Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m your host for this podcast where we speak with some of the best lawyers in the country. Today, we’re very lucky we have Jim Leach. Jim is a wonderful lawyer from South Dakota who really has walked the walk and talked the talk. He’s fought for the rights of Native Americans for years, decades. He’s fought for the right of the downtrodden, the poor, the abused, and he really is an inspiration for all of us. He practices out of South Dakota, but his cases have national impact and are really, really involve lessons for all of us and a lot of insight. So let’s get started.

I’m very happy to be talking with Jim Leach, who is such a wonderful guy that’s been part of the foundation for Trial Lawyers College, and truly a lawyer that represents what I think we all aspire to, who’s fighting to make people’s lives better every day, and has devoted his career to doing this. Jim moved to South Dakota right after graduating from law school in 1975 to work as a volunteer lawyer for the Wounded Knee Defense Committee, a pro bono organization that defended Native Americans that were charged with serious federal crimes after they occupied the village of Wounded Knee for 71 days in their search for a better life. Over the years, he’s done many different types of cases and legal work, including environmental and treaty cases on behalf of Native Americans, and most recently, he’s one several lawsuits on behalf of prisoners. He’s had three successive laws enacted by the state of South Dakota that restricted election rights to be held unconstitutional. It’s really my pleasure to be talking with Jim Leach today. Jim, thank you so much for being with us.

Jim Leach:

Well, thank you for inviting me, Scott, and I hope I’m worthy of that very kind introduction.

Scott Glovsky:

Yeah, well, you are. Jim, can you share with us a story of a case that had a profound impact on you?

Jim Leach:

Yes. The one most recently that comes to mind is a case that successfully challenged the practice of small police departments in South Dakota of forcibly catheterizing drug suspects when needed to try to get evidence of drug use.

Scott Glovsky:

Can you share with us the story from your client’s perspective?

Jim Leach:

Right, I-

Scott Glovsky:

Can you reverse roles with your client?

Jim Leach:

Well, yes. I had six clients in the same case, all bringing the same claims, each arising from a completely separate factual circumstance. But the one client who I think was actually the most important client in the case, because her treatment said the most to the judge about the reality of this, was a woman named Gina Alvarez. I can take on the role of Gina and speak as Gina if that would be helpful.

Scott Glovsky:

Yes, please reverse roles with Gina.

Jim Leach:

All right. Well, I live outside the small town of Winner, South Dakota, and it’s hostile to everyone except well off white people. I know that. But I was with my boyfriend, and we were drinking, and I was driving home, and apparently I failed to dim my headlights at night when I went past this oncoming state trooper. So he turned around and pulled me over, and arrested me for a DUI. But that’s just the beginning of the story, that’s not the end.

Scott Glovsky:

What happened next?

Jim Leach:

Well, I basically started to freak out because I have a problem being in closed spaces, and he put me in the back of his patrol vehicle, and I just … I hadn’t been using any drugs except marijuana, and I just started to freak out. What I’m going to tell you now is not a secret because it’s been filed, and it was eventually filed in the court case in my deposition. But I have a history of really a lot of abuse, of every kind of abuse, in my family of origin. What happened, and how this played into what happened, is that this trooper thought that I was under the influence of drugs, and he took me to a local hospital, and as … I was freaking out. I was yelling about my having been abused, and I was yelling at my father, and my father wasn’t even there.

Jim Leach:

As I did that, a nurse stripped off my pants and my underpants, and a male patrol officer actually grabbed one of my legs and held it open, and the nurse grabbed the other leg, and another nurse stuck a catheter into my urethra, and up my urethra into my bladder, and I just was freaking out. This is so hard because of my prior experiences in life. They drained the urine out, and finally took the catheter out, and they had their urine.

Scott Glovsky:

Gina, if you could put that feeling in a sound, what you’re feeling at this moment when you’re being attacked-

Jim Leach:

As Gina, I don’t think I want to do that to your listeners.

Scott Glovsky:

You must have been absolutely terrified.

Jim Leach:

I was terrified, I was out of my mind, basically.

