The Litigator’s Notebook: IJ Puts Tour Guide Licensing of Trial

On television, a lawyer’s life is filled with dramatic courtroom showdowns. In reality, lawyers mostly write briefs, read documents, and build cases behind the scenes. Still, for four days in April, IJ’s case challenging tour guide licensing in Charleston, South Carolina, yielded the kind of courtroom drama a TV producer would love.

It took hard work to get there. IJ filed the case in January 2016, and over the next two years we wrote three rounds of briefs, reviewed thousands of pages of documents, and spent many hours building the record. Finally, in April, the case went to trial.

For IJ’s clients, trial was an opportunity to tell their story. All three testified about when they decided to become tour guides, when they realized that they had to pass the city’s exam, and how it felt to learn they had not passed. The clients testified that the picayune details on the exam (things like the names of local architects) had nothing to do with the things they wanted to talk about on their tours—or even the things their customers wanted to hear.

City officials testified as well, though in their case they had no choice. IJ served them with subpoenas, forcing them to come to court. IJ Attorney Arif Panju squared off against a particularly recalcitrant official, confronting her with 20 years of government records showing that the city uses tour guide licensing to police speech.

Asked to justify the licensing scheme, the city’s longtime mayor confidently predicted that Charleston’s economy would “go down the tubes” without it—but the city never produced any evidence to back up that sweeping claim.

As always, the courtroom drama was made possible by the kind of hard work you almost never see on TV.

Instead, the city flew a witness in from Chicago, and she ended up making IJ’s case. Although she heads an association that supports tour guide licensing, she testified that voluntary certification can accomplish the same goals. And, asked whether Chicago’s economy has gone “down the tubes” without tour guide licensing, she testified it has not.

IJ Senior Attorney Robert McNamara closed the trial with a powerful summary of IJ’s core arguments against these kinds of licensing laws: “Burdens on speech are a serious matter,” he told the court. “They have to be taken seriously by the government”; yet “the record clearly shows that they were not.”

As always, the courtroom drama was made possible by the kind of hard work you almost never see on TV. Paralegal Kendall Morton worked tirelessly behind the scenes, organizing scores of pieces of evidence in more than a dozen boxes so the attorneys could point to just the right document at just the right time. And every day, after the lights in the courtroom shut off, IJ’s team returned to the “war room” at the hotel to work late into the night preparing for the next day.

The judge predicted a decision by August, and in the meantime we are back in the office drafting post-trial briefs to submit to the court. At IJ, we put in the hard work required for victory—both inside the courtroom and out.

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