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JULY 2008

Low-profile judge thrust into the spotlight
(click to read more)

Justice's Wife Accused Of Arson Appears In Court
(click to read more)

VIEWPOINT: "Knowing the devil"
(click to read more)

Former Paralegal Sues Laminack, Firms Alleging Wrongful Termination
(click to read more)

Ralph Nader blasts the Texas legislature
(click to read more)

Gov. Perry Reappoints Enoch to Judicial Districts Board
(click to read more)

High court judges ask GOP to turn out vote
(click to read more)

Court agrees no cap was set on lawyer's fees .
(click to read more)

TxDOT resists requests for wreck data - Agency sues over TV station's pursuit of wreck information that's available online.
(click to read more)

HOTZE: GOP needs to back the common man
(click to read more)

Alvin merchant sues AT&T over yellow page ad
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Suits in civil trial from BP plant blast settled
(click to read more)

Court: $15K for folks of drowned boy was too rich
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Not just AGs sicking outside counsel on big business
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Lawyer Wins Fee Fight With Former Client at Supreme Court
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Second asbestos suit filed on pipe-fitter's behalf names 19 defendants
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Clay Robinson: Builder doesn't let housing slowdown cramp fundraising style
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El Paso legislators spend $90,000 on campaigns despite lack of challengers
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Editorial: Jury duty plays a crucial role in our justice system
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Get a ticket, and lawyer solicitations besiege you
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Show Me the Money
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LETTER: Lawsuit reform
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LETTERS: Rebutting 'crooked' article
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McAllen reaches settlement with police union
(click to read more)

Colossal class action hits Texarkana
(click to read more)

MANUFACTURED LAWSUITS:The cost of crooked lawyers
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Kroger Co. v. Persley
(click to read more)

AT DEADLINE
(click to read more)

Trial lawyer's TV ads seek people affected by heparin
(click to read more)

PSB response to stormwater lawsuit: City has authority to delegate
(click to read more)

Coach plans to take libel suit to supreme court
(click to read more)

Appeal in city suit is rejected
(click to read more)

Red Oak Gas to challenge board of appeals decision
(click to read more)

Editorial: Texas Supreme Court wrong on ‘demon’ case
(click to read more)

Texas SC justices face ethics hearings
(click to read more)

PREVIOUS MONTHS

June 2008 Articles [click here]

Low-profile judge thrust into the spotlight
Southeast Texas Record
July 31, 2008
By: Scott Sabatini

TEXARKANA , Ark. (Legal Newsline)- Texarkana , home to perhaps the largest class action lawsuit in U.S. history, is more well-known for being divided down the middle by the Texas and Arkansas state line. The city is home to roughly three-fourths of Miller County 's 40,000 residents, according to 2000 census data. Texarkana , Texas is legally its own city, with its own state government, but it does share a relatively famous post office that straddles the state line. Inside, a person can stand with one foot in each state.

Just as the post office sits prominently in the center of the two Texarkana 's, Miller County 's Eighth Judicial District South Judge Kirk Johnson now sits prominently at the bench of a class-action lawsuit that is garnering national attention and the watchful eye of tort reform lawyers.

As of last count, Texarkana plaintiff attorneys in the case known as Colossus, had settled for as much as $300 million. With 581 insurers originally named in the suit, the litigation has hardly begun.

The case centers around a complaint alleging hundreds of insurance companies worked with three software companies to undervalue auto claims. A program called "Colossus," the plaintiffs argued, allowed insurers to undervalue claims, which the plaintiff contends is a conspiracy to commit fraud.

Though Johnson has maintained a relatively low-profile, his role as the judge in the case has begun to attract attention beyond the city limits. Tort reform experts believe the case is fast becoming a poster child for all the reasons the Class Action Fairness Act of 2005 was needed.

"This is your typical sort of class-action shakedown," said Jim Copland, director of The Manhattan Institute for Policy Research. "The discovery costs are massive, that's what this is really about."

The case landed before Judge Johnson just after Texarkana-based lead plaintiffs' attorney John C. Goodson filed the suit on Feb. 7, 2005 against Computer Science Corporation's software, Colossus, and every insurance company that uses it.

"It is important to realize that this suit was filed the day before the Class Action Fairness Act of 2005 was instituted," Copland said.

The Class Action Fairness Act of 2005 now pushes legislation like Colossus into the federal courts. Plaintiff lawyers typically preferred local courts and local juries who "are traditionally sympathetic to the local plaintiffs over big businesses," Copland said. All of which places Judge Johnson squarely in the spotlight of the hundreds of defendants named in the suit with hundreds of millions riding on its outcome.

From the bench Johnson first took the bench in 2002 after serving as Miller County 's District Court judge. He soundly defeated Demaris Hart with 61 percent of the vote, according to the state election documents.

Hart said that despite running against Johnson, she is a fan of his work. "It was an open seat, and we're both the same age," she said of her decision to run in 2002. "It was just the right time."

Hart has become a big fan of the judge. "He's done a whale of a job," she said. "He does what I would have done and that is go to work early. He's ready to be on the bench at nine."

Hart mentioned Johnson's success with class action lawsuits, but when asked more she declined comment. "I'm just a divorce attorney," she said. "I don't know diddly about that."

Before taking his post on the bench, Johnson worked as a prosecuting attorney. Prosecutor Brent Haltom said that experience, as well as his tenure on the district court makes Johnson highly qualified.

"He's a good judge, he's fair and treats everybody courteously," Haltom said. "He's always very knowledgeable in the law. That helps make correct decisions on the bench." Haltom said Johnson's work on the class-action suits is known within the legal community, even though as a prosecutor he has no direct knowledge.

"Those cases have made headlines," Haltom said. "Judge Johnson has participated in them and did a good job." The 59-year-old judge is by most accounts well-known and well-liked, a fixture in Texarkana . "I don't remember him ever having any opposition at all," said Jerry Sparks of the Texarkana Chamber of Commerce. "That in and of itself is normally a very positive thing around here."

Sparks said Texarkana has very little elitism, calling the social strata "very flat," but that Johnson can be found in the same circles of other judges, business leaders and politicians. "There is a group who are going to be fairly well informed," Sparks said, "and know the folks who play golf, or go to the Presbyterian church or one of three or four other things that are popular around here. It's not a small group, but folks know each other."

Since taking the bench, Johnson has heard a wide variety of cases, everything from rape, robbery and million-dollar lawsuits. In 2007, Johnson sentenced a man for an aggravated robbery charge. The local newspaper, the Texarkana Gazette, reported that the suspect walked into a penny arcade, by his own admission drunk and on drugs, and demanded money. An attendant, who refused to give the suspect money, pulled a pocketknife and shoved the man out of the door. Johnson gave the two-time felon 40 years in prison.

Another Johnson verdict that made headlines came when a man wanted on rape charges tried to fake his own death. Johnson, according to a story in the Arkansas Democrat Gazette, challenged the suspect in court, getting him to admit that he didn't jump off the bridge as his wife and friends reported to police. He sentenced the man to a total of 35 years in jail.

"Even if I gave you 400 years, the harm caused by what you have done to her can never be undone," Johnson said regarding the rape of the victim.

Miller County Sheriff Linda Rambo, like Sparks , has been in Texarkana for more than 25 years. Both say they have known Johnson from a distance for all of that time, though not well.