Scott Glovsky:

A lot of pain.

Jim Leach:

Yeah, there was pain, but it was just … I was reliving things that happened to me long ago.

Scott Glovsky:

A lot of trauma.

Jim Leach:

Yep.

Scott Glovsky:

You must have felt powerless.

Jim Leach:

Beyond powerless. I was and am a working person. I had a small, little restaurant that I was running and keeping open. I’ve worked my whole life. I just … trying to get by. And to have police do this to me, it was one of the most humiliating things that’s ever occurred to me in my life.

Scott Glovsky:

Gina, what else do we need to know?

Jim Leach:

I had some physical problems. I had a urinary infection that I had to be treated for. This experience affected my relations with my boyfriend a lot because I just couldn’t be close to anyone and couldn’t be close in the same way that we had been before. I had flashbacks about this. It was all … There was nothing that was ever going to be done. I plead guilty to DUI, and then about a year later, out of the blue, I heard from this lawyer.

Scott Glovsky:

Okay.

Jim Leach:

That’s when the case started.

Scott Glovsky:

Okay. Then, Gina, let me have you reverse back with Jim.

Jim Leach:

Okay, I’m back. Jim’s back.

Scott Glovsky:

How are you feeling, Jim?

Jim Leach:

Okay. Kind of emotional.

Scott Glovsky:

Now, Jim, we’re going to hear your story that … although we’ve heard, obviously, part of it. How do you get involved in this case?

Jim Leach:

Well, I think there’s two stories to that. There’s the deep story, and then there’s the less deep story. I think I can tell them both really shortly. The deep story is that I’ve always wanted to work for people who are social outcasts, and what are sometimes called isolates in society. I think that’s because I grew up extremely emotionally isolated, and it took me a long time to overcome that. But the more direct story is that I became aware of this practice, that it was going on in South Dakota at all, when a newspaper article appeared about a man this had happened to in central South Dakota. I live in Rapid City, which is … It’s about 70,000 people, which is the second largest city in South Dakota. It had never happened here, but in some small towns in South Dakota, it did happen, and I later learned it had been going on for at least 20 years. It had probably happened to hundreds of people. But all that knowledge came later.

At first, I just learned about this one man. I read this newspaper article and I thought, “My God, that’s shocking. How can anything like that go on in the 21st century, let alone the 20th? This is horrible.” And I just felt I had to do something. I said I don’t know where this is going, but I don’t think I can respect myself unless I try to do something about this. So, I used that ethical rule that I don’t think a lot of lawyers know about, which is Model Rule of Professional Conduct 7.3B, B as in baker. It’s a rule that’s been adopted pretty much everywhere across the country, and it allows lawyers in cases that are not seeking monetary gain for the lawyer to make direct solicitation of a client by directly contacting the client. In other words, I think we all know that if someone had a motor vehicle collision, or something bad happen to them, as a lawyer, we’re prohibited from direct in person solicitation. But, in a case where the lawyer is not seeking financial gain, rule 7.3B allows it.

I always knew that if I did these cases, they’d be pro bono cases. The only way I’d ever get paid, not from the clients, but if I won the case, and if I could surmount the other obstacles toward a fee award, I could get paid by the defendants. In those circumstances, I just … I contacted the person in the newspaper article and talked to him, and he definitely was interested in filing a lawsuit. Then it went from there, and through investigation, and then later through discovery, I found my other five clients, including Gina Alvarez.

Scott Glovsky:

Tell us about your journey in the case.

Jim Leach:

The short story, the short version is that I found out the ACLU had also been aware of the person whose description was in the newspaper, whose story was in the newspaper, and they had not filed suit, so I wanted to tap into their expertise. I met with the ACLU lawyer, and we got along really well, and she was really happy to have me involved. We agreed that I would be lead counsel, and they’d be available for backup. So, I was lead counsel all the way through, but I was always able to submit my draft briefs or my ideas about the case to her and another lawyer in her office. They just gave me great feedback because people who have done civil rights law know it’s very, very challenging and complex area. Having their expertise was really helpful.

