Texas Supreme Court oral arguments Thursday in the dispute over judicial sanctions against Dallas trial lawyer Bill Brewer featured lawyers on all sides making factual allegations, highly engaged justices actively interrupting and pushing back and one attorney threatening to quit the legal profession if the court ruled in favor of Brewer.
One of the lawyers went so far as to argue that Texas law gives the justices no choice but to uphold the sanctions against Brewer. And another attorney may have been the first advocate in Texas Supreme Court history to properly pronounce the word “venire.”
And all of this drama was witnessed by the student body of the Texas A&M University School of Law in Fort Worth.
But the entire case seems to come down to two basic questions for the justices: Did Brewer commission a survey designed to influence potential jurors in a commercial litigation in Lubbock in 2011? And did Brewer, known for his scorched-earth litigation tactics and representation of the National Rifle Association, act in bad faith or was he just being an ass in court?
If it was the latter and the survey was legitimate, some members of the state’s highest court seemed inclined to reverse the sanctions against Brewer.
Lawyers for Brewer contend that their client did nothing wrong and that he’s being punished because he is abrasive and zealously advocated for his client he represented in the lawsuit in Lubbock.
A state trial judge in Lubbock ruled in 2016 that Brewer, who was defending a corporate client in a multimillion-dollar damage dispute, conducted a phone survey targeting thousands of individuals possibly in hopes of tainting the jury pool in his client’s favor.
District Judge Ruben Reyes sanctioned Brewer and fined him $177,000 and ordered him to attend 10 additional hours of continuing legal education on ethics.
The Seventh District Court of Appeals in Amarillo upheld the sanctions against Brewer, who then appealed to the Texas Supreme Court.
George Kryder for Brewer
“Mr. Brewer correctly feared that before the survey was even conducted, the public was already exposed by the plaintiff’s media influencing campaign that affected his client’s right to a fair trial, and necessitated the survey,” George Kryder, a partner at Vinson & Elkins who is representing Brewer, told the justices.
Kryder argued that one-third of the people in the survey said they already knew about the lawsuit, mostly because of a media campaign initiated by the plaintiffs. He also said that there was no evidence that Brewer violated the Texas Disciplinary Rules of Professional Conduct.
“Are you arguing that to be sanctioned, a rule or code of conduct must be violated?” Justice Debra Lehrmann asked just three sentences into Kruder’s argument.
“No your honor,” Kryder responded. “But here, for sure, there has to be a finding – which the trial court did not make – that there was significant influence with a core function.”
He argued that there is no evidence that Brewer acted in bad faith in conducting the polling.
“Are we looking at bad faith at the time of the sanctions hearing or bad faith at the time of survey?” Justice Eva Guzman asked, referring to the trial court’s ruling that Brewer was evasive in his answers and seemed disinterested about the court’s inquiry.
“Time of the survey,” Kryder answered. “We look at his intent then. This court is not bound by the findings of fact and the conclusions of law below. The trial court, in an over 10,000-page record, did not cite a single page.”
“The trial court has to cite evidence?” Justice Brett Busby inquired.
“It needs to be supported by evidence,” Kryder said.
“But these are trial courts that have no law clerks,” Busby shot back. “I don’t think we’ve ever required them to cite the record.”
Justice Lehrmann then asked about Brewer’s conduct on the witness stand during the sanction hearings.
Kryder said five lawyers cross-examined Brewer over an entire day.
“Having represented lots of lawyers over the years – lawyers can be witnesses who get a little bit grumpy particularly after a long day,” Kryder said. “He was contrite. He said it was unfortunate that various people had been contacted inadvertently.”
“The court of appeals focused on his attitude during the hearing – that he was nonchalant, uncaring, repeatedly evasive,” Justice Guzman said.
“Surveys have long been recognized as a tool that litigants can use, particularly in connection with change of venue proceedings,” Kryder answered. “All of the science behind this survey…”
“Excuse me,” Justice Lerhman interrupted. “I think the question or at least what I was trying to get at is, what is the effect that clearly was given and how much should we take that into consideration the behavior that went on as perceived by the trial court.”
“As we said in our brief, a perceived bad attitude is not the same as bad faith,” Kryder responded. “You have to look at the reason for commissioning the survey.”
“There’s certainly some behavior that could be bad faith,” Lehrman shot back. “What if someone hit another lawyer?”
Kryder kept trying to guide the justices back to his arguments, including that there should be no sanctions because “no jury [in this case] was ever summoned” and “no venire man or woman was ever contacted.”
“That can’t be the test though,” Justice Busby pushed back. “Then you could have as much improperly influencing as you want if there’s no trial.”
Justice Jeff Boyd agreed.
“The whole duty of the trial court is to protect the jury process and not taint the jury pool,” he said. “If the trial court concluded that this survey would have tainted or would have had a reasonable likelihood of tainting the jury pool, wouldn’t he have been within his discretion in prohibiting it from going out?”
“That would raise a serious issue of prior restraint,” Kryder answered. “Of course Mr. Brewer and his client would not have done that, but we, in fact, think this is a fair and balanced survey.”
Kryder said if the survey was one-sided and was a “push poll,” a judge could look at motivation or intent and decide to issue sanctions. But he said that was not the case here.
Ben Taylor for the Teel Family
Next up was Ben Taylor, an appellate lawyer for Ken and Becky Teel, West Texas parents who claimed that steel pipelines made by Brewer’s client, Titeflex Corp., were poorly made and resulted in a gas explosion that killed their son.
