The race for judge of the 215th District Court in Harris County is a rematch from 2016.
Republican Fred Shuchart, an insurance defense lawyer and shareholder in the Houston office of Cooper & Scully, is challenging the incumbent judge, Democrat Elaine H. Palmer.
Four years ago, she beat him 52% to 48%. That was the year the Harris County bench turned bluer than a Hank Williams tune. Democrats won all 23 district court races on the county’s 2016 ballot.
Two years later, Shuchart took a run at a different seat on the district court bench. He didn’t make it out of a three-way GOP primary.
This time around, things could be different, he said. “I think I have a real shot,” he told The Texas Lawbook.
Palmer was first elected to the 215th Court in 2012, in a hard-knuckled campaign heavily underwritten by Houston plaintiff’s lawyer George Fleming, founder of the firm now known as Fleming Nolen Jez. Palmer trounced the incumbent judge, fellow Democrat Steven Kirkland, in their party primary, then narrowly beat Republican Ken Shortreed in the general election.
Fleming had reason to be displeased with Judge Kirkland. A year earlier, the judge had slashed by $13 million the fees Fleming’s firm collected from a $339 million settlement paid to 8,051 of Fleming’s clients in the national wave of so-called “fen-phen” litigation.
In 1997, the prescription diet pill containing fenfluramine and phentermine was pulled from the market by its manufacturer, American Home Products (now Wyeth), after studies linked the drug to heart damage. Within two years, more than 6,500 lawsuits were filed across the country by users of fen-phen. Fleming was among the plaintiffs’ lawyers most active in the litigation.
In the case that ended up in Kirkland’s court, a group of Fleming’s clients sued his firm, saying they were improperly billed for echocardiograms and other expenses related to the litigation. The judge sided with the clients, effectively reducing Fleming’s cut of the settlement to $28 million from $41 million.
Months later, Kirkland, who was running for his second term, found himself in a primary fight with Palmer, a lawyer with a modest general practice in Houston who had never before served on a bench or run for judicial office.
The vast majority of her campaign donations, more than $58,000, came from Fleming, his firm, employees of the firm and its firm’s political action committee.
Palmer trounced the incumbent judge, fellow Democrat Steven Kirkland, in their party primary after her campaign ran radio ads and sent out mailers highlighting his two drunk-driving arrests, from almost 30 years earlier. She narrowly beat Republican Ken Shortreed in the general election.
Kirkland, a recovering alcoholic, celebrated 28 years of sobriety – and did so publicly on his campaign’s Facebook page – just days before the primary. The DWI arrests occurred in 1982 and 1984, when he was in his early 20s. They were the impetus, he later said, for his decision to give up drinking.
Kirkland blamed the “cheap” and “offensive” radio ads for a dismal showing in the primary. He drew just 39% of Democrats’ votes, compared with 61% for Palmer.
At the time the radio ads were running, KHOU-TV in Houston quoted a Palmer campaign spokesperson as saying: “We think voters should know who they are electing. We believe the ads are relevant. We will air the ads as long as the radio stations let us run them.”
In a 2014 email to The Huffington Post (now called the HuffPost), Fleming denied that his motive in bankrolling Palmer was to get back at Kirkland for that $13 million ruling. He was just doing his civic duty.
“I don’t have a vendetta against anyone,” he said.
Fleming, a lifelong Democrat, said he’s donated to many judicial candidates. All lawyers, he added, should want to invest in a qualified bench.
“Our selection in Texas of judicial candidates is an elective system. Like so many others, I participate in that system and have for many years.”
Palmer fared poorly in the Houston Bar Association’s 2019 judicial evaluation poll. Overall, she finished 21st out of 24 civic district court judges – and one of the three judges who finished worse has since been removed from office, having pleaded guilty to wire fraud.
Based on their “personal, firsthand knowledge,” HBA lawyers were asked to grade each judge’s performance overall in six specific categories: “Follows the law,” “Rules decisively and timely,” “Is courteous and attentive toward attorneys and witnesses,” “Demonstrates impartiality,” “Uses attorneys’ time efficiently” and “Works hard and is prepared.”
The lowest possible grade was “Needs improvement.” The other choices were “Excellent,” “Very good,” “Satisfactory” and “No opinion.”
Overall, 39.9% of those polled said Palmer needed improvement; 19.2% said she was excellent, 15.9% said she was very good, and 16.5% found her satisfactory. As a benchmark for disesteem, the judge who was busted for wire fraud, Alexandra Smoots-Thomas, got a “Needs improvement” rating from 46.9% of the those polled. Her excellent, very good and satisfactory marks were within 3 percentage points of Palmer’s.
Shuchart said the elimination of straight-ticket voting this year could help Republican challengers like himself swim against what’s become an unrelenting blue tide in Harris County judicial elections.