So, as the case proceeded, I had 10 different defendants. I had four defense lawyers. Fortunately, they were all my kind of defense lawyers, which means honest and easy to work with, no BS. I took 31 depositions. The defense lawyers took six depositions, just of the six plaintiffs. We both moved for summary judgment. I moved for summary judgment on liability, and they moved for summary judgment on the whole case. Both sides filed literally hundreds of pages of briefs and exhibits. I think I counted once and I filed 249 pages of briefs on the summary judgment motions because I had to both make my case and show why their arguments should not be adopted by the court.

Fortunately, the judge saw it my way. The judge held that forcible catheterization of drug suspects to attempt to obtain evidence of drug use so that those suspects could be charged with crimes was a violation of the Fourth Amendment. As I read his decision, he talked … The one time that I read passion in his decision, the most passion, was when he wrote about what had happened to Gina Alvarez. So, he got that, and I was glad I had been able to tell her story in the case in a way that, even though it was all on paper, in a way that came through to the judge.

Scott Glovsky:

What was the impact of your case in South Dakota?

Jim Leach:

Well, it actually had an immediate impact. I found out later that as soon as I filed the case, all the defense lawyers told their clients not to do this again until the case was resolved, and only if it was resolved in their favor. I think that reflects that these defense lawyers were smart enough to realize that they might lose this case, and they didn’t want to create anymore liability for their clients unless they could win this case. And so, while they defended it all the way through, they knew this was going to be a case they might not win. So, just filing the case immediately stopped this, which made me feel fantastic.

Then the case got quite a bit of attention and publicity. The net result of the judge’s decision is that it ended forcible catheterization in South Dakota. This practice, which, as I mentioned, had gone on for at least 20 years. That’s as far back as I could track it. I couldn’t sue for all those … on behalf of all those people because the three year statute of limitations was passed. But it had been going on just about … well, for that long, and it had never, ever been challenged, which I found … like, by a lawyer. And all these people had court appointed lawyers because they were all criminal suspects. I found that really sad, and baffling, and a reflection of the fact that sometimes a lot of lawyers just either don’t see things, or maybe don’t care about them, or don’t have an idea that they can do anything, which, if they had just contacted a good civil rights lawyer, something could have been done about this a long time ago.

There’s one other part of the case that was important that I want to mention. Out of the six people who were catheterized, who had claims within the statute of limitations, on whose behalf I could sue, the police had videotaped three of them. Gina Alvarez was not one they videotaped, but they videotaped three others. I got these videotapes in discovery and I watched them, and they were really horrible because they really showed how these people screamed, and how much pain they were in as this was being done with them. I was so lucky the police made those videotapes, because without them, it would just have been a swearing contest between the police and my clients, and I could already hear in my head what the police would say. They’d say, “Well yeah, he complained, but it didn’t really seem to bother him,” or, “He said it hurt, but I couldn’t see where it was really hurting him.”

These tapes were just awful. My legal assistant, who’s highly experienced in many cases, she watched one of them once and she refused to ever watch it again, and she refused to watch the other two because it was just traumatic for her to watch it. So, I always knew those … or I always thought those videotapes would help me a lot. When I finally read the judge’s decision, he really talked about those videotapes showed, and it confirmed my belief that those would be really, really helpful evidence.

Scott Glovsky:

What was your feeling when you read the decision?

Jim Leach:

Well, I was thrilled. I felt that I had fulfilled my moral duty to these people, and that I had fulfilled my moral duty as a human being. I was aware that the defense had the option to appeal to the Eighth Circuit Court of Appeals, which is not typically a real friendly court toward civil plaintiffs, or to drug users, or to criminal defendants. But the defense chose not to. They were interested in settling the financial parts of the case, and not interested in appealing. And they did. They settled and they paid the people this had happened to a significant amount of money, not a huge amount of money.