"I hardly ever see him," Rambo said of Johnson. "I know he comes through, says 'Hello,' and heads to court, but I've know him for a long time." Asked about the relationship between the police and the courts, Rambo said she preferred not to discuss it, though she expressed concern over what she sees in courts sometimes.

"I have learned how to work with (the judges) some," she said. "I'd see some poor sonofabitch in here that's going to rot and I think I ought to see what I can do to make it right."

So it helps who you know, she is asked?

"This is true," she said. "If you know the better people, than to hell with me. But I'm not just thataway, I learned to play the game a little."

Rambo said she can't wait for her term to expire in December because of the demands of the job.

"I will be outta here in December," she said with a laugh, "if the good Lord's willing and the creeks don't rise, and if the creeks do rise I sure as hell can swim."

Class-action suits Sparks is the first to admit that the "sleepy community" of Texarkana is hardly a hot spot for legal news. But he has noticed how in recent years, attention that used to come primarily from the area's federal court has now shifted more to the state court.

Most people are more interested in a murder trial or high-profile divorce, he said. Despite millions in settlements to local law firms, Sparks said the economic impact for the city is minimal.

The Colossus case is not Johnson's first class-action suit.

In 2004, Johnson presided over another class-action lawsuit that was first filed the year before Johnson took his current post. Plaintiffs' attorneys from a Texarkana law firm sued four firms for over-charging clients for costs and expenses paid to third-party travel vendors. The companies settled for $109.5 million, according to published news reports.

Now as Colossus court orders pile up before Johnson, the judge faces criticism from defendants in the case for delaying decisions and over-scheduling of motions. Some defendant motions to dismiss have been pending before the court since 2006. In many ways, Johnson's role in what some have described as the largest class-action suit in history may be the last time such a case could continue in local courts. Johnson, who has built a successful career largely out of the public spotlight, is making legal history -- though his community is probably mostly unaware.

"For the most part," Sparks said, "most of the people aren't going to know anything more about him other than he's been around a long time and he's generally liked."

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Justice's Wife Accused Of Arson Appears In Court
KPRC-TV NBC 2 Houston
July 31, 2008

HOUSTON -- A Texas Supreme Court justice's wife who has been accused of setting a fire that destroyed their home appeared in court on Thursday, KPRC Local 2 reported.

Francisca Medina is accused of setting the fire at their home in the 3500 block of Highfalls Drive in northwest Harris County on June 28, 2007.

Medina went to court to prove she is complying with its orders.

Medina and her husband, David, were both indicted in connection with the fire in January. The indictments were dropped days later and Francisca Medina was indicted on charges of felony arson, felony criminal mischief and state criminal mischief in April.

Attorney Dick DeGuerin said the past months have been hard for the Medinas.

"She's not doing well," he said. "This is a tremendous strain on the family, but we'll get through it."

Medina is scheduled to return to court on Sept. 16.

The fire also destroyed a neighboring home and damaged another, totaling nearly $1 million worth of damages.

The Harris County District Attorney's Office said it does not plan on reindicting David Medina.

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VIEWPOINT: "Knowing the devil"
Daily Texan
July 31, 2008
By: Andrew Vickers

The tradition of secular justice for all may have officially ended on June 27. That's when the Texas Supreme Court ruled 6-3 to overturn the damages awarded to Laura Shubert after she was forcibly restrained and received, according to court documents, "multiple bruises, carpet burns, scrapes and injuries to her wrists, shoulders and back" during an exorcism at her church in Colleyville, a Dallas suburb.

The facts of the case have been cut and dry. According to testimony from witnesses recorded in an opinion written by Justice David Medina on June 8, 1996, 17-year-old Shubert and her brother attended a youth group activity at the Pleasant Glade Assembly of God Pentecostal Church (now called Colleyville Assembly of God) to help prepare for a garage sale at the church the next day. Things were calm until suddenly, "the atmosphere ... became spiritually charged after one of the youth announced he had seen a demon near the sanctuary."

The youth minister, Rod Linzay, gathered the children together and, after praying and anointing for some time, proclaimed that God had given him a vision and that the children could return home safely. The next day, after a Sunday morning worship service in which several of the youth gave testimonials about the spiritual intensity of the night before, Laura Shubert collapsed. The members of the church carried her limp body into a classroom so they could "lay hands" on her in attempts to cure her of an apparent possession.

Shubert claims that she demanded to be freed, but church members restrained her, crossing her arms tightly across her chest and refusing to let her move or stand. According to witnesses, Shubert "clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated and hallucinated." Whether these actions were the cause or the result of the physical restraint remains hotly disputed.

Shubert was released after she said the word "Jesus," but three days later she attended another service at the church during which, according to Linzay, she had another episode of possession. This time, Linzay and his wife directed the other church youth to hold her down in a "spread eagle" fashion, resulting in "carpet burns, a scrape on her back and bruises on her wrists and shoulders," while the pastor of the church held his hand on her head and prayed over her. The church members then called Shubert's parents, who came to collect her and take her out for a meal. Shubert said that during the "episode," she refused to be touched by an older man in the church and was consequently labelled "possessed" again.

After the incident, Shubert experienced frequent nightmares and began seeing a number of psychologists and psychiatrists who documented multiple symptoms of psychological duress. Shubert dropped out of high school, abandoned plans to attend Bible college and perform mission work and suffered from instances of self-mutilation and hallucinations. In November 1996, she was diagnosed with post-traumatic stress disorder and was told she would "require extensive time to recover trust in authorities, spiritual leaders and her life-long religious faith."

In 2002, a lower court awarded $300,000 in emotional damages to Shubert, who has since married and earned a degree in criminal justice. The damages were to be paid proportionally by the pastor, youth minister and other members of the church. On appeal, she was stripped of the damages she had received from being "unable to work" but still retained over $100,000 in damages.

But on June 27, the Supreme Court dismissed even that amount on the basis that adjudicating in, as Justice Medina called it, a "religious controversy" would violate the Supreme Court's precedent against "deciding issues of religious doctrine." According to a scathing dissenting opinion written by Chief Justice Wallace Jefferson, this would give "sweeping immunity" to those who inflict psychological damage in the name of "religious motivation" or "church doctrine." Though the court's decision still leaves room for redress of damages from religious authorities for physical or sexual abuse, those who suffer psychologically at the hands of religious organizations now must do so silently.

The delicate and emotionally charged nature of this case blurs the line between church and state. We'll never know for sure if Shubert was possessed or not, though, because the demon has yet to testify against her. Regardless, victims of emotional and physical abuse at the hands of anyone - or thing - should not be denied the right to seek redress because of religious immunity.

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Former Paralegal Sues Laminack, Firms Alleging Wrongful Termination
Texas Lawyer
July 29, 2008
By Brenda Sapino Jeffreys

A former paralegal at Houston lawyer Richard Laminack's current and former firms alleges the prominent plaintiffs lawyer is a "sexual predator" who once offered her $15,000 to stay with him in a hotel room in Las Vegas over a weekend and once suggested she perform a sexual act on an expert witness to improve his mood and testimony.

Defendants in the suit Angela Robinson filed in state district court in Houston on July 25 are Laminack; his current firm, Laminack, Pirtle & Martines; and the O'Quinn Law Firm, formerly known as O'Quinn, Laminack & Pirtle in which Laminack was partner.

