© 2015 The Texas Lawbook.
By Mark Curriden
(Jan. 25) – A state judge in Lubbock issued a scathing ruling Friday declaring that prominent Dallas trial lawyer Bill Brewer committed misconduct when he used so-called push polling to improperly influence potential jurors in a West Texas wrongful death and products liability case headed for trial.
Judge Reyes found that Brewer and his law firm conducted a “push poll” with questions and statements that “were designed to influence or alter the opinion or attitude of the person being polled.”
Brewer represented steel pipe manufacturer Titeflex Corp. in a multimillion dollar case in which a West Texas family claimed that the company’s poorly manufactured pipelines led to a gas explosion that killed their son, Brennen Teel.
In the weeks before the case was set to go to trial, Brewer hired a professional polling firm to survey local residents in the Lubbock area about their viewpoints on issues involved in the lawsuit.
The judge ruled that the questions were designed to shift blame from Titeflex to those who installed the pipeline or to city employees in charge of inspections.
In court documents, lawyers for Brewer dispute that the survey was a “push poll.” They also argued that there is nothing illegal or unethical about Brewer hiring a professional polling company to gauge public sentiment about community views on issues related to the case.
Brewer said that those contacted by the polling firm were selected randomly and that any contact with people directly involved in the case was inadvertent.
“We have the greatest respect for Judge Reyes, but respectfully disagree with the Court’s findings,” Timothy T. Pridmore, a partner at McWhorter, Cobb & Johnson who is representing Brewer and the law firm in the case, said in a written statement. “We are closely evaluating our options on moving forward.
“There is nothing Mr. Brewer and the firm take more seriously than their professional responsibilities and ethical duties,” Pridmore said.
Bickel & Brewer, which was known for its scorched earth litigation tactics, changed its name last year to Brewer, Attorneys & Counselors, after founding partner John Bickel retired and later joined Fish & Richardson in Dallas.
While the parties in the Teel v. Titeflex case settled for an undisclosed amount in 2014, Judge Reyes held hearings on the sanction motions against Brewer last year.
In a four-page ruling issued late Friday, the judge found that the decision to conduct the survey “falls into the category of misconduct, which is highly prejudicial and inimical to a fair trial by an impartial jury.
“The Court finds Mr. Brewer’s actions were not merely a negligent act, a mistake or the result of poor judgment,” Judge Reyes wrote. “Mr. Brewer’s explanation that he bears clean hands because the poll was a blind study conducted by a third party vendor is insulting to this court.
“The Court finds Mr. Brewer’s attempt to avoid responsibility and accountability for his conduct to be at the very least unpersuasive and at worst in bad faith, unprofessional and unethical,” the judge concluded.
Judge Reyes also blasted Brewer’s attitude during the proceedings about the potential sanctions.
“Mr. Brewer’s demeanor was nonchalant and uncaring,” the judge wrote. “Mr. Brewer was repeatedly evasive in answering questions when he was on the witness stand. This Court sustained multiple objections for non-responsiveness [and], instructed Mr. Brewer to answer the questions being asked of him by counsel.”
If Brewer appeals the sanctions order and loses, the judge said the sanctions would increase to $173,000.
In his statement to The Texas Lawbook, Pridmore also wrote:
“As we stated in our post-hearing briefing, ‘The evidence is undisputed that Bickel & Brewer dealt only with [polling firm] Public Opinion Strategies…and did not direct anyone to contact any person related to this case or otherwise.’ Public Opinion Strategies then commissioned another contractor, SSI, to administer (the “Survey”) using a random sample from a list of names of +/- 20,000 Lubbock County residents, and which was provided by yet another independent vendor, i360.
“SSI then used a computer assisted telephone interview system to randomly call respondents and administer the Survey,” Pridmore wrote. “The evidence is undisputed that no one at the firm dealt with anyone other than Public Opinion Strategies, and did not direct anyone to contact any person related to this case or otherwise. As we argued in our briefing, ‘Charles Herring, Jr., a leading Texas expert on attorney ethics, discipline, and standards of care, confirmed that the Survey questions at issue were appropriate, that the Survey did not violate any Texas Disciplinary Rules, and that sanctions are not warranted here. Mr. Herring also noted there is little guidance for attorneys in dealing with surveys and jury focus exercises and that even his treatise did not address the circumstances at issue here.’”
George Kryder, a partner at Vinson & Elkins in Dallas, also represents Brewer. The Teel family is represented by Marquette Wolf and Ben Taylor, who are partners at Ted. B. Lyon & Associates.
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