Dawes Cooke Jr. — Direct/Cross/Redirect/Recross
216 linesJUDGE NEWMAN: You may call your next witness.
The witness, MORRIS D. COOKE, JR., was first duly sworn and testified as follows:
COURT CLERK: Take a seat on the witness stand. Please pull that microphone to you and adjust it so that it's your height and you can talk into it. If you'll state your name and spell your last name, please.
DAWES COOKE JR.: It's Morris Dawes Cooke, Jr., and Cooke is C-o-o-k-e.
DIRECT EXAMINATION
BY MS. FOX:
DAWES COOKE JR.: I'm a lawyer. I practice in Charleston, South Carolina, with the firm Barnwell, Whaley, Patterson, and Helms. I've been doing since -- I graduated from law school in 1979. I clerked for a judge for a year, and I've been with the same law firm since 1980, and I practice mainly civil litigation.
DAWES COOKE JR.: I don't mind representing plaintiffs, but most of the time I'm representing defendants.
DAWES COOKE JR.: I do.
DAWES COOKE JR.: Through practice of law. I've had cases against him over the years.
DAWES COOKE JR.: No. Well, I mean, now I do, but I did not previously to this, right.
DAWES COOKE JR.: I'm defending him in the boat accident case.
DAWES COOKE JR.: In December of 2020, I got a call from Danny Henderson and asked me if I would become involved. The case was already -- had already been going on for a year and a half or so at that time.
DAWES COOKE JR.: Yes. The Haynesworth Firm, John Tiller in particular, was representing him.
MS. FOX: And what, if any, understanding did you have as to why you were asked to join the defense team?
DAWES COOKE JR.: Well, John was sick, as I think everybody knows now, and would be undergoing treatment from time to time, and he was unsure as to whether he would be able to cover everything by himself. And so I was asked, one, to help him, sort of be a second chair for him, and also be a backup for times when he would not be able to participate.
MS. FOX: And would you please describe for the jury your assessment of the merits of the claim against Alex in June of 2021?
DAWES COOKE JR.: Well, I think I was the one that coined the phrase negligent parenting that Mark mentioned during his testimony. The claim at that time was that Alex was responsible for the boat accident because he knew that Paul was using his brother's ID, and I didn't think that there was a claim in South Carolina law for that, so I sort of facetiously called it negligent parenting. So, we felt that it was a defensible claim. I always sort of felt that lurking out there was going to be what's now negligent entrustment, that eventually they would allege negligence for having -- let him use the boat, which is the substance of the claim now, but even then we always felt like it was a defensible claim. I think the big picture that occurred to me was to hold him liable for that, would be to hold him to a higher standard than any of the other parents of the other folks that were in the boat, which anybody who's raised kids knows that that can be difficult.
MS. FOX: Okay, and what was your assessment as to Alex's financial exposure as a result of this case in June of 2021?
DAWES COOKE JR.: Well, it was -- it was -- it was unknown. And I'll have to say that was -- I didn't even really pay attention to that issue at the time. I think there was still a declaratory judgment action pending that was going to decide whether there was some additional insurance. I knew that the one policy was relatively limited. So, I wouldn't have said that he had no personal exposure, but that was certainly not the focus of our attention at that time.
DAWES COOKE JR.: Yes, several motions pending. For some time there had been a motion by Parker's to change venue. They wanted it out of Hampton and in to Beaufort County. And there was also -- they had made a motion to amend their answer to plead admiralty law, which would have some benefits over South Carolina law for the defense. And then there was this -- there may have been some motions to compel discovery with Parker's. I don't really remember specifically. And I think in October of 2020 there had been a motion to compel the answers to interrogatories and motion -- request to produce to Alex.
DAWES COOKE JR.: Yes.
(Break in proceedings.)
DAWES COOKE JR.: Yes.
MS. FOX: Okay. Great, and do you -- this is just the first page, but do you recognize this as the motion?
DAWES COOKE JR.: That's the motion, and then I think attached to that were two sets of interrogatories and a set of requests to produce.
MS. FOX: These are interrogatories. Would you just briefly explain to the jury what interrogatories and requests for production are?
DAWES COOKE JR.: Well, we call it discovery. The Rules of Civil Procedure provide various means of obtaining information from the other side, so interrogatories is questions that you can ask. And then requests to produce are documents and other materials that you can require be provided.
MS. FOX: And the supplemental ones that we're looking at right here, were those seeking financial information from Mr. Murdaugh?
DAWES COOKE JR.: Yes.
MS. FOX: Okay, and the objections, if you'll -- well, the answers right here to the interrogatories and then the objections right here, have you reviewed those?