Robinson, a Magnolia woman who worked on fen-phen litigation while employed at the firms, alleges the defendants engaged in mail fraud under 18 U.S.C. §1962 for mailing settlement statements to fen-phen clients that contained overcharges for medical records. Robinson alleges "firm employees would order fictitious medical records" for clients from health-care providers that had never treated those clients, and then the firms added $100 to $150 to the expenses deducted from the clients' portion of their fen-phen settlements for those "fictitious medical records."

Robinson alleges she told Laminack of the "unlawful scheme to defraud thousands of fen-phen litigation clients" but he "told her to be quiet and not inform anyone of this" and he directed the firms to mail the settlement statements containing the charges.

She alleges she was wrongfully terminated under the Texas Supreme Court's 1985 opinion in Sabine Pilot Services v. Hauck for failing to commit an illegal act. Robinson also brings battery and intentional infliction of emotional distress causes of action alleging she was subject to a hostile work environment. She seeks unspecified actual and punitive damages.

"No cause of action under or alleging Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000e, or Chapter 21 of the Texas Labor Code is being asserted at this time against any defendant," she writes.

Robinson, who alleges she worked under Laminack's supervision at O'Quinn, Laminack and at Laminack, Pirtle from May 2002 until her "wrongful termination" on April 14, 2008, seeks unpaid overtime wages under the Fair Labor Standards Act totaling $27,500, plus an equal amount in penalties, plus attorneys' fees and costs.

Laminack, managing partner of Laminack, Pirtle, could not immediately be reached for comment. But Houston lawyer Dale Jefferson, a partner Martin, Disiere, Jefferson & Wisdom, who represents the O'Quinn Law Firm, says the mail fraud allegation is "completely false." As to the allegations of a hostile work environment at O'Quinn, Laminack when Laminack was working there, Jefferson says Robinson never made a complaint under the firm's sexual harassment policy. In 2006, Laminack and Thomas Pirtle left O'Quinn, Laminack to form Laminack, Pirtle & Martines.

"When all the facts come to light, I sure hope the actual facts are reported with the same intensity as the alleged facts contained in the petition," Jefferson says. Robinson is represented by of counsel Spencer Markle and partner Andrew McKinney IV of Houston 's McKinney & Cooper. McKinney referred questions to Markle, who could not  immediately be reached for comment.

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Ralph Nader blasts the Texas legislature
KXAN-TV NBC 36 Austin
July 28, 2008

AUSTIN , Texas (KXAN) -- Independent Presidential Candidate Ralph Nader told an Austin news conference on Monday that Texans have been "cut off at the courthouse doors." 

Nader blamed insurance companies and other corporations for refusing injured citizens their "day in court."  But he aimed his harshest criticism at both Republican and Democrat members of the state legislature for using tort reform legislation to gut consumer protection in the Lone Star State .

Accusing corporations of "greed and avarice," he called on Texas trial lawyers to fight back against legislation that limits damage awards in suits brought against manufacturers, distributors and insurance companies in personal injury cases.

The candidate also addressed national and international issues, calling for:

"A comprehensive, negotiated military and corporate withdrawal date from Iraq "

"A single-payer, Canadian-style, private delivery, free-choice public health insurance system for all"

"A living wage and repeal of the anti-union Taft-Hartley Act"

"A no nuke solar-based energy policy supported by renewable, sustainable, energy-efficient sources"

"A carbon tax to deter global warming

"An end to corporate welfare and corporate crime that has resulted in millions losing pensions, savings and jobs and squandered tax dollars"

"More direct democracy reflecting the preamble to our constitution which starts with ‘we the people,' and not ‘we the corporations"

Nader also called for changes in Texas election law to make it easier for third party candidates to get on the ballot in the state.  He predicted that a third party will eventually mount a strong challenge to Democrats and Republicans in national campaigns, but he said he will not be the one to pull it off. 

The candidate said only a wealthy liberal who can self-finance a campaign will be able to make a dent in the two-party system.

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Gov. Perry Reappoints Enoch to Judicial Districts Board
Office of the Governor, Press Release
July 25, 2008

AUSTIN – Gov. Rick Perry has reappointed Craig Enoch of Austin to the Judicial Districts Board for a term to expire Dec. 31, 2010. The board reapportions the judicial districts as authorized by the Texas Constitution.

Enoch is a past Texas Supreme Court Justice and a shareholder of Winstead PC. He is president of the Appellate Judges Education Institute, and a member of the American Law Institute and State Bar of Texas Public Affairs Committee. He is also a member of the American Judicature Society, Institute for Judicial Administration and Dallas Bar Association. 

Enoch served in the U.S. Air Force Reserves. He received a bachelor's degree and a law degree from Southern Methodist University, and a master's degree in judicial process from the University of Virginia . 

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High court judges ask GOP to turn out vote
Jefferson, Wainwright and Johnson appeal to Republican women to maximize Nov. 4 support against aggressive Democrats
Midland Reporter-Telegram
July 25, 2008
by Bob Campbell, Staff Writer

It used to be that a state judicial seat was safe from election to election -- once a judge, always a judge.

But that truism may no longer necessarily hold, three Texas Supreme Court justices told the Midland County Republican Women's Club Wednesday at Midland Country Club.

All facing aggressive, well-funded Democrats in the Nov. 4 election, Chief Justice Wallace Jefferson, Place 7 Justice Dale Wainwright and Place 8 Justice Phil Johnson called on the more than 200 club members present to help reverse the GOP's turnout doldrums of 2006 and ensure their party's continued statewide dominance.

Jefferson is opposed by 160th District Court Judge Jim Jordan of Dallas, Wainwright by Houston attorney Sam Houston and Johnson by 13th Court of Appeals Justice Linda Reyna Yanez of Corpus Christi .

Jefferson said those Democrats threaten the fabric of the state's legal system because they promise to be left-leaning partisans on the Austin court.

"They've all said, 'The Texas Supreme Court is too conservative and I'm going to make it more liberal,'" said Jefferson . "What is the job of a judge? It is simply to interpret the law and give the power back to the people."

Johnson said he strenuously opposes the Democrats' "activist" approach. "If you pre-judge cases, that means a quota," he said.

"I would be a bad judge if I did that because it would be a violation of my oath of office."

Wainwright said all 42 of Dallas County 's Republican office holders were beaten by Democrats two years ago because 40,000 Republicans who had taken part in the 2002 election there stayed home.

"If only 21,000 of those had voted, we would not have lost a race," Wainwright said. "The Democrats smell blood this year and we have the most contested statewide races we've had in 12-14 years.

"The kind of effort we made in 1993-94, when George W. Bush was elected governor, is what we need this year."

Wainwright said the Republican justices have worked hard enough to earn new terms.

"We wrote 131 opinions last year, which is the most we have done so far this century," he said. "At the Supreme Court of Texas, all of our cases are hard. They filter up and we use our discretion to take the most important."

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Court agrees no cap was set on lawyer's fees .
Southeast Texas Record
July 24, 2008
by Steve Korris

AUSTIN - Business owner Charles Haden persuaded appellate judges to rewrite his contract with attorney David Sacks, but Haden couldn't persuade the Texas Supreme Court to do the same.

The justices ruled in favor of Sacks July 11, finding that Haden introduced no evidence to justify oral interpretation of their written contract.

