When more than 50 Texas Democratic senators fled the state in 2003 to deny the senate a quorum over a controversial Republican redistricting bill, they called Charles “Chip” Babcock, one of the finest First Amendment trial lawyers famously known for representing talk show host Oprah Winfrey in a six-week trial in Amarillo.
Babcock, who recently concluded a 25-year run as chair of the Texas Supreme Court Advisory Committee, agreed to represent the Democrats in a mandamus action filed by then-Gov. Rick Perry.
During the case, one of the senators said, “We just have to say, Mr. Babcock, that for a Republican lawyer like you to represent us really means a lot to us,” Babcock recalled in a January interview with The Texas Lawbook.
Babcock, a lifelong Democrat, responded: “Well, listen, if you think I’m a Republican lawyer, and that’s why you hired me, maybe I should get out now.”
Some of the senators couldn’t believe a Republican-led court would appoint a Democrat to chair the committee. Babcock tried to assure them otherwise.
“The courts just don’t work that way,” Babcock told The Lawbook. “In my opinion, judges may make bad rulings or good rulings or rulings we disagree with, but it’s not partisan. It’s just the way they see it.”
Babcock, who is currently defending far-right cable network One America News against a defamation lawsuit by Dominion Voting Systems, shared these and other thoughts from his 40-year legal career in the following interview, edited for length and clarity.
The Texas Lawbook: What is keeping you busy right now?
Chip Babcock: I’ve got a case where I’m defending a conservative news cable channel called One American News Network. They’ve been sued by Dominion Voting Systems, the same company that sued Fox News and got an almost $800 million settlement. That case is quite active right now, so I’m keeping pretty busy with that.
Lawbook: What would you point to as some of the biggest trials that you’ve handled?
Babcock: Well, it depends on how far back you want to go. People often point to the Oprah case in Amarillo that I tried for six weeks.
I just tried a case and got a decision a few weeks ago for a district judge in Harris County, Ursula Hall. She was facing some very serious accusations brought by the Texas Commission on Judicial Conduct, and they had an assistant AG assigned to the case to try it. We tried the case, and we just got a ruling from the court, and she was exonerated. I felt good about that. She’s a really fine judge.
I defended Dallas Cowboys owner Jerry Jones last summer, along with my colleague and partner and wife, Nancy Hamilton. Our daughter saw a picture of Nancy coming out of the courthouse with Jerry, and Nancy had on her aviator sunglasses, and our daughter said, “Mom, you look badass.”
Lawbook: Did your daughter say the same about you?
Babcock: No, she didn’t call me a badass. She probably calls me some other things, but not badass, to my face, anyway.
Lawbook: Are there one or two high profile public matters that you are currently involved in that we can highlight?
Babcock: Obviously, the OAN one. There are a few other cases that are currently in administrative proceedings that are private.
Lawbook: What news developments or trends in law are you keeping an eye on?
Babcock: The proliferation of defamation cases. I’ve been doing this long enough so that I’ve seen several peaks and valleys.
I was telling a client this morning about a case that I tried years ago for the Dallas Times Herald. They had a no-settlement policy, and so I was in trial in a defamation case, libel case, for them, and the plaintiff’s lawyer came up to me maybe seven or eight days into trial, and said, “You guys are kicking our butts. How about if we dismiss the case with prejudice, would you pay our court costs, a couple thousand dollars probably?” So that night, I met with the publisher, laid it out for him, and he said, “You tell him that we’ll let him dismiss if he pays our court costs,” which obviously didn’t go anywhere. So we tried the case to a jury. The jury found against us and hit us for more than $300,000, and we appealed and won on appeal. So, everything turned out fine, but the impact of that was that The Times Herald just didn’t get sued for years because the word was out: If you want to sue these guys, you better get ready for the long haul, because they won’t settle. Well, I was practically out of business for several years. There was that time period when media companies would not settle, and that depressed the number of defamation cases.
So we went through that valley, and then it started to come back a little bit. The media landscape changed. Media companies no longer had a lot of money to pay guys like me, even if they had insurance, and the insurance companies were less willing to pay out a whole bunch of money, so cases started to get settled. But then came the anti-SLAPP statute in Texas [in 2011]. That had the effect of wiping out a whole bunch of defamation media cases. But then the anti-SLAPP statute started to be interpreted less liberally, coupled with some big national settlements, like the Fox News case.
Right now, the defamation, libel and slander-type cases are back with a vengeance. There’s a lot of litigation. You’re seeing litigation from people you never used to see, like public officials. Because of New York Times v. Sullivan, public officials have a very hard time of recovery. But now you see Trump sued ABC and [former congressman Devin] Nunes sued the media, so that’s a trend for sure.
Lawbook: What do you think about the ABC settlement? There was some concern that taking the ABC case all the way might have threatened to upend New York Times v. Sullivan. What are your thoughts?