DAWES COOKE JR.: Yes.
DAWES COOKE JR.: Right. That's -- this was done before I was involved in the case, but those are the exact objections that I would have made. This -- these financial -- discovery, it's sort of plaintiff's lawyers way of saying I'm really serious, and I'll call it intimidation, not in the pejorative way, but it's meant to --
DAWES COOKE JR.: -- really worry the defendants, and it's very common. And the typical response from the defendant would be just like that, and that is we object. It's not relevant. You haven't gotten a judgment against us. You don't need to know how much money we have until -- unless and until you do get a judgment. Then come back to that as well if your net worth could be relevant on punitive damages. If it goes to the jury, a jury could consider your wealth as a factor in awarding punitive damages, and so 95 percent of the time you work out some agreement to provide a financial statement. But I would never have produced all of these details at this stage of litigation as a defense lawyer.
MS. FOX: Okay. After joining -- after joining the defense team, did you have meetings or communications with other members of the defense team?
DAWES COOKE JR.: Yes, regularly. I'll have to admit there's a lot I didn't remember, so I've gone back and I've looked at my emails, my time records. We defense lawyers, we measure our lives in hour increments, and we have write everything down, so it was helpful for me to go back and look through my time records as well as emails to see who all was included. But, yes.
DAWES COOKE JR.: Oh yeah, yeah.
DAWES COOKE JR.: Yes. The one -- whether there was more than one, the one I -- the first one I remember was April 15 of 2021. I was just sort of getting involved. I don't think I'd made a formal appearance in the case yet, but there was a zoom conference. And I remember Alex was included on the zoom invitation, but I honestly can't recall whether he was in the meeting itself. I remember others who were in the meeting.
DAWES COOKE JR.: It was really to kind of orient me, and also there was some motions scheduled in May. So, it was just to get me oriented, talk about what the important issues in the case were and the things that we would be focusing on.
MS. FOX: Okay, and having attended that meeting, what, if any, understanding did you have as to the biggest issues facing Alex with the upcoming motions hearing?
DAWES COOKE JR.: Right. I had to go back and look at my notes to refresh my memory on that, but it was the -- as far as I was concerned, it was the venue issue, whether the case was going to be transferred back to Beaufort, because we didn't want it transferred back. We wanted it to stay in Hampton. We thought that the plaintiff wanted it to stay there, too, but he was wavering, and there was some thought that he might consent and we didn't want him to consent. So, that was a big issue. And then we spent a lot of time talking about admiralty. You know, was it beneficial to have admiralty as opposed to state common law. So, that was -- as far as the hearing, that was the important part of the conversation. That was about a two hour meeting, and we talked a lot about experts and depositions that needed to be taken and so forth as well.
MS. FOX: And after that meeting, based on those conversations, what, if any, understanding did you have as to the level of concern the defense team had regarding the motion to compel the financial information?
DAWES COOKE JR.: Really none. I wasn't dealing with Mark directly on that, John Tiller was doing it, and as far as we were concerned, that was something that they were going to work out. But the focus on the hearings was going on these other substantive issues.
MR. WATERS: Objection. Speculative.
JUDGE NEWMAN: What was the question?
MR. WATERS: Also 401 and 402.
JUDGE NEWMAN: I sustain the objection.
DAWES COOKE JR.: It was in May. I'm going to say May 10th, sometime in that area.
DAWES COOKE JR.: No. I think John -- some of his treatment had to be rescheduled and so they agreed to continue the hearing.
DAWES COOKE JR.: June, and I don't recall the exact date, but maybe the 10th or so.
MS. FOX: Okay, and at any point prior to the motion to compel hearing that was scheduled, did anything change in terms of your understanding that would make you think the defense team was concerned about the motion to compel?
DAWES COOKE JR.: No. I filed my formal notice of appearance so that I could be at the hearing. I think I actually did that in May before the first hearing, and so I was prepared to be there to argue whatever needed to be argued. But as I go back and I look at my notes and my preparation, it was on the venue issue and the admiralty issue.
MS. FOX: What, if any, factors did you consider when you made an assessment about Alex's personal financial exposure?
DAWES COOKE JR.: I never take a case lightly. I mean, Mark certainly is, you know, a very good lawyer, and obviously a very emotional case, so I won't say that we weren't concerned about it. But we knew that there had already been some other settlements, which we would have gotten credit for that. There was just a number of factors that made us feel like this was a defensible case and that there was not an existential threat to Alex.
MS. FOX: Okay. Are you aware as to whether or not an order was eventually issued regarding the motion to compel?