They reversed appellate judges of the First District in Houston , who concluded that Haden could present evidence of oral agreement to cap Sacks's fee.

Th First District identified a question of fact as to whether the minds of the parties met on a crucial obligation, but the justices disagreed.

A meeting of minds is necessary to form a binding contract, they wrote, but the absence of a fixed total price does not indicate failure to reach a meeting of minds.

Haden retained Sacks in 1997 to appeal a federal court judgment against his business, Haden and Company. Their contract set a rate of $200 an hour.

Sacks sought a $10,000 retainer but agreed to accept $5,000.

Sacks filed a brief seeking relief from judgment and he filed a reply brief. For these he billed Haden $40,304.71, with credit for the retainer.

Haden paid another $5,000. Sacks sued Haden in Harris County district court for the balance of his fees on the appeal plus fees from pursuing the suit over the fees. Haden countersued.

District Judge Gary Block ruled in favor of Sacks. He awarded $30,314.38 plus interest under the contract and $75,887.50 for pursuing the suit.

Block also awarded a $45,000 contingent fee to cover appeals.

On appeal, three First District judges affirmed Block. Sacks appealed to the Supreme Court, successfully.

"Though Sacks did not specify and exact total price for his services, the specified hourly rates confirm that the parties agreed that Sacks would charge and Haden would pay a reasonable price," the justices declared in an unsigned opinion.

"The plain language of the engagement letter demonstrates that Haden agreed to pay Sacks an hourly fee, and that no cap on fees was set," they wrote.

"We have never held that an open ended hourly fee agreement will be enforced only if it expressly states there is no cap on fees, and we decline to do so now," they wrote.

Sacks represented himself. Richard Countiss and Brian Womac represented Haden.

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TxDOT resists requests for wreck data - Agency sues over TV station's pursuit of wreck information that's available online.
Austin American Statesman
July 24, 2008
by Ben Wear, American-Statesman Staff

Officials with the Texas Department of Transportation have sued Texas Attorney General Greg Abbott's office to prevent the release of records about Texas vehicle crashes.

The agency, in resisting the request from a San Antonio television station, cited a 1997 state law designed to shield those involved in car accidents from being contacted by attorneys looking to represent them in lawsuits.

That law says that in order to get the report of a specific accident, a requester must have at least two of these pieces of information: the accident date, the address of the wreck and the names of those involved.

TxDOT had earlier agreed in a compromise to release information to News 4 WOAI and reporter Brian Collister that would include nothing about specific accidents. It's now withholding the entire database.That database lists specifics about all accidents that occur in Texas , including whether alcohol was involved and whether there were deaths or serious injuries.

The department has declined the media request even though the TxDOT Web site includes a page in which anyone can request such data from the agency. A query to that page by the American-Statesman on Tuesday, in fact, yielded an answer about alcohol-related accidents with fatalities in Central Texas within a few hours. (There were 22 in Travis County in 2007, eight in Hays and seven in Williamson.)

"TxDOT itself voluntarily releases the requested information via its own Web site," WOAI lawyers said in a motion intervening in the case between TxDOT and the attorney general in which it calls "nonsensical" the agency's position on the records. "A governmental body cannot voluntarily release information to one requestor and then withhold it from another."

TxDOT, when asked about the case, issued an e-mail statement.

"We need to see if our interpretation of the law is the correct one, and the continuation of this lawsuit will do that," spokesman Chris Lippincott said.

"If Mr. Collister persists in his irresponsible pursuit of the private information of every Texan who has been in a car wreck, TxDOT will continue to fight him in court."

TxDOT last year took custody of the database, which begins with crashes occurring on Jan. 1, 2003, from the Texas Department of Public Safety. The DPS had proposed in 2006 that TxDOT take it over, given that the agency was the primary user of the information. The Legislature in 2007 passed a bill, carried by state Sen. Steve Ogden, R-Bryan, ordering that the database and

86 employees move from the DPS to TxDOT.

Collister made an open records request for the database to TxDOT in January.

Collister says now that he hoped to use it to examine which roads or intersections in the San Antonio area were particularly dangerous, and to do other analyses of safety. TxDOT did not release the information and instead referred the request to the attorney general's office for a ruling, which is standard practice when a government entity thinks that its records are exempt from state open records laws.

The attorney general, in a March 31 opinion, sided with WOAI and said the database was an open record. TxDOT then filed a lawsuit in district court in Travis County to overturn that decision.

In the meantime, a TxDOT lawyer wrote an April 22 letter to Collister saying the agency would release information from the database that is "not personally identifiable," such as names of people involved in the accidents.

The cost to WOAI would be $2,409 for an electronic copy (mostly for computer programming time) and $481,001 if the television station wanted the estimated 4.4 million pages of paper records.

Given the cost, the television station didn't immediately accept that proposal. Lippincott, in his e-mail, characterized that as a rejection of the TxDOT offer.

In late April, after discussions with TxDOT lawyers, the attorney general's office said it had changed its opinion and now agreed that the database did not have to be released. The two sides were prepared to submit a settlement to that effect to the court.

That decision is on hold after WOAI's official intervention in the lawsuit.

Tom Kelley, a spokesman for the attorney general, said: "We got additional information and declined to join the settlement. ... We're trying to resolve this by early August."

Joe Larsen, a First Amendment lawyer from Houston representing WOAI, said the attorney general's office is taking a neutral stance.

"It's TxDOT that's going to be the tough nut to crack," Larsen said.

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HOTZE: GOP needs to back the common man
Memorial Examiner (also published by other Houston Community Newspapers, including West University Examiner, Bellaire Examiner and River Oaks Examiner)
July 23, 2008
by STEVEN F. HOTZE

When Ronald Reagan first appeared on the national scene, the mainstream Republican establishment opposed him.

Reagan advocated free enterprise, limited government and tax cuts. He viewed government as the problem not the solution. The corporate interests that dominated the political arena and opposed small businesses did not want Reagan and his conservative movement to upset the cozy relationship which the large corporations had developed with government.

Today, the Republican Party has squandered the legacy of Reagan and has allowed itself to once again become identified with corporate interests rather than small business and the common man. It is viewed as the party of Wall Street.

The tort reform movement provides an example of how many Republicans kowtow to corporate interests to the detriment of the individual.

A tort is a civil wrong which causes an injury for which an individual may receive a legal remedy. If you are injured in a car accident because of the negligence of another driver, then you have the legal right to be compensated for the damages which you incurred.

Likewise, if you are injured by a company's defective product, then you have the legal right to be compensated for your damages. If the company knew the product was defective but continued to sell it anyway, then you may seek additional punitive damages that punish the company for its outrageous behavior.

Corporations desire to limit their liabilities so that they will not be required to pay in full for damages which they may have negligently or purposely caused. This is accomplished by passing legislation to limit the amount of compensation for damages which an individual may receive in a lawsuit.

The purpose of tort reform is to protect large corporations, like insurance and pharmaceutical companies, from legitimate claims made against them by individuals like you.

GlaxoSmithKline, a pharmaceutical company, created and patented the antidepressant Paxil, which received FDA approval in 1992. GlaxoSmithKline manipulated data on the drug studies which it presented to the FDA, hiding an increased suicide rate among users. It was sued for consumer fraud by the state of New York in 2004 and agreed to a settlement, because it had falsely marketed Paxil as being safe for adolescents.