Only a minute into his argument, Justice Guzman interrupted.
“Does the punishment fit the crime if the crime is a bad and disrespectful attitude, which we should disavow – lawyers should not conduct themselves that way in the courtroom – but does the punishment fit the crime if that is what the crime is?”
“It does, your honor,” Taylor answered.
“$177,000?” Guzman asked.
“We’re not here complaining about the evidence to support the fees,” Taylor said.
“But it goes to the standard,” Guzman shot back.
Taylor pointed to the Texas Supreme Court’s 1997 decision in In Re Bennett.
“Significant interference is not a requirement,” he said. “But if it is required, we have it in this record.”
Justice Boyd told Taylor to assume he doesn’t consider the survey a push poll and is subjectively neutral. “Can I still uphold these sanctions?” he asked.
“I say, yes, you can,” Taylor said.
“On what basis?” asked Boyd.
“I say you are obligated to your honor,” Taylor replied. “This is trial court discretion. Disputed evidence. A judgment of the court of appeals is conclusive of the facts in all civil cases, and this is a civil case.
“When the judge found that these questions were intended to sway people’s attitude, that is a factual finding, and the court of appeals judgment is conclusive of the facts in all civil cases,” he said.
Brian Lauten for ABOTA, TTLA & TADC
Brian Lauten, a Dallas trial lawyer who filed an unprecedented joint amicus brief last month in this case on behalf of the Texas Trial Lawyers Association, the Texas Association of Defense Counsel and the Texas Chapter of the American Board of Trial Advocates, used his 10 minutes of oral argument to ask the state Supreme Court to uphold the sanctions against Brewer.
“Something has been greatly missed here,” Lauten said. “Forget the term ‘push poll.’ There are lies in this poll. Let me give you the best example. Question 14 and 20 say the builder did a sloppy job and that the installation was not done correctly. That is completely false.”
Lauten said the evidence showed the opposite was true.
“That false disinformation that is completely wrong is being given to the venire,” said Lauten.
“Is there a dispute about the methodology – how the poll was conducted, how random the sample was – was there a dispute about that?” Justice Guzman asked.
“No, I don’t think so,” Lauten answered.
“The reason I ask: Part of their argument is that they didn’t get the opportunity to bring in the testing company from out of state,” Justice Guzman said.
“A focus group or mock trial or true survey is designed to find out what people think, not to tell people what to think,” Lauten said. “My argument to this court on behalf of 11,000 trial lawyers who are absolutely opposed to this: It is 100% never appropriate under any circumstance to give false information to anyone who could be in the jury pool.”
“You say 11,000 trial lawyers are opposed to this. Have you surveyed them?” Justice John Phillip Devine asked.
Lauten said he has not surveyed all 11,000, but the organizations gave him full authority to speak for them in this case. He said if the Supreme Court rules in Brewer’s favor, lawyers across Texas will be contacted by survey groups offering to do push polls in most cases.
“Mr. Brewer isn’t here about the sanction,” Lauten said. “He wants to keep doing this. No one wants this. This is an incredible threat to the civil justice system.
“I’m out of here as a lawyer, if this becomes the law,” he said.
Kryder Back for 5 Minutes
As Kryder stepped to the podium for his final five minutes of argument, he was met by immediate questions.
“If the survey disseminated false information, what is your response?” Justice Lehrman asked.
“It would not be OK, and there was no false information in here,” Kryder responded.
Kryder said the questions start with the phrase, “some people say and other people say…”
“So it would be okay if it said, some people say this person sacrifices animals?” Justice Busby inquired. “You can start anything with, ‘Some people say…’”
“In that hypothetical, I would have a problem,” Kryder replied. “I do not have a problem with the questions asked here. They are based upon issues in a case. They do not influence. They measure.
“This court should find that the survey is appropriate.”
He asked the court to not “lower the test.”
“They have not addressed the presumption of good faith that Mr. Brewer enjoyed,” Kryder said.
“Isn’t that overcome by his attitude in the courtroom?” Justice Lehrman asked.
“It is not, your honor,” Kryder replied. “Attitude in the courtroom doesn’t equate to bad faith in the survey weeks before. The court did not find Mr. Brewer to be untruthful.”
Justice Jane Bland did not participate in the case because she was a lawyer at V&E, Kryder’s firm, until earlier this year.
Texas A&M
The justices held arguments Thursday in Fort Worth to a packed house on the campus of Texas A&M’s law school.
Chief Justice Nathan Hecht opened the proceedings by explaining that the state’s highest court could only be in session in Austin for more than a century due to limits placed on it by the Texas Constitution.
But that changed in 1997 when the Legislature and the voters amended the document. Now, the justices sit at visiting sites twice a year – once in the spring and once in the fall.
In fact, Chief Justice Hecht noted that the Supreme Court actually held arguments on the Fort Worth campus 20 years ago when the school was called the Texas Wesleyan School of Law, which Texas A&M purchased in 2013.
Chief Justice Hecht said it is important “to provide the public an opportunity to see some of the best lawyers in the state argue hard cases” and for the public to “watch how the court questions and probes to test their arguments and to witness first hand the Texas justice system at work.”
Venire
All three lawyers – and possibly a couple of the justices – used the Latin word venire to describe the pool of prospective individuals from which juries are selected. All but Lauten pronounced it va-nire.
But Lauten pronounced it ve-neer, which is how it is said everywhere but the deep South.
Could voir dire (accurately pronounced voir deer) be the next barrier Texas lawyers break through?