As early voting in Texas comes to a close this week, Houstonians might undergo a sense of déjà vu as they select their preferred judicial candidate for the 61st District Court: Their choices are the same as they were during the 2016 general election.
Democrat Fredericka Phillips and Republican Erin Lunceford are opponents once again, but this time their roles have reversed. Phillips is the incumbent candidate this year, while Lunceford was the incumbent in 2016.
Lunceford was appointed to the 61st District Court in 2015 by Gov. Greg Abbott to fill a vacancy, but during the 2016 election Hillary Clinton carried Harris County, leading to a Democratic sweep in the judicial races and others down the ballot. Phillips won the election by roughly 51% to 49%.
Phillips is former vice chairwoman of the Texas Democratic Party. Before taking the bench, the South Texas of Law graduate spent 14 years practicing an array of civil law, including real estate transactions, property disputes, business litigation and contract disputes, personal injury and medical malpractice defense, and collections work.
Currently at Norton Rose Fulbright, Lunceford specializes in defending healthcare clients in premises and medical malpractice cases. She has also worked on disputes involving contractual, Deceptive Trade Practices Consumer Protection Act and employment issues. She has tried at least 38 cases before a jury and has handled 40 appeals.
Lunceford says she’s running again because she thinks she has a better shot this time around with the elimination of straight-ticket voting. Lunceford is a vocal critic of the voting method; she testified in support of eliminating it during the 2017 legislative session.
Lunceford also says her “service is needed in order to restore experience, hard work and integrity to the court.”
Phillips did not respond to multiple requests for an interview or to fill out a written questionnaire prepared by The Texas Lawbook, but she told Texas Lawyer in September that her rulings have been “consistently upheld” in the appellate courts, unlike her opponent, “whose rulings had been reversed multiple times.”
Lunceford disputed that statement and provided The Lawbook with statistics of her reversal and affirmance rates during her 17 months in office versus Phillips’ during her first three years on the bench.
According to Lunceford’s statistics, only four out of the 44 cases appealed from her court were reversed, compared to Phillips’ record of seven reversals of 73 cases that were appealed during her first few years on the bench. Lunceford claims that appeals courts affirmed 27 of her rulings, while the courts have affirmed 22 of Phillips’. Fifteen of Phillips’ appealed decisions are still pending, Lunceford pointed out, which could cause her affirmance rate to “go down significantly.”
“These statistics show absolutely that Judge Phillips’ statement in the Texas Lawyer article about my rulings getting reversed more than hers is a false statement, as the reverse is true,” Lunceford said.
Like they had in 2016, respondents to a 2020 judicial preference poll conducted by the Houston Bar Association indicated that they prefer Lunceford to win over Phillips — Lunceford received more than double the number of votes than Phillips. In the HBA’s 2019 judicial evaluation poll, 39% said Phillips needs improvement in various areas, including following the law, ruling timely and decisively, using attorneys’ time efficiently and demonstrating impartiality. Because the HBA only conducts its judicial evaluation polls during odd-numbered years (and because Lunceford had only been on the bench for four months by the time the HBA released its 2015 results) she was never included on one of these polls.
Lunceford’s answers to the Lawbook questionnaire are below.
Erin Lunceford
Q: What led you to practice law?
A: I really enjoyed research and writing in college, and I wanted to combine that with my love of speech and drama competitions from high school and college; therefore, going to law school and becoming a trial lawyer was a dream. I actually loved law school and have truly enjoyed practicing trial law.
Q: You’re in a unique position in that you’ve served as a trial judge once before (in the same court you’re seeking now) and you’ve entered a judicial race twice before. What did you learn from those previous experiences, and what compelled you to give serving on the 61st another go?
A: While I really enjoy practicing law, when I was appointed judge I was able to use my extensive trial skills to preside over cases and I literally found my calling. While it took a few months to move from the role of advocate to the role of a trial judge, I set out to become the kind of trial judge that every lawyer wants. I would make sure that I read all submissions before law day docket so we could have legal discussions about the various motions. I would offer to hold depositions in particularly contentious cases in the courtroom so that I could rule on objections in real time, thus saving the parties from having to file a motion to compel. Because I am an experienced trial lawyer, I understand how important it is to make sure that parties are informed of trial settings early and make them stick to them. I think the experience of trying 38 jury trials prepared me well for serving as a trial judge.
As for my experience campaigning, I think that I have learned not to take things too personally and try to meet as many people as possible in all areas of Harris County. I decided to run again because after my loss in 2016 by just over 30,000 straight ticket votes, I was the only judge to testify for the elimination of straight ticket voting in Texas. Therefore, I believe that I needed to put my name in the hat to return as Judge of the 61st.
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 have tried over 38 jury trials and handled 40 appeals, including arguing to the Texas Supreme Court. For the 16 years prior to being appointed Judge of the 61st in 2015, I practiced law with the insurance defense firm originally known as Munisteri, Sprott, Rigby, Newsom. When I left, I was managing partner and the firm was called Sprott, Rigby, Newsom, Lunceford, Quattlebaum & Messinger. I have handled mostly tort cases but also cases involving contractual issues, DTPA and employment issues. I am board certified in personal injury trial law and am a member of the American Board of Trial Advocates and a fellow of the College of the State Bar. I have extensive trial experience that makes me uniquely qualified to serve as a trial judge.
Q: What do you wish you’d been taught in law school that you were not?
A: I wish I had been taught about the importance of completing a judicial clerkship because I think that experience would have been beneficial to my goal of serving as a trial judge.
Q: What are one or two of the most significant cases you have handled as a trial lawyer?