Medical studies revealed that the suicide rate in teenagers taking Paxil was four times greater than those taking a placebo. Increased suicide rates also occurred for the antidepressants made by the other drug companies.

Although this had been reported in the medical literature for over a decade, it was not until 2004 that the FDA required that antidepressants carry a black label warning about the increased risk of suicide.

The drug companies were aware of the dangers posed by the antidepressants but continued to market them, hiding the side effects from the doctors and consumers. How many families have lost a loved one to suicide caused by the side effect of an antidepressant?

Drug companies and corporations should be held fully liable for negligent and unethical actions instead of being protected by tort reform.

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Alvin merchant sues AT&T over yellow page ad
The Southeast Texas Record
July 23, 2008
by David Yates

ORANGE -- Upset that a competitor's Yellow Pages ad is above his, Troy McLehany has filed suit against AT&T.

McLehany alleges AT&T choice in ad location has "overshadowed" his company, something that will cost him customers.

An Alvin resident, McLehany filed his lawsuit July 16 in Orange County District Court.

Alvin is located in Brazoria County , about 130 miles southwest of Orange County , but suit says jurisdiction is proper in Orange because At&T does business in Texas .

In his lawsuit, McLehany says that he purchased yellow page ads for his business, H Town Bail Bonds, in the 2007 Houston North Suburban telephone directory.

"Plaintiff has advertised through the defendant's telephone directory for many years and has enjoyed great success," the lawsuit says.

"However, defendant placed a competitor's ad in front of and on top of the plaintiff's leader advertisement. This caused his business to be greatly overshadowed … by a less expensive advertisement. The plaintiff has lost a large sum of money due to defendant's misrepresentations."

McLehany also claims AT&T is wrongly refusing to allow him to pay for future advertisements in monthly installments.

He argues AT&T's practices are in violation of the Texas Deceptive Trade Practices Act.

The three-count lawsuit accuses AT&T of negligence, fraud and breach of contract.

McLehany is suing for exemplary, actual and economic damages, plus attorneys' fees.

He is represented by attorney Paul Fukuda. The case has been assigned to Judge Dennis Powell of the 163rd Judicial District.

Case No. B-080272-c

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HOUSTON — BP PLC on Tuesday settled the four lawsuits that remained in the latest civil trial resulting from the deadly 2005 explosion at its refinery near Houston .

This latest round of settlements means out of the more than 4,000 lawsuits that were filed in the aftermath of the blast, only seven are pending, said BP spokesman Daren J. Beaudo.

"We are pleased to have resolved substantially all of the claims arising from the explosion," London-based BP said in a statement. "Our goal from the outset has been to fairly compensate people harmed by this tragedy."

A few hours after the settlements were announced, the 65-page deposition that BP's former CEO, Lord John Browne, gave in April was released. Its contents had previously been discussed by Brent Coon, who took the deposition and who is the attorney for two of the injured workers whose cases were settled.

Attorneys for those killed and injured in the blast had fought for nearly two years to question Browne. Their fight reached the Texas Supreme Court, which in January paved the way for the deposition.

The terms of the settlements, as has been the case when other blast-related suits have been resolved, were confidential.

The refinery blast killed 15 people and injured more than 170.

The plaintiffs — Luis Garcia, 26; Esteban Huerta, 57; Charles Pinder, 50; and Olivia Palton, 42 — were employed by various independent contractors who worked in and around the Texas City refinery located about 40 miles southeast of Houston.

They claimed to have suffered a variety of injuries, including back and knee problems and post traumatic stress disorder.

Coon who represented Garcia and Huerta, said he has mixed emotions.

"The terms of the settlement provide immediate relief and closure for our clients and avoid the potential for a lengthy appeal," he said. "But for me not to get the final closure, which is having a jury come back and stick it to (BP), is disappointing."

None of the blast-related lawsuits that have gone to trial have been settled by a jury verdict.

The settlements were reached Monday night, nine weeks into the trial in Galveston .

A trial on the remaining lawsuits is scheduled for September, but Coon said he thinks those cases will be settled before then.

The explosion at the plant occurred after a piece of equipment called a blowdown drum overfilled with highly flammable liquid hydrocarbons.

The excess liquid and vapor hydrocarbons then were vented from the drum and ignited at the startup of the isomerization unit — a device that boosts the octane in gasoline. Alarms and gauges that were supposed to warn of the overfilled equipment did not work properly.

The U.S. Chemical Safety and Hazard Investigation Board, in its final report, found BP fostered bad management at the plant and that cost-cutting moves by BP were factors in the explosion.

When asked in his April deposition if he had read the chemical safety board's final report, Browne replied it was "described to me at a meeting. It was very, very long, I believe."

Throughout the deposition, when asked if he knew about various reports that detailed infrastructure problems at the refinery or safety concerns workers had, Browne said he didn't know.

"I am not aware of all the problems, no," said Browne, who resigned from BP in May 2007 after admitting he lied to a judge when he tried to block a newspaper from printing allegations of wrongdoing made by a former boyfriend.

Still pending is a decision from a federal judge in Houston on whether she will accept a guilty plea from BP to settle a criminal investigation by the Department of Justice on the explosion.

The much criticized plea deal calls for a $50 million fine and sentences the oil giant to three years' probation for its role in the blast.

Many blast victims think the fine is low and that BP would not meet its safety obligations at the refinery.

Federal prosecutors and BP have defended the plea agreement, saying it's the harshest option available in assessing criminal punishment. A congressional committee is investigating the deal.

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Court: $15K for folks of drowned boy was too rich
Houston Chronicle
July 22, 2008
by RICK CASEY Copyright 2008 Houston Chronicle

It has been only a week since two boys, one 4 and one 10, were crushed to death and a third injured when a staircase collapsed on top of them at their apartment building in southwest Houston.

Already a lawsuit has been filed on behalf of one of the families. The haste is unseemly even to some plaintiff's lawyers, but the lawyers who filed the suit claimed they needed to in order to keep the apartment owners from repairing the stairwell and thereby destroying evidence.

It wasn't so long ago that lawyers wouldn't have been rushing to sign up a case like this.

To put it brutally — as did the law in Texas and many other states — dead children weren't worth very much.

'No recovery for grief'

The reason is that for most of the 20th century, Texas law provided that juries could not compensate parents for a negligent act by someone else that caused one of the most intense of agonies, the loss of a child.

A 1947 case decided by the Beaumont Court of Appeals summed up the law and its disregard for sentiment.

"It is a well settled rule of law that a parent is entitled to recover as his actual damages for the death of a child the pecuniary value of the child's services until he reaches his majority, less the cost and expense of the child's support, education and maintenance, and such sums as might be reasonably expected as contributions after the child reaches majority," the court ruled.

"(B)ut that no recovery may be had for mental anguish, grief, bereavement or loss of companionship, and it is well settled that some evidence of pecuniary loss is necessary to support a judgment of recovery."

Boy worth $6,000 at most?

In the case, a small boy had drowned after falling into a water-filled pit dug by a subdivision developer to provide dirt for road grading.

The pit was unfenced, and the jury found that the developer was negligent in leaving such a child magnet unenclosed.

Jurors awarded the parents $15,000 for "pecuniary" damages and seemed to wish they could give them more for their pain.