“When people vote by party, there’s a tendency to throw the baby out with the bathwater,” Shuchart said.
“Some very good Republican judges lost in 2016 and 2018 – just like some good Democratic judges lost in 2010.”
In a questionnaire from The Texas Lawbook, Palmer was asked to comment on the HBA poll and to specify what, if anything, she’s done to address the lawyers’ concerns. She skipped that question, along with many others.
Palmer’s written responses to the questionnaire follow. Shuchart preferred to be interviewed by phone. His responses were reconstructed from our notes of that interview.
Q: What led you to practice law?
A: Career Day in fourth grade. A classmate’s mother was a judge.
Q: Tell us a little bit about your career before taking the bench.
A: I was a general practice attorney. Most of my clients were small businesses and individuals.
Q: What are one or two of the most significant cases you handled as a trial lawyer?
A: I had a bankruptcy matter that was simple but got complicated as time went on. But by the 60th month, my client completed his bankruptcy plan and was able to recover and has been prosperous ever since.
Q: What do you wish you’d been taught in law school that you were not?
A: I think all law schools should have a class on how to run a law practice as a business.
Q: How many jury trials did you work on as a practicing lawyer?
A: The large majority [of my cases] were settled before trial.
Q: What led you to become a judge?
A: As I said before, Career Day in 1974. A classmate’s mother was a judge, and that was the day I knew I wanted to become a judge.
Q: What are the biggest challenges your courthouse is facing, and what role are you playing to address those challenges?
Q: What led you to enter this race?
A: I’ve been practicing for 35 years, mostly doing insurance coverage litigation and appellate work. I’ve tried cases throughout the state of Texas. I’ve handled appeals in five different state appellate courts, plus the U.S. Court of Appeals for the Fifth Circuit.
To be honest, I got sick and tired of what was going on in the Harris County district courts. Qualified judges were losing election after election, in part because of straight-ticket voting. When I ran in 2016, I won the non-straight-ticket vote, but lost the election. Now that the Legislature has ended straight-ticket voting, I think I have a real shot.
Elaine is a very nice person, but she had never tried a case before she got to the bench. She was put up to run in 2012 by a single attorney because he didn’t like an award of attorney’s fees that the sitting judge had given him. She has been consistently rated in the bottom quarter of judges in the Houston Bar Association poll. She has a reputation for not ruling expeditiously, to say the least.
Q: Tell us a little bit about your career and how your previous experience would help you during your service on the bench.
A: I was born and bred in St. Louis. I went to Duke and graduated magna cum laude with a dual major in economics and German. I got my law degree in 1985 from Washington University in St. Louis.
I worked for a big insurance defense firm in St. Louis, and had the “privilege” to work on the longest-running jury trial in American jurisprudence, Kemner v. Monsanto [a civil suit in which the plaintiffs claimed they were poisoned by dioxin released when a train derailed in Sturgeon, Missouri]. The trial went on for four years.
I came to Texas to oversee litigation for Southwestern Bell, which published The Yellow Pages. In Houston, I met an attorney who is now my wife of 30 years.
Right after the 2016 election, I was on a jury in my opponent’s court, which surprised both her and me. I’ll be honest, she gave appearance of being unable to rule quickly on anything, which needlessly prolonged the case. Her charge to the jury contained two fundamental errors. That kind of mistake will not happen in my court.
I will rule timely, more likely than not at the time of a hearing if possible. There’s a real problem with delays in the Houston courts. I will have more frequent but shorter dockets, so attorneys and their clients won’t have to wait around for three hours for a five-minute hearing. I will also have frequent status conferences to ensure that the parties are moving their cases forward. I’m very much in favor of what the federal courts do with prediscovery motion conferences, so that only real discovery disputes need to be argued and ruled on. We could get rid of a lot of stuff the court shouldn’t have to deal with.
Q: What do you wish you’d been taught in law school that you were not?
A: How to practice law.
I teach insurance coverage at South Texas College of Law. I tell my students the one downfall of law school is that they really don’t teach you how to be a lawyer. The purpose of law school is to teach you how to think like a lawyer. As a result, a lot of baby lawyers struggle with the practical realities of having a practice – of the job. That was the biggest struggle for me when I was a novice.
As experienced attorneys, we should do more to teach young lawyers how to be lawyers, how to be responsive to their clients’ needs and really listen to them, how to deal effectively with opposing counsel and with witnesses, how to conduct yourself in front of a jury, how to work well with the other lawyers in your firm. It’s a lot to learn. I advise students to sign up for as many practice courts as they can.
Q: What are one or two of the most significant cases you have handled as a trial lawyer?