DAWES COOKE JR.: Yes. We call it a Form 4 order. It was issued around October 7th or 8th of 2021.
DAWES COOKE JR.: I got it right here. I mean, it said that John Tiller had not been able to get the information and that -- it says right here: The Court had a hearing on plaintiff's motion to compel filed October 16, 2020, was informed that defendant's attorney Tiller, because of circumstances beyond his control, is unable to gather or provide the necessary information to answer the requested interrogatories at this time. Once this information is made available to Attorney Tiller, the court will schedule a hearing on this motion to compel if necessary. Which means that John Tiller was going to get the information, and then if he couldn't work it out with Mark, then they would have a hearing on the motion to compel.
MS. FOX: So, was it your understanding the Court was ordering Alex to produce all of the financial information requested?
DAWES COOKE JR.: No. No. That's not what it said.
(Break in proceedings.)
MS. FOX: All right, just one or two more. Did you expect any cataclysmic event on June 10th regarding Alex having to give over financial documents?
DAWES COOKE JR.: Yeah.
DAWES COOKE JR.: Yeah.
UNIDENTIFIED SPEAKER: I'm right here.
DAWES COOKE JR.: Yes.
DAWES COOKE JR.: A number of times, yeah.
DAWES COOKE JR.: No, not that I remember. If he says I did I couldn't deny it, but I don't remember it.
DAWES COOKE JR.: Thank you.
JUDGE NEWMAN: By the State.
CROSS-EXAMINATION
BY MR. WATERS:
MR. WATERS: Now, you said the motion was meant to really worry the defendants, right? Those were your exact words, wasn't it?
DAWES COOKE JR.: Could you repeat that?
MR. WATERS: You just testified that the motion to get those financial information is meant to really worry the defendants.
DAWES COOKE JR.: Right.
MR. WATERS: Those were your exact words, correct?
DAWES COOKE JR.: Always, yeah.
MR. WATERS: Okay. All right, and were you present at the trial lawyers conference when Alex Murdaugh came up and towered over Mark Tinsley and said what's up, Bo? What are you doing? Were you present for that?
DAWES COOKE JR.: No. I don't get invited to that one.
MR. WATERS: Okay, but you weren't there when that happened, were you?
MR. WATERS: You weren't present for when he did -- said that to that man right there about that, about the boat case, what you doing, Bo? What's up?
DAWES COOKE JR.: I was not there.
JUDGE NEWMAN: The basis for the objection?
JUDGE NEWMAN: The objection is overruled.
MR. WATERS: And you did not --
JUDGE NEWMAN: He said he wasn't there. He said he wasn't there.
MR. WATERS: Okay. Thank you, Your Honor.
MR. WATERS: All right, and you did not get -- you didn't file your notice of appearance until -- in this case until May of 2021. Is that right?
DAWES COOKE JR.: I think that's about right, yeah.
MR. WATERS: Because you were actually representing other parties and that had to be resolved before you could get involved with Alex. Is that correct?
DAWES COOKE JR.: That was part of the reason, our firm was, yeah.
MR. WATERS: Right. So, you weren't -- couldn't have been with the conflict, heavily involved in any discussions that were going on between Mark Tinsley and John Tiller and Amy Bower prior to moving into May. Is that right?
DAWES COOKE JR.: That wasn't exactly the reason. The conflict had been waived, but I just wasn't involved in that. That was something that John and Mark were handling.
MR. WATERS: Right, and when John in May of 2021 asked for a continuance of that hearing on which the motion to compel the financial information was part of, he didn't offer you as any sort of backup because you weren't fully on the defense team at that point. Is that correct?
DAWES COOKE JR.: I think I had planned to notice my appearance before that hearing. I just -- I can't recall whether I didn't do it because the case was continued. But I would have appeared at the hearing.
MR. WATERS: You were asked about insurance coverage, and you're talking about the Philadelphia policy, right, that there was a declaratory judgment action on?
DAWES COOKE JR.: Right. Right.
MR. WATERS: Right, and the defense team knew that they weren't going to have any obligation to cover Alex in this, correct? I mean, it was very unlikely, and, in fact, it ultimately -- Judge Sherri Lydon in the Federal District Court denied that Philadelphia had to cover Alex one penny, correct?
DAWES COOKE JR.: Yeah. I'll have to say I wasn't following that, but that's pretty much my understanding. It was a long shot that there would be coverage.
MR. WATERS: When you were at this point in time in May or June of 2021 just getting on the defense team, you certainly didn't know anything about his true financial condition, did you?
MR. WATERS: You didn't know he'd been stealing money for years and years, did you?
MR. WATERS: You didn't know that he was broke, did you?