The jurors were appalled at the developer's action. The appellate judges were appalled at the jury's.

"We have examined a great many authorities under this point and have concluded that the sum of $15,000 is an excessive award under the facts of this case," they wrote, noting that $15,000 was "the full amount" the parents sought.

"No evidence is in the record showing that the little boy who was drowned possessed more than the ordinary qualities of a normal, healthy, willing child from whom his parents might expect normal services and contributions and for whom they might expect only the ordinary expense of care, maintenance and education," they continued. "An award in excess of $6,000 should not be permitted to stand and appellant's contention in this regard is sustained."

Reading the opinion, you almost get the feeling the parents were lucky the appellate court didn't do a more careful accounting and find, quite logically, that the parents owed the developer money for relieving them of the financial burden of rearing a child.

That was the law until 1983, not exactly the Dark Ages. The civil rights movement had already bloomed, as had the women's movement, Head Start and Medicare.

That year, in a case called Sanchez vs. Schindler, the Texas Supreme Court threw out the "well settled rule of law" and allowed parents to be compensated for the pain, suffering and lack of companionship caused by the death of a child.

Activist judges? Yes, and they defended themselves by writing that they "should not be bound by the prior legislative inaction in an area like tort law which has traditionally been developed primarily through the judicial process."

In other words, if the legislators wouldn't pass laws to stop the injustice caused by previous activist judges, they would do it themselves.

Sort of like the group of activist judges who undid the activist work of judges who ruled that schools could be separate but equal.

A swing the other way

In 1986, Houston lawyer Richard Mithoff made the front page of the National Law Review by winning the first multimillion dollar settlement ($2 million) in Texas for the parents of a teenager killed in an accident at a Baytown petrochemical plant.

From then on, the pendulum swung in the direction of the plaintiffs, until business interests won influence over the Legislature and the Texas Supreme Court and pressed tort reform measures. Now the pendulum has swung back with a variety of new laws and court rulings.

The strictest, however, have been in the medical arena. Parents can still win substantial awards for the death of a child but, says Mithoff, the amount usually depends on "an exemplary family and a punishing set of facts regarding the death."

It also depends on having a skilled lawyer. We all should hope the family that has already sued in the Westwood Fountains apartment tragedy didn't rush (or weren't rushed) into a mistake.

Fear of successful lawsuits is a very useful deterrent for egregiously bad maintenance by landlords.

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Not just AGs sicking outside counsel on big business
Southeast Texas Record
July 22, 2008
by John O'Brien

PHILADELPHIA (Legal Newsline) - Attorneys for Janssen Pharmaceutica, fighting a collection of suits over the company's antipsychotic drug Risperdal, are trying to make sure a major Houston-based plaintiffs firm isn't steering the governor's office in Pennsylvania .

Bailey Perrin Bailey has made the same claim of marketing violations against Janssen, a subsidiary of Johnson & Johnson, in at least six other states, including Arkansas and Louisiana . State Medicaid programs, it is alleged, are harmed by Janssen's off-label marketing and failure to disclose side effects.

When Pennsylvania Gov. Ed Rendell decided to file his own suit, it was Bailey Perrin Bailey and a Pennsylvania firm acting as co-counsel submitting the complaint instead of Republican state Attorney General Tom Corbett. Rendell, a Democrat, hired BPB on a contingent-fee basis that Janssen is challenging in the Philadelphia Court of Common Pleas.

"No attorney from the (Governor's Office of General Counsel) ... has entered an appearance in this action," says Janssen's June 9 Motion to Disqualify Counsel, signed by Ed Posner of Drinker Biddle & Reath. "The Complaint was not verified by any Commonwealth officer or employee.

"The verification attached to the Complaint -- attesting that the signatory is 'in a better position than any individual officer or employee of the agencies of the Commonwealth Plaintiff to present this verification' -- was signed by (a BPB attorney)."

It's a similar argument to the one recently made in Rhode Island -- that plaintiffs firm Motley Rice's agreement with state Attorney General Patrick Lynch to sue the former manufacturers of lead paint should have been grounds to dismiss the case.

The Rhode Island Supreme Court unanimously sided with the paint companies' argument that they should not be held liable for the presence of lead paint in the state, but the Court also affirmed Lynch's right to hire counsel on a contingent basis, as long as Lynch was the one in control of the suit.

Janssen's attorneys say those who filed the suit must not have a financial or personal interest in the outcome. BPB's obvious financial interest (15 percent of any monetary recovery) will affect the actions of a public office.

The Due Process Clause requires Rendell to be guided by the sense of public responsibility for the attainment of justice, Janssen says.

"The risk that Bailey Perrin's financial stake in the outcome will affect government decision-making in connection with this action is real and serious," the motion says.

"Indeed, the role of the Governor's General Counsel in the retention of Bailey Perrin, the timing and amounts of Mr. Bailey's campaign contributions, the terms of the contingent fee agreement, and the involvement of Bailey Perrin in other Risperdal-related litigation that might be affected by this lawsuit combined to give rise to a manifest appearance of impropriety -- the impression that the government's prosecutorial decisions have already been infected by impermissible considerations."

In its answer, BPB says Janssen has it all wrong. Final decision-making and ultimate control stays with Rendell's office.

"The contract relegates the Commonwealth's outside counsel, Bailey Perrin Bailey, to 'advis(ing), counsel(ing) and recommend(ing) actions to the OGC' and to 'carry(ing) out to the best of its ability (the OGC's) directions.

"Further, Bailey Perrin Bailey is 'responsible directly to the General Counsel ... on all matters of strategy and tactics,' and must consult and cooperate with the OGC regarding the same."

BPB says it has assumed the risks of litigation and will have to stand behind any decisions made by Rendell's general counsel. Relinquishing control was a must.

"(N)othing in the contract restricts the OGC from negotiating any amount of monetary settlement with Janssen, or even abandoning the litigation altogether, a result which would result in no financial harm to the Commonwealth and no compensation to Bailey Perrin Bailey," the answer says.

BPB also wrote that the Philadelphia court may be the only court in the country to rule against the contingent-fee issue if it did. A California Superior Court had ruled the County of Santa Clara could not retain contingent fee counsel in its case against former lead paint makers in April 2007, but it was reversed by an appellate court a year later.

That ruling is being appealed to the state Supreme Court.

A separate issue involving the separation of powers is also being debated. Janssen says any settlement funds or jury award -- including attorneys fees -- should be appropriated by the state's legislature. BPB says those funds would come directly from Janssen, and attorneys fees are always deducted before lawmakers get their hands on any money.

BPB obviously is looking forward to that day. A contingent fee agreement with no monetary recovery would be, well, a nightmare for the firm.

The contingency issue has long been argued by tort reformers and plaintiffs attorneys. Former Nebraska Attorney General Don Stenberg never entered into a contingency agreement during his 12 years in office, writing, "When a contingent fee agreement is entered into, the Attorney General's authority to control the state's litigation and appoint outside counsel collides with the Legislature's authority to control the purse."

Other attorneys general feel it is necessary to seek outside help to check large corporations that can afford the expense of high-profile defense firms and years-long litigation.

Janssen challenged West Virginia Attorney General Darrell McGraw's right to hire private firms in 2006. McGraw and top aide Fran Hughes have a taxpayer-supported staff of about 200 in the office.