But from the beginning, every time I visited … When I first visited with each client, I said this case is not going to be about getting a lot of money because if we try it, we’re going to try it in this very small town in the center of South Dakota. It’s extremely conservative. I don’t think I can get you a lot of money from this jury, from a jury there. But what we can do is we … if we’re successful, we can stop this in South Dakota, and we can, perhaps if we’re lucky, get a really good written decision that can be used in other parts of the country where this has happened as authority, as precedent, to state that this practice is unconstitutional. That’s how it worked out in the end.

Scott Glovsky:

That’s such amazing and meaningful work that you’re doing. Can you share with us briefly, so that all of us can get a sense of the depth of the great work that you are doing and have done? I know you worked on a case under the 1868 Fort Laramie Treaty.

Jim Leach:

That’s right. Would you like to hear a little about that?

Scott Glovsky:

Please.

Jim Leach:

Well, here’s the short version. In 1867 and 1868, the federal government wanted to make peace with a number of Indian tribes, nine Indian tribes altogether, and one of those tribes was the Lakota Sioux tribe. Sioux became the American word for the Lakota people, and they’re synonymous now. But the 1868 Fort Laramie Treaty involved the United States and the Lakota. These other tribes all had treaties with the same language, and one thing the treaty said is that if a bad man among the whites shall commit any wrong against a person or property of the Indians, the United States will cause the offender to be punished, and will compensate the injured party, namely the injured Indian party.

And so, that treaty was sitting there, and in 1970, a lawyer who you may have heard of named Jerry Spence brought a case to enforce that against a … or on behalf of an Indian client who had been shot dead by an Indian law enforcement officer. A jury was able to get the principle established that liability could exist under that treaty provision, although he lost the case itself on the facts in a judge trial. That was back in 1970.

Well, over the years after 1970, there have been just a few cases in which lawyers had brought claims against government employees who had committed alleged wrongs against Native Americans on reservations. But when I looked at the case, I … or when I looked at the treaty provision, it doesn’t say anything about it being limited to government employees. It says if bad man among the whites, so it could be any bad man among the whites. Well, there was a case where a white man got drunk off the reservation, drove onto the reservation, and ran down two Native Americans, killing them both. He was eventually convicted of vehicular homicide in federal court. But of course, he was judgment proof.

So, a lawyer I share office space with brought a case in the Court of Federal Claims where these claims have to be brought. Unfortunately, the Court of Federal Claims ruled that the treaty provision wasn’t that broad, and it applied only to defendants who were government employees. So, the fellow who shares office space with me brought the case in to me, and I’ve done a lot of appeals, and he asked me to look at it, and asked me if I’d do the appeal. I looked at it, and I got excited about the case, partly because if we won, we’d establish this principal in a treaty that had existed since 1868, and that in the approximately 150 years since then had never been applied in this way. It would give Native Americans, not just on the Pine Ridge Reservation where the Lakota people live, among other reservations, but it would give eight other tribes’ members the same protection under their treaty.

I took the appeal and the appeal is to the Court of Federal Appeals in Washington, D.C., and won. They agreed with me. They said yeah, that’s what the treaty says, and they rejected the government’s claims that it should be viewed as obsolete or unenforceable for having not been enforced for so long. One of the great things about the case legally is that these cases can only be brought in the Court of Federal Claims, and then only appealed to the Court of Federal Appeals, which means there can never be a conflicting decision from any other circuit. So there could never be a circuit split. This can be extremely difficult for the government ever to get the case … one of those cases, to the U.S. Supreme Court, and the government chose not to seek certiorari in my case.

So, that right exists now under that treaty, and it was … I’m glad it exists, and I’m also glad that I was able to help enforce a treaty right that had been unenforced for so long because, of course, one of the underlying themes in all relations between Native Americans and the U.S. government is to what extent will treaty rights be enforced or ignored.

Scott Glovsky:

Well, I know you’ve done other amazing cases, including preserving Bear Butte, a very important and historical place for Native Americans, and an important place in Native American history, and an important place where Native Americans practice or pray. You’ve also done a lot of work related to the Vaccine Act, and are now working on expanding Medicaid in South Dakota, and really, just such important work. I want to take you now to talk a little bit about your feeling now that you have become, again, involved with Trial Lawyers College, and just … We were lucky enough to spend a week together working and growing last week. Tell us or share with us where you are on your journey right now.

