Dallas trial lawyer Bill Brewer should not have been sanctioned by a Lubbock judge for conducting a survey or poll months before a trial because there “is no evidence” that the controversial attorney acted in bad faith or tried to improperly tamper with the jury process, the Texas Supreme Court ruled Friday.
The decision by the state’s highest court is a huge victory for Brewer, who is the top lawyer for the National Rifle Association and has a reputation for scorched-earth litigation tactics.
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.
Brewer then appealed to the Texas Supreme Court, which handed him a complete victory Friday.
“Brewer did not disobey any court order, knowingly or otherwise,” Justice Eva Guzman wrote for the majority. “The trial court did not find that Brewer violated any disciplinary rule, nor is there evidence Brewer knowingly violated any disciplinary rule.”
“Neither is there evidence that Brewer knew, or even had reason to believe, that a randomly generated database of roughly 7% of the county population would result in any touch points connected to this case, let alone many,” Justice Guzman wrote. “At worst, Brewer was lax in failing to ensure the survey was not totally random by securing the exclusion of case-related individuals from the survey database.”
In making its ruling, the Texas justices ignored the pleas of the Texas Trial Lawyers Association, the Texas Association of Defense Counsel and the Texas Chapter of the American Board of Trial Advocates who filed an unprecedented joint amicus brief asking the court to uphold the sanctions against Brewer.
Dallas trial lawyer Brian Lauten, who represented the organizations at oral arguments last year, pleaded with the justices to uphold the lower courts’ decisions because the sanctity of the jury system was at stake since false information was being sent through what he called a “push poll” to potential jurors.
“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,” Lauten argued. “Mr. Brewer isn’t here about the sanction. He wants to keep doing this. No one wants this. This is an incredible threat to the civil justice system.
In her 40-page opinion, Justice Guzman disagreed.
“We hold the sanctions order in this case cannot stand because evidence of bad faith is lacking,” she wrote. “Even if the survey Brewer commissioned was not flawlessly designed or executed, the record bears no evidence that Brewer, individually or through his agents, developed or employed the survey for an improper purpose.”
Justice Guzman wrote that there was no evidence that any individuals or groups were targeted by the survey.
In a separate opinion, Justice Jeffrey Boyd took issue with the majority’s wording that there was “no evidence” in the case against Brewer.
In an 11-page opinion, Justice Boyd pointed out the “the trial court specifically found, and the court of appeals agreed, that some of the survey questions, which the attorney personally reviewed and approved, were designed to influence or alter the opinion or attitude of the person being polled.”
“I have repeatedly documented my view that ‘no evidence’ should mean ‘no evidence,” wrote Justice Boyd, stating that he agreed that the $177,000 monetary sanction should be reversed.
But he wrote that his colleagues erred when they took away the trial judge’s authority to determine that Brewer should be required to attend ethics training.
“Before today, this court has never held that trial courts can only exercise their inherent authority to sanction a party or attorney if they first find that the party or attorney acted in ‘bad faith.’ Globally applying a bad-faith requirement to all inherent-authority sanctions for all sanctionable conduct unnecessarily handcuffs our state’s trial courts and undermines the very reason they possess inherent authority in the first place,” Justice Boyd wrote.