A: Licatino v. CHRISTUS Hospital St. Elizabeth, 352 S.W.3d 556 (Tex. App.—Beaumont 2011, no. pet.) – This was the first case to be tried under the new willful and wanton emergency room care standard in Texas. While I lost the jury verdict, I won the appeal and the case was reversed and rendered by the Ninth Court of Appeals.
Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658 (Tex. 2010) – While my name does not appear on this decision, I filed the motion for rehearing in this Supreme Court appeal that resulted in the court reversing their decision and rendering judgment for our client, St. Luke’s Episcopal Hospital, and establishing the rules about when a case is a medical liability case and when it is a simple premises liability case.
Q: How often do you practice before the civil courts in Harris County?
A: Every day. Almost all my cases are in Harris County District Court.
Q: Have you ever practiced before your opponent? If so, what was good and bad about the experience?
A: Yes, I have argued a few motions in front of Judge Phillips, and I was able to get her decision reversed in a recent case, Hall v. Davies, 598 S.W. 3rd 803 (Tex. App.—Houston [14t Dist.] 2020, no pet.). I found the experience to be strange because she does not ask any questions and just takes every motion under advisement, which makes it difficult to determine what a lawyer should do in her court.
Q: What kind of change would you like to see in the courthouse, and what would you do to promote change if elected?
A: I think that some of the changes that were necessitated by COVID-19 should remain in place, like remote hearings. This saves clients money and lawyers time in traveling to the courthouse. I would also advocate for greater transparency in the statistics of the individual courts by publishing these for each court so that lawyers and others could see what judges are actually moving their dockets and trying cases.
Q: What kind of feedback do you hear from fellow lawyers about your opponent and how would you do a better job?
A: Unfortunately I hear that she is frequently late to docket day (usually starts at 9:30, but she sometimes doesn’t show up until 10:30 or later) and cuts her days short. She has also unilaterally canceled docket which requires the clerks to reschedule all the hearings for that day. She also does not hold many hearings, even by Zoom, which is not fair to litigants and their lawyers. When asked why she does this during a recent endorsement interview she stated that 99% of contested motions could be decided by submission (written only). Finally, even before COVID-19, she has not presided over many cases. In the three years she has been on the bench she presided over only 17 jury trials. While she blames this on Harvey and the courthouse sharing, the judge she shared her courtroom with, Judge Weiman, presided over 47 cases during the same time period. She is obviously just not comfortable presiding over trials. I would do a better job by showing up on time for hearings, holding hearings on multiple days instead of only one a week and setting cases for trial.
Q: What else sets you apart from your opponent?
A: I am an experienced trial lawyer who is board certified in Personal Injury Trial Law. As a lawyer I have tried over 38 cases to jury verdict, and Judge Phillips has never tried a jury trial as a lawyer. In the 17 months that I served as Judge of the 61st I presided over 30 jury trials and ended my service with the lowest inventory of cases of all the 24 civil district judges. I was also preferred over her in the 2016 HBA Bar Poll by 75% of the respondents. Finally, during my service I was never the subject of a judicial conduct complaint or forced to be recused from a case, in contrast to Judge Phillips, who was recused on a case due to her showing favoritism to a litigant.
Q: This isn’t your first time running against your opponent. What were your takeaways from the 2016 election? Why is now the time for Erin Lunceford to return to the 61st?
A: During the 2016 election I really never saw Judge Phillips or interacted with her much. I had all the major endorsements in 2016. I lost due to the straight ticket voting. In Harris County there were approximately 70,000 more Democrat straight ticket votes than Republican. However, I only lost by a little over 30,000 votes, so I was able to make up some of this straight ticket vote difference. I believe that it is time for me to return to the 61st because there is no straight ticket voting and my service is needed in order to restore experience, hard work and integrity to the court.
Q: One of the biggest challenges civil courts are facing right now is the backlog of jury trials due to COVID-19. What would you do to combat that challenge?
A: I would work hard to make sure that all cases have current docket orders and trial settings and work to move those cases along to trial. Cases need to have trial settings to make sure that they proceed to mediation and conclusion. I would also hold hearings on as many days as possible to move the backlog, and not just have them on one day as the current judge does now. I would work full days and as much as is necessary to reduce the backlog.
Q: There is a significant problem with (a) jury attendance and (b) jury pool diversity. Less than one in five people summonsed to jury service shows up. Those who do show up do not seem to be 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: I think that the new video produced by the courts is a huge step in the process of assuring potential jurors that there are safety measures for COVID-19 in place. I also think that it is the responsibility of judges to go out into the community and educate the public, in all cross-sections, about the importance and necessity of jury service. I have participated as a speaker in the HBA Importance of Jury Service program for many years, and we need to recruit more judges and communities to participate.
Q: No matter what you say here, some voters will vote against you simply because they’re straight ticket voters and you’re on the wrong side of their ballot. There is another group of voters who are inclined to do the same, but could be convinced otherwise. What would you say to them? Why should they vote for you even if your political party doesn’t match their values?
A: I do not believe that judges should be partisan because a good judge is one that is an experienced lawyer with excellent judicial temperament and work ethic. Voters should look at the experience of individual judicial candidates because that will make a big difference to them in the long run. As a judicial candidate, I cannot comment on the partisan issues or anything that the remainder of what the political parties espouse. That would be a violation of judicial ethics. I can tell you that I will follow the law as written, which is what the trial court judges are supposed to do. I would simply encourage voters to look at my experience as a lawyer, judge and community member.
Q: Is there anything else you would like voters to know?
A: I am a long time Harris County resident, married to a native Houstonian, Mike Lunceford, for 36 years. We have raised two children in HISD schools and believe in community service, as is evidenced by our volunteer activities in the schools and scouts and my husband’s eight-year service as a trustee on the HISD school board.
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.