MR. WATERS: You didn't know he had misappropriated funds and was scrambling to try to replace those before people found out, did you?
MR. WATERS: You were asked about the hearing on June 10th that ultimately was continued because of these terrible murders, correct?
DAWES COOKE JR.: Correct.
MR. WATERS: That's your understanding. The murders happened and that hearing got continued because, of course, who's going to have a hearing in the wake of these terrible deaths, correct?
DAWES COOKE JR.: Yeah. I think Mark agreed to continue the hearing.
MR. WATERS: Of course, yeah. That got continued, right?
DAWES COOKE JR.: Right.
MR. WATERS: And even as a civil defense attorney, even if you believed that a claim down the line may be defensible, that still doesn't change the discovery process in a civil case. That goes on, correct?
DAWES COOKE JR.: That's true.
MR. WATERS: I mean, discovery still can happen and is going to happen --
DAWES COOKE JR.: Right.
MR. WATERS: -- regardless of whether or not the case settles or goes to trial or whatever happens, correct?
DAWES COOKE JR.: It's still going on.
MR. WATERS: And that's how civil cases -- typically how cases work in court is that both parties have to share a lot of information, and if one party doesn't want to share, the other party can ask the Judge to order it, correct?
DAWES COOKE JR.: That's right.
MR. WATERS: And that goes on regardless of -- or if the claim is ultimately going to be successful. That's part of the initial process.
DAWES COOKE JR.: Right.
MR. WATERS: And that was on the table for June 10th. That was one of the things that was on the table, correct?
DAWES COOKE JR.: The financial?
MR. WATERS: Yes.
DAWES COOKE JR.: Yeah, and then there was the other interrogatories, too.
MR. WATERS: And there was a number of other things as well.
DAWES COOKE JR.: Right.
MR. WATERS: All right, and if that hearing had gone forward, there could have been an order issued compelling that process, correct?
DAWES COOKE JR.: Could have been.
MR. WATERS: Could have been.
DAWES COOKE JR.: Yeah.
MR. WATERS: All right, and so once that happened, once that order gets issued, that's going to set in motion a train that's going to have to come to a conclusion in a court of law, correct?
DAWES COOKE JR.: If that happened, right. Ultimately the judge is going to decide what has to be produced and what doesn't.
MR. WATERS: That's right.
DAWES COOKE JR.: Uh-huh.
MR. WATERS: Thank you, Mr. Cooke.
DAWES COOKE JR.: Thanks.
REDIRECT EXAMINATION
BY MS. FOX:
MS. FOX: Mr. Waters just asked you for your opinion as to the June 10th hearing. And based on your forty years of experience --
MR. WATERS: Your Honor, objection. I did not ask for her -- for the opinion. I just asked what potentially could happen.
JUDGE NEWMAN: I didn't hear the question.
MS. FOX: Based on your forty years of experience, what was your opinion of the likelihood that the order to compel would be granted?
MR. WATERS: Objection, Your Honor.
JUDGE NEWMAN: Sustained.
MS. FOX: Let me ask you this. Just because it's possible that the order could have been granted, does that make it plausible?
MR. WATERS: Objection, Your Honor.
JUDGE NEWMAN: Sustained.
(Break in proceedings.)
MS. FOX: If the Judge had ordered the documents to be produced at the June 10th hearing, would Alex have had to turn them over immediately?
JUDGE NEWMAN: Anything further?
RECROSS-EXAMINATION
BY MR. WATERS:
MR. WATERS: If that would have happened, it would have set in a process -- set in motion a process, though, would it not have?
DAWES COOKE JR.: You --
MR. WATERS: Let me rephrase that question.
DAWES COOKE JR.: If he had ordered production of all of the documents that were requested?
MR. WATERS: Right.
DAWES COOKE JR.: Yeah, there would have -- that would have been part of the process, right.
MR. WATERS: It would have started the process, an order of a judge, correct?
DAWES COOKE JR.: That's true.
MR. WATERS: And it would have happened eventually if the Judge ordered that, correct?
DAWES COOKE JR.: If he ordered production of all of the documents, right.
MR. WATERS: Nothing further. Thank you.
JUDGE NEWMAN: You may step down.
DAWES COOKE JR.: Thank you, Your Honor.
(The witness exited the stand.)
JUDGE NEWMAN: You can call your next witness.
MR. HARPOOTLIAN: Please the Court, Your Honor? The next witness is an expert that's going to take awhile to begin and break for lunch and then -- I'll do whatever you want to do.
JUDGE NEWMAN: We'll go for about a half hour and then break. As we anticipate him, however, let's all stand.
(Break in proceedings.)