Jim Leach:

My journey with Trial Lawyers College, or as a person, or a lawyer, or-

Scott Glovsky:

Whatever resonates the most.

Jim Leach:

Okay. Well, I’m 69, and I’m fortunately I’m in great health. Fortunately, I have a phenomenal family and a phenomenal wife. I’m going to keep on keeping on, for a while, anyway, and see how I feel as I move into my seventies. But, doing this kind of stuff just makes me feel good about myself and good about my ability to contribute to society. I am not a Bible person at all, but there’s a passage in the Bible that I paraphrase and that I really believe. I paraphrase it as, from those to whom much is given, much is asked. I know a tremendous amount was given to me. I was able to have a good education, I was born with some intelligence, and I’ve got the ability to help people who are underserved and often disregarded by the powers that be in our society. That’s just incredibly gratifying to me, and I think it was one of the two luckiest things in my life that I came to western South Dakota and was able to find a place here where I could contribute. The other luckiest thing was meeting my wife.

Scott Glovsky:

Beautiful. Beautiful. Well, Jim, let me close with a brief discussion of emotional connection. You shared with me that before doing the work we did in the past week, that you were at a place where you were not as excited about continuing your practice and contributing as such an experienced psycho dramatist and trial lawyer, and someone who’s been a part of Trial Lawyers College for many, many, many years, do you think there’s some element of the emotional connection that we receive when we communicate and feel safe and comfortable with other people that is involved in your enthusiasm now to continue practicing law, and that has insight onto how we try cases?

Jim Leach:

Well, absolutely. I think that a lot of life, in a lot of life, there’s not much emotional connection, and there are a lot of people who either don’t know how to have emotional connection or are afraid of it, or think it’s dangerous or wrong. But nonetheless, even if it’s never articulated, it’s there. Maybe it’s fear of becoming entangled. Lawyers, of course, when we went to law school, we were all taught to think like a lawyer, which I think doesn’t have anything to do with emotion, it has to do with a highly cognitive set of analytical skills.

Well, if I’m right that in all our relationships in life, emotion plays an important role, not the only role, but an important role, then it makes me rethink, and it has made me rethink how I do everything. It’s made me rethink how I relate to people, and as I talked about the forced catheterization cases, I hope it came through that it made me rethink how I related to the judge, even in my writing, because I think in legal writing, which of course is most of what most of us do in terms of persuasion, it’s absolutely essential to tap into the emotional reality in a way that allows the reader, whoever that reader may be, or whoever those readers may be if you’re writing for a court of appeals, to understand what really went on, and to understand the emotional factors.

Now, I do not mean being … writing only about emotions or being overly emotional, or anything like that, but it’s a matter of finding the story and expressing the story that carries the truth of the case, and so that when the judge goes home at night … This is one way to look at it. When the judge goes home at night and talks to her or his spouse or partner about what happened today, and the judge tells the spouse or partner about the new case that came in today, what are those sentences in which the judge describes the case. If you’ve reached the judge both emotionally and cognitively, they both have to be there, then the way the judge describes the case is going to frame how the judge sees the case, is going to reflect how the judge sees the case.

So, in all my relationships in life, I’m trying to access what’s going on deeper than surface level, because it’s more meaningful. For me, it’s a lot more meaningful. And it allows me to have a better chance of persuading people when I want to persuade them.

Scott Glovsky:

Well, Jim, thank you for your amazing work. You truly are an example of a lawyer that is fighting for other people, fighting to make the world a better place, and fighting against injustice. Thank you on behalf of your clients, thank you on behalf of the lawyers that you’ve taught and teach, and thank you for … personally, for sharing your stories with me. I very much appreciate it.

Jim Leach:

Well, I can’t let you … Thank you, Scott, but I can’t let you go without saying that, again, that I hope I’m worthy of that, and I try to live up to those standards as much as I can. Thank you.

Scott Glovsky:

Thank you.

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