Babcock: A long time ago, I won a confidential source case in the Fifth Circuit. The other side took it up to the Supreme Court, and somebody said, “You ought to settle with them to preserve this ruling in the Fifth Circuit.” I said, “If I’m representing the overall good, then maybe I do that, but I’m not. I’ve got a client, so we’re going to play this out until the end.” I’m reminded of that a little bit. You have to take care of your client. You can’t be worried about the effect it’s going to have on other people. If New York Times v. Sullivan is going to get overturned, it’s going to happen. But you can’t worry about it as the lawyer. Maybe the client can. Maybe Disney or ABC can worry about it, but I can’t.
Lawbook: What is a trial that you were not involved in, that you wish you had been?
Babcock: There was a case sort of at the tail end of the life of the Times Herald. There had been a fierce newspaper war between The Dallas Morning News and The Times Herald. Jackson Walker had actually incorporated the Times Herald printing company in 1905, and we had represented them continuously. Well, they had a couple of new owners, and one of the new guys decided that in litigation against The Morning News, they would hire another firm, and they went to trial on it. It was an important case for the survival of The Times Herald, and they lost it. I wish I’d been involved in the case, either to have guided it to a different resolution at trial or to have somehow worked out a resolution between the two newspapers, because they’re both great newspapers. I was hopeful that they would coexist and push each other as they had been for more great journalism.
Lawbook: Do you have any pretrial rituals?
Babcock: Nothing like LeBron James where I get my talcum powder and I slap it together. But I do try to thoroughly investigate the demographics of who I’m going to be trying the case to, both as a demographic exercise in the venue that we’re going to be trying the case and once I know who my panel is going to be. I try to find out as much about the panel as I can under the rules. One of the reasons I’ve had some success is because I have tried to understand the dynamic of the decision makers.
Lawbook: What is your favorite task to handle at trial?
Babcock: I like doing voir dire. I just enjoy talking to the jury. It’s really uplifting talking to them. It reminds you that amidst all this noise and all these politics, we are a country of basically really good people.
Lawbook: And do you have a least favorite task to handle at trial?
Babcock: The jury charge. I try to delegate that to an appellate lawyer or another lawyer on the team. Nancy Hamilton, who’s not only my law partner but also my wife, is very cerebral. She’s really good at charge conferences. I won a case once, I’m convinced, because she spent an entire day with the judge in a charge conference while I sat in the back room and got ready for closing arguments. My opponent had to handle the charge conference and didn’t have time to prepare, so I think maybe my closing was more effective than his.
Lawbook: How do you celebrate after a trial win?
Babcock: Each case is different. I had a case that I tried in Chicago for the Chicago Tribune and two of the reporters on a Pulitzer Prize-nominated series about prosecutorial misconduct — so heavy duty journalism. A Pulitzer Prize-winning reporter and editor and all of the management of the Tribune from the publisher on down, took us out to dinner after we won this case. That was fun. Of course having dinner with Oprah after that trial. She got a bed and breakfast in Amarillo, so I was actually living in the bed and breakfast with her, her staff and my jury consultant, Dr. Phil [McGraw]. She had her own chef. So, it varies, and sometimes you just go home and pour yourself a glass of wine and decompress.
Lawbook: If you were not a lawyer, what career do you think you would have chosen instead?
Babcock: Well, I started out as a sports writer at the Miami Herald and then the Philadelphia Inquirer. Along the way, I did some sports broadcasting. I went to college with Texas Rangers radio announcer Eric Nadel, who was a year behind me in school. I was a sports director of the campus radio station, and I hired him. He and I were on a broadcast team for three years until I graduated. But I think I would have been a writer someway or another, because I enjoyed it.
Lawbook: What am I not asking you that you’d like to share with our readers?
Babcock: There are two things I think I’d like to share.
One is, I’ve been around a lot of judges — mostly good judges, some not so good. But the good ones far outnumber the bad ones. And this business of referring to a judge by the politician that appointed them or by the party that they are forced to run under the banner of is very destructive, because I don’t see that partisanship in the day-to-day operations of the judiciary.
Lawbook: Do you think it’s time for Texas to do away with partisan judicial elections?
Babcock: Oh, for sure. The governor appointed me to a commission a couple of years ago that studied judicial selection in Texas. It was a very good, smart group of people. We had hearings all over the state, and my conclusion was that we should not elect our judges. We ought to go to a system whereby all the judges that are currently on the bench are grandfathered into a system that we evolve to where the governor makes an appointment, but each appointment must be approved by two thirds of the Senate. And then after a term of four or six years, the judge has to run in a nonpartisan retention election. That is, they have to stand for election, but there’s no opponent, and they don’t run as a Republican or a Democrat. They just have to be retained. Even that is subject to abuse but far better than the system we have now, in my opinion.
Lawbook: What was the second thing you wanted to share with our readers?
Babcock: About five years ago, I quit referring to people by their race unless it was directly related to something I was talking about. We’ve got to admit that there is still racial prejudice in our society. It’s better than it used to be, for sure, but we still have it. I heard a lawyer the other day from another law firm say, in a proud way, “We just hired this Black lawyer, very articulate.” Give me a break. You’re not going to say, “We just hired this white lawyer, very articulate.” But he said it in a way that I think is just the opposite of buying into diversity. It’s furthering the differentness of somebody.