A case against a large corporation costs more per year than the office is budgeted, and without hiring outside counsel, "the office would be unable to hold huge corporations accountable for violations of the law," Hughes has said.

The trial judge sided with McGraw, and the state Supreme Court voted 4-1 in January 2007 not to hear Janssen's appeal.

The largest of all recent cases, the one in which 46 states and six territories joined in a $246 billion settlement with tobacco companies, was initiated and negotiated by private practice attorneys who gambled on a big payday. BPB founder Kenneth Bailey was one of them.

After nine years of work, Motley Rice, whose founder Ron Motley was also one of those tobacco lawyers, wasn't so lucky in Rhode Island . BPB says that is deterrent enough to refrain from filing baseless lawsuits with state power.

And that a measure of anxiety may be born from relinquishing control.

"Janssen, of course, neglects to mention the fact that Bailey Perrin Bailey must advance all costs of the litigation, and if there is no recovery, stands to lose millions as the result of undertaking the Commonwealth's case," BPB's answer says.

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Lawyer Wins Fee Fight With Former Client at Supreme Court
Texas Lawyer
July 21, 2008
by Mary Alice Robbins

A written attorneys' fee agreement that specifies only hourly rates but is not ambiguous cannot be modified by evidence that the parties agreed orally to cap the fees, the Texas Supreme Court held in a Houston lawyer's almost decade-old case against a former client.

"[T]he absence of a fixed total price for services does not indicate a failure of the parties to reach a meeting of the minds with regards to the essential terms of the contract," the Supreme Court wrote in its July 11 per curiam opinion in Sacks v. Haden. In a second per curiam opinion in Sacks , the court addressed a turnover order issued by the trial court.

With no dissents, the Supreme Court reversed a decision by Houston's 1st Court of Appeals and reinstated Harris County Court-at-Law No. 2's judgment awarding the Sacks Firm in Houston and its president, David J. Sacks, $30,214 on the firm's breach-of-contract claims against Charles McIntyre Haden Jr. and his business, Haden & Co. The high court's decision also reinstated the court-at-law's judgment awarding Sacks and his firm about $120,000 in attorneys' fees incurred in pursuing the contract claims against Haden and his company.

In a 2-1 decision, the 1st Court held in 2007 that whether the parties' minds met on the legal fees and Haden's obligation to pay those fees were questions of fact that a jury should decide and remanded the case to Harris County Court-at-Law No. 2 for a trial.

"The Supreme Court brought order back to the law," Sacks says of the high court's decision.

If a lawyer has a contract with a client and spends thousands of dollars in time on the case, the client cannot say two or three years later that there is a $10,000 cap on the fee, Sacks says.

Houston solo Richard Countiss, Haden's attorney, says Haden will file a motion for rehearing with the Supreme Court. "We're extremely disappointed," Countiss says.

Countiss says the Supreme Court decided the case on the parol evidence rule without addressing Haden's challenge to the adequacy of the affidavit Sacks presented to the trial court to justify the thousands in dollars in fees Sacks claimed he was owed for trying to collect payment from Haden.

"If you're going to allow the kind of windfall Mr. Sacks enjoyed, you should explain why," Countiss says.

In 1997, Haden hired Sacks to prepare a brief to the 5th U.S. Circuit Court of Appeals in an appeal of an adverse judgment against Haden and his company in Haden v. Metropolitan Life Insurance Co., a commercial landlord-tenant dispute. Sacks set out his hourly rates and those of other lawyers and paralegals in his firm in an Aug. 4, 1997, engagement letter to Haden. Sacks signed the engagement letter in which he requested a $10,000 retainer.

The Supreme Court's opinion provides the following background on what happened after Sacks sent the engagement letter: Haden sent a check for $5,000 to the Sacks Firm, along with a letter in which Haden wrote: "Also enclosed is an executed copy of your Aug. 4, 1997, letter indicating that I have acknowledged acceptance of your fee agreement on behalf of Haden & Co. and myself, except that the initial retainer amount has been reduced to $5,000 per our agreement." Sacks filed a brief in Haden's appeal to the 5th Circuit and sent Haden an invoice in the amount of $37,259 for legal services. Sacks also filed a reply brief that responded to the opponent in the landlord-tenant dispute and sent Haden an invoice showing $40,304 in total charges but giving Haden credit for the $5,000 retainer fee. While the invoice indicated an outstanding balance of $35,304, Haden paid only an additional $5,000. Over the next two years, Sacks requested payment of the balance on the attorneys' fees, but Haden contested the amount owed and contended that Sacks was only supposed to review the brief prepared by Haden's trial counsel.

In September 1998, the 5th Circuit affirmed the adverse judgment of $66,363 that U.S. District Judge Nancy Atlas had awarded against Haden and his company in Metropolitan Life. However, the 5th Circuit ruled partially in favor of Haden and his company by vacating Atlas' dismissal of a promissory-estoppel counterclaim that Haden and the company made.

Sacks and his firm sued Haden and his company in 1999 in Harris County Court-at-Law No. 2, asserting claims for, among other things, breach of contract, quantum meruit and Deceptive Trade Practices Act violations. In 2000, the court-at-law rendered a partial summary judgment in favor of Sacks and his firm, ruling that they were entitled to attorneys' fees of about $30,000 incurred in preparing the briefs for Haden's appeal and for an unspecified amount of attorneys' fees incurred in pursuing the contract claim. The court-at-law also held that Haden and his company take nothing on his counterclaims against Sacks and his firm for unconscionable acts, fraud, DTPA violations, breach of fiduciary duty and breach of contract.

As noted in the Supreme Court's opinion, Sacks and the firm sought summary judgment on the reasonableness of the attorneys' fees incurred in their collection effort. The court-at-law awarded Sacks and the firm an additional $75,887 in attorneys' fees at the trial level and another $45,000 for fees if there was an appeal.

Haden and his company appealed to the 1st Court , which in 2006 issued a unanimous decision affirming the court-at-law's judgment in an opinion written by Justice Elsa Acala. After Haden filed a motion for rehearing, however, the 1st Court reversed its original holding in a 2-1 decision. Chief Justice Sherry Radack wrote the March 8, 2007, majority opinion on rehearing, in which Justice Evelyn Keyes joined.

The 1st Court majority concluded that Haden's evidence that he had an oral agreement with Sacks to cap the attorneys' fees at $10,000 was admissible as a defense to Sacks' claim, because the engagement-letter contract that Sacks sent to Haden did not expressly state whether the parties had agreed to an open account or a flat maximum fee.

Haden argued to the 1st Court and to the Supreme Court that he offered evidence of "consistent collateral conditions" when he testified in the court-at-law that he and Sacks had an oral agreement to cap the fee amount.

Because the engagement-letter contract did not spell out whether the parties had agreed to an open account or a flat maximum fee, the 1st Court concluded that Haden's evidence of an oral agreement capping the attorneys' fees at $10,000 was admissible in defense to Sack's claim under the collateral-and-consistent exception to the parol evidence rule. According to the Supreme Court's opinion, the 1st Court raised the "meeting of the minds" issue sua sponte and concluded that, because there was not a clear statement that identified the fee agreement as an open account, there was a question where the parties had a meeting of the minds on Haden's obligation.