A: I’ve handled a bunch of large cases. I was part of the defense team in Bleeker v. Trinity Universal Insurance Co., in which a jury in Hidalgo County awarded the plaintiffs $79 million. That was reduced on appeal to $13 million and, eventually, to zero by the Supreme Court of Texas.
I tried a civil case in Hidalgo County representing an 18-year-old kid who was hauling produce for his grandfather, somehow veered off the highway and ran into back of an 18-wheeler. His fiancé was in the vehicle with him and, tragically, she was killed. It was gratifying to be able to guide him through the legal process, which, after the loss of his fiancé, added insult to injury. And we got a defense verdict for him.
Q: How often do you practice before the civil courts in Harris County?
A: Probably 60% of my practice is in Harris County, but, like most lawyers, I don’t get an opportunity to “go to court” very often anymore. The system is set up for resolution, which I don’t have an issue with.
Q: How many cases have you tried before a jury?
A: I’ve been first or second chair or appellate counsel in more than 15 trials and first or second chair for more than 20 appeals.
Q: What changes would you like to see in the courthouse, and what would you do to promote change if elected?
A: As I said earlier, delays are an issue. There are certainly exceptions, but a lot of current judges think it’s a part-time job. They should 1) prepare adequately for hearings (to keep things moving), 2) rule expeditiously on all pending matters, and 3) assist the parties in getting ready for trial if they can’t get a case resolved.
I once had a case in Judge Palmer’s court, and we needed a continuance. We had eight defendants, and trying to schedule all eight of them for deposition was worse than herding cats.
She granted the continuance, but then she set the case for a year and a half later. Thank goodness we got the case resolved, because it would have been pending for five years before we ever got to trial. That shouldn’t happen.
Rule expeditiously. Hold regular status conferences – when you do, it’s amazing how quickly the parties can get things done. Try to make sure every case is heard within 18 months, in keeping with the Supreme Court’s guidance.
Q: What else sets you apart from your opponent?
A: In 2016, her campaign platform was that her job was to “equalize justice.” She hasn’t said that publicly this time around, but she hasn’t backed off from it, either.
That’s an issue. The job of a trial court judge is to enforce the law as written, not to act like a member of the Legislature. If judges stuck to that philosophy – and put in a full day for a full day’s pay – things would move much quicker.
We have a problem in Texas, and I don’t know how we solve it. We need to take politics out of the courthouse. I don’t think partisan elections are the best way to choose judges, and what’s happened in Harris County is evidence of that. When people vote by party, there’s a tendency to throw the baby out with the bathwater. Some very good Republican judges lost in 2016 and 2018 – just like some good Democratic judges lost in 2010.
Maybe getting rid of straight-ticket voting will help.
Missouri has the appoint-and-retain system, which other states have adopted. But there are serious issues with that method, too. For one thing, appointing judges can be just as political as partisan elections. And once a judge is appointed, you can’t get rid of them. They almost never lose a retention vote. One judge in Missouri was in jail and still got retained.
It shouldn’t matter whether a judge is a Republican or a Democrat. What matters is: Are you qualified? Will you be fair? Are you willing to put in the time it takes? And will you stick to your role as an umpire, calling balls and strikes?
Q: There is a significant problem with (a) jury attendance and (b) jury pool diversity. Only one in five people summoned to jury service shows up. And those who do aren’t always a representative cross-section of the community. How is this impacting the administration of justice in Texas, and what can be done about it?
A: You can lead a horse to water, but you can’t make it drink. I don’t know that the lack of enthusiasm among residents who get summoned has any real effect on the administration of justice. My wife tries a bunch of insurance cases in-house, and she says she hasn’t seen a lot of difference in jury panels over time.
Still, it’s a civic problem when citizens won’t fulfill their obligation to participate in the system. As a practical matter, you can’t compel them to show up, although we try. I don’t know that as a trial lawyer or judge you want someone sitting on a jury who doesn’t want to be there, who just wants to get done with it as fast as possible.
Certainly, I’d like to see every panel perfectly represent the citizenry of Harris County. But I don’t see how we can ensure that. We can’t round up everybody who was mailed a summons and tie them to a chair at the courthouse. We may have as good a system as we’re going to get: You send out a bunch of summonses, then you keep your fingers crossed that enough good people show up.
Q: Is there anything else you would like voters to know?
A: I just want to stress again that choosing judges shouldn’t be political. The position is way too important for that. More people will interact with a judge at some point than with their state representative, their congressional representative or, certainly, the president of the United States.
We have to have people who are qualified to do the job, and I would like every voter in Harris County, regardless of their political affiliation, to give me serious consideration.
Editor’s Note: Candidate responses may be edited to comply with Texas Lawbook style guidelines.
Publisher’s Note: This coverage of the 2020 judicial elections by The Texas Lawbook is being made available outside our paywall courtesy of Thompson Coburn and Carter Arnett.