The plaintiffs bar and corporate defense attorneys seldom agree on anything, but their advocacy groups are united on the argument that Dallas trial lawyer Bill Brewer did a bad, bad thing.
In response, Brewer’s lawyers, in a brief filed late Friday, say these trial lawyer organizations are “sanctimonious,” hold “a decades-old grudge” against Brewer and misstate the facts in his case.
Both sides agree that the case presents “multiple questions of law and policy that have far-reaching implications and are important to the jurisprudence of the state.”
The battle of the briefs comes only 10 days before the Texas Supreme Court is scheduled to hear oral arguments about whether Brewer, who is widely known for his scorched-earth litigation tactics and for representing the National Rifle Association, committed misconduct and used a so-called “push poll” in an attempt to improperly influence a jury pool.
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 biased 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.
Brewer appealed to the Texas Supreme Court, arguing that he violated no disciplinary or ethics rules and that he was simply zealously advocating for his client by conducting pretrial surveys that have been routine in high-stakes litigation for decades.
Lawyers for Brewer contend that there is no evidence that he acted in bad faith and that Judge Reyes abused his discretion in issuing the sanctions finding and order.
In fact, Brewer argues that a ruling against him “undermines zealous advocacy.”
In an unprecedented joint amicus brief filed earlier this month, the Texas Trial Lawyers Association, the Texas Association of Defense Counsel and the Texas Chapter of the American Board of Trial Advocates asked the state Supreme Court to uphold the sanctions against Brewer.
“Brewer’s conduct undermines the adversarial process, threatens the right of all parties to a fair and impartial jury and damages the community’s confidence in a system where all parties have equal access to a fair hearing,” Brian Lauten, a Dallas lawyer, wrote in the brief for the legal organizations.
The Texas Supreme Court is expected to hear oral arguments in the case Oct. 10 in a special session held at the Texas A&M School of Law in Fort Worth.
Brewer Attorneys & Counselors has six partners and 11 associates, as well as 20 other non-lawyer professionals. Brewer’s hourly rate for corporate clients is $1,400.
The firm and its insurance carrier have hired Vinson & Elkins partner George Kryder, SMU Dedman Law School legal ethics professor Linda Eads and Timothy Pridmore, a partner at Lubbock’s McWhorter, Cobb & Johnson, to represent Brewer.
“There is nothing our firm takes more seriously than its ethical obligations,” said Michael J. Collins, a partner at Brewer. “We have great respect for the courts below but respectfully disagree with their findings, which were unsupported by any citation to the record. We believe that Mr. Brewer and our firm acted appropriately at all times.”
“We believe the record reveals we were attempting to gauge for public opinion – not influence it,” said Collins.
The hearing at the state’s highest court comes at a time when Brewer and his firm are under intense scrutiny by investigators and the news media for their brash tactics in representing the NRA.
A recent Washington Post article pointed the finger at Brewer for all the internal fighting at the gun rights group. The newspaper cited multiple sources contending that Brewer helped orchestrate the removals of NRA chairman Oliver North, some of its long-term lawyers and the PR agency that has worked with the NRA for decades. The Post reported that the NRA has paid Brewer and his firm $24 million over the past 13 months.
The Texas Supreme Court case concerns Brewer’s representation of Titeflex Corp. in a multimillion-dollar case in which a West Texas family claimed that the company’s steel pipelines were poorly made and resulted in a gas explosion that killed their son, Brennen Teel.
A few weeks before the trial was scheduled to start, Brewer’s firm commissioned a polling firm to survey thousands of Lubbock residents about the issues in the lawsuit.
Ted Lyons, a lawyer for the plaintiffs, accused Brewer of misconduct, arguing that the effort was nothing more than a “push poll” designed to influence potential jurors by shifting the blame for the explosion away from Titeflex and toward the people who installed the pipeline or to city employees in charge of inspection.
Brewer rejects the claim that he conducted a “push poll,” saying that his questions were presented in random order and that those surveyed were selected randomly from an independent database.
Lawyers for Brewer argue that the polling was necessary to combat efforts by the plaintiffs’ attorneys that they say were prejudicial against their client, including TV appearances in which Lyon said Brewer’s client knew and misrepresented the dangers of the product for several years.
Judge Reyes, after several days of hearings, ruled against Brewer.
“Mr. Brewer’s conduct, taken in its entirety, is an abusive litigation practice that harms the integrity of the justice system and the jury trial process,” Judge Reyes wrote. “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.”
Brewer appealed but the court of appeals in March 2018 ruled that Judge Reyes did not abuse his discretion in issuing the sanctions order.
The case is now at its final stop, the Supreme Court of Texas, where Brewer is asking the justices to toss out the sanctions.
“Brewer was sanctioned for conducting a random, blind and balanced pretrial survey – a widely accepted litigation tool not prohibited by any rule, ethics opinion, case, disciplinary rule or other authority – to zealously represent his client and understand the prejudice caused by [plaintiffs’] counsel’s extensive pretrial media campaign,” Brewer’s lawyers state in their brief to the state justices.
The dispute was ratcheted higher last month when TTLA, TADC and ABOTA filed their joint amicus brief stating that “nothing could be more poisonous to this ancient ideal” of the jury system than “Brewer’s behavior.”
“Brewer’s conduct undermines the adversarial process, threatens the right all parties to a fair and impartial jury, and damages the community’s confidence in a system where all parties have equal access to a fair hearing,” Lauten wrote on behalf of the trio of groups.
“Attempts to poison the potential jurors before a trial even begins is an assault on the rights of the litigants and the community’s expectation in the fundamental fairness of the system that forms the cornerstone of the judicial system,” according to the amicus brief. “If lawyers and the parties they represent are given unchecked power to conduct widespread ‘push polls’ using false information calculated to steer the venire toward their theory of a pending case, the jury system is tainted and disputes cannot be fairly resolved.
“Lawyers from coast to coast are following this appeal,” Lauten, a Dallas trial lawyer, wrote in the 38-page brief. “This court must make a resounding statement that this conduct, even if pursued under the auspices of zealous advocacy, cannot be tolerated.”
Late Friday, Brewer and his lawyers filed a 23-page response calling the amici “far-from-disinterested lawyer groups” and stated their brief “favors mock-outrage, selective citation and sanctimonious bluster over the actual facts.”
“Holding a decades-old grudge against an unpopular attorney (not invited into their ranks), these lawyers pile on, urging sanctions in a case that settled in 2014 without a venire being summoned, let alone a trial, where voir dire (not sanctions) would have been the sufficient and legally-mandated tool for seating an impartial jury for all parties – a constitutionally-grounded ideal no one disputes,” Brewer’s brief stated.
Brewer also points out that some of the plaintiffs’ lawyers involved in the case are members of TTLA and ABOTA.