and decided that we needed to explore a new, cheaper approach.  Though it was not a generally accepted practice at the time, we decided to develop our own programs and make these available to all parties through the internet.

I hired Joan Assey,whose expertise was IT in education ,as our CIO and together we went to Washington to pitch Senator Fritz Hollings on our idea.  Hollings was intrigued but told us that if we were going to receive any federal funding, we needed to prove that our system had a clear benefit for all of South Carolina, particularly rural South Carolina.

We started from the ground up, placing our internet based system in the small magistrate’s offices in the rural areas of the state.  We faced many roadblocks along the way, such as people who told us that nobody in rural South Carolina would ever have high speed internet. We are now 89% deployed, and our statewide online case management system has become a model for the rest of the country.  It’s been transformative for rural South Carolina, and the whole thing has been implemented with federal grant money.  By the end of next year, we will be 100% deployed.  People say it’s a miracle.
 
In the future, we hope to automate the two appellate court systems.  

LowcountryBizSC
What are the privacy issues related to putting court information on the cloud?

Jean Toal:
Family court is the area where privacy concerns are especially sensitive, so we have decided to implement this on its own platform. For the rest, you certainly need to build a smart, controlled system and establish the necessary security at each level. We have proved that it can be done.  

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How is the S.C. Supreme Court funded?  How is the court being affected by the economy and the era of state budget cuts?

Jean Toal:
We operate on a $60M annual budget.  Our biggest expense is salaries, which account for 87% of our budget.  We generate about $110M in fee money (filing fees, etc.), of which we retain around $18M.  The balance of our operations, $37M, comes from the General Assembly. This is peanuts when you consider the state’s $4B annual spending.  

Still, we have been severely affected by the state cutbacks. In fact, last year, we came close to losing the entire court system.  I proposed increasing civil filings fees to make up for the slack, an idea that was passed in the House and Senate, but vetoed by Governor Sanford.  Fortunately, when it went back to the House, the legislature put the funding back into our organization.  

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Can you comment on some of your major decisions and how they might impact the business climate in South Carolina?

Jean Toal:
I can’t comment of specific cases, but I can comment in general about the type of relationship that we have sought to establish with the business community.  Our goal over the past ten years has been to articulate a balanced point of view to businesses. If businesses are going to locate and thrive in this state, they need to be confident that the courts will handle disputes in a quick and consistent manner.  Our neighbor, North Carolina has a separate business court, for example.

First, when it comes to strictly business-to-business litigation — disputes over contracts, intellectual property, etc.- – we have appointed a dedicated business court judge in Richland, Greenville and Charleston counties.  These circuit court judges have other responsibilities but are specially trained in business-to-business dispute resolution.  Lawyers can apply to have their cases put into this business court and if approved, from that point, their case will move quickly and efficiently through the system with one judge handling it from start to finish.  

Second, our court has tried to convey a position of balance when it comes to trial venues.  We have made it more difficult to file a dispute in South Carolina counties that may have brought a lot of litigation against business.   

Third, we have tried to standardize what can and can’t be admitted in court in terms of scientific evidence and expert testimony.  

The assumption that the courts and business are like oil and vinegar is not true. When we went through the funding crisis last year, I was able to reach out to business leaders, many of whom I had worked with many years ago as a trial lawyer, and communicate the severity of the situation.  When they looked at what we had achieved in terms of operational efficiency of the courts, I think they were impressed. The business community stepped up and supported court funding.