The Supreme Court held that the 1st Court erred in holding that there was no meeting of the minds necessary to form a binding contract. The high court further held that the 1st Court erred in holding that the parol evidence rule did not bar Haden's evidence that he and Sacks had an oral agreement capping the fees.

Haden argued to the 1st Court and the Supreme Court that a fee agreement must state specifically that the hourly fees would accrue without limit for the agreement to be unambiguous and enforceable.

"But the lack of such explicit language is irrelevant if the agreement can be reasonably interpreted only one way. . . . We have never held that an open-ended hourly fee agreement will be enforced only if it expressly states there is no cap on fees, and we decline to do so now," the Supreme Court said in Sacks.

Claude Ducloux, an Austin lawyer who represents attorneys in the State Bar of Texas grievance process and is knowledgeable about legal ethics but who is not involved in the case, says the Supreme Court's ruling assures lawyers that when they have an unambiguous agreement with a client, that agreement is going to be valid and the client cannot inject testimony into the case that the agreement says something else.

"All I can say for the tens of thousands of us who very regularly enter into hourly fee agreements with hundreds of clients is a collective 'whew!' " says Ducloux, a principal in Hill, Ducloux, Carnes & de la Garza.

Second Per Curiam

In a separate per curiam opinion in Sacks, the Supreme Court reversed the 1st Court 's decision regarding the trial court's turnover order. The Supreme Court remanded that part of the case to the 1st Court . The trial court had awarded Sacks and his firm $90,000 in a turnover order. According to that Supreme Court opinion, when Haden failed to supersede the judgment against him and his business on Sacks' breach-of-contract claim, Sacks and the firm incurred considerable expense to secure a turnover order under Texas Civil Practice & Remedies Code §31.002(e), have a receiver appointed to prevent prejudgment transfer of Haden's assets and seek dismissal of Haden's bankruptcy filings.

Haden had sought Chapter 13 relief in the U.S. Bankruptcy Court for the Southern District of Texas, but that court dismissed his bankruptcy claim in December 2001. The 1st Court had reversed the turnover order when it reversed the underlying judgment on Sacks' breach-of-contract claim, the Supreme Court noted in its opinion.

Sacks estimates that, with interest compounding at a rate of 10 percent annually, Haden and his company owe Sacks more than $400,000. But Sacks says he has spent "a lot more than I'll ever see" in trying to collect his fees.

It's been a legal victory, Sacks says of the Supreme Court's rulings. "It hasn't been a financial win."

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Second asbestos suit filed on pipe-fitter's behalf names 19 defendants
Southeast Texas Record
July 21, 2008
by David Yates

During his career as a pipe-fitter, Gliese Bergeron worked around and breathed asbestos dust. When he developed an "asbestos-related disease," he sued and received a claim.

Now he's seeking additional monetary compensation for a "different malignant asbestos-related injury," court papers show.

Provost Umphrey attorney Bryan Blevins filed suit on Bergeron's behalf against the A.O. Smith Corp. and 18 other companies. The lawsuit was filed July 17 in Jefferson County District Court.

Bergeron's petition says the A.O. Smith Corp., along with the 18 other companies named in the suit, knowingly and maliciously manufactured and distributed asbestos-containing products throughout Jefferson County .

Bergeron worked as a pipe-fitter and maintenance planner for various employers, "which caused him to suffer from…industrial dust diseases caused by breathing the asbestos-containing products," the suit says.

However, the complaint fails to list specific dates and locations of Bergeron's employments.

The suit further alleges the defendants in the lawsuit were negligent for failing to adequately test their asbestos-laced products before flooding the market with dangerous goods and for failing to warn the consumer of the dangers of asbestos exposure.

Some of the defendants listed in the lawsuit include the CBS Corporation and iron supplier Zurn Industries.

In addition, the petition faults Minnesota Mining and Manufacturing Corp. (3M Corporation) and American Optical Corp. for producing defective masks that failed to provide respiratory protection.

Although Bergeron has already sued and received a claim, the suit says, "Plaintiff now seeks damages against defendants not released in the previous actions pursuant to Pustejovsky v. Rapid-American Corp ."

In the precedent-setting Pustejovsky opinion in 2000, the Texas Supreme Court held that a victim of asbestos may later have a second lawsuit for an asbestos-related cancer if he develops the cancer at a future date.

The opinion reversed a long history of Texas cases holding that a person may only bring one lawsuit for an asbestos-related injury, even if he develops a second, catastrophic asbestos-related cancer at a much later date.

"The court must apply a separate accrual rule in these cases because a single action rule would forbid a second suit and in doing so force the asbestos plaintiff to file premature litigation on speculative claims, which the court in Pustejovsky notes is neither efficient or desirable," the suit said.

Bergeron is suing for exemplary damages, plus physical pain and suffering in the past and future, mental anguish in the past and future, lost wages, loss of earning capacity, disfigurement in the past and future, physical impairment in the past and future, and past and future medical expenses.

Judge Bob Wortham of the 58th Judicial District has been assigned to the case.

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Clay Robinson: Builder doesn't let housing slowdown cramp fundraising style
Houston Chronicle (also appeared in the San Antonio Express-News)
July 21, 2008

AUSTIN — Nationally, Houston homebuilder Bob Perry is best known for contributing almost $4.5 million to the “swift boat” ad campaign that helped sink Democrat John Kerry's 2004 presidential bid.

In Texas , he remains a major money guy for numerous state officeholders, candidates and political committees that are mostly — but not exclusively — Republican.

During the 13 months since the 2007 legislative session ended, he has given about $2.3 million to Texas candidates and causes, according to new filings with the Texas Ethics Commission. Housing starts may be down, but that amount keeps Perry at or near the top of the state's political donor list.

His largest single donation during that period was $250,000 to Texans for Lawsuit Reform, the business group that has had much success in promoting laws clamping down on lawsuits and plaintiffs' lawyers.

Other major recipients include Lt. Gov. David Dewhurst, $125,000, and Sen. Mike Jackson, R-Pasadena, $77,500. Dewhurst isn't on the ballot this year, but Jackson is in a re-election battle with Democratic challenger Joe Jaworski of Galveston .

Perry also continues to be a steady source of campaign cash for House candidates and political committees supportive of Texas House Speaker Tom Craddick.

“Mr. Perry has long supported candidates and officeholders who advance Texas through job creation, strong schools and lawsuit reform,” spokesman Anthony Holm said.

Perry's largess, of course, also has helped advance his own interests, including the creation a few years ago of the Texas Residential Construction Commission to help protect homebuilders from lawsuits.

And, more recently, his company won a major victory in a defective home case before the Texas Supreme Court, all nine of whose members have received campaign dollars from Perry. The victory was close, though, with four of Perry's beneficiaries voting against him.

* * *

We already knew it costs a lot of money to run for statewide office. But it also can cost a lot of money simply to decide which office to seek.

They didn't get much attention at the time, but Dewhurst ran two 30-second TV commercials on hot-button issues earlier this year in some of the smaller cities.

The ads, which ran around the time of the March 4 primary, apparently were designed to increase the lieutenant governor's name identification and standing on issues important to Republican voters. In them, he stressed the need to ensure that only U.S. citizens can vote and called for secure borders.

Dewhurst's long-term plan was to run for governor, but stymied by Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison, he still hasn't decided what he will do in 2010.

While he continues to contemplate his future, we now know how much that ad campaign cost — more than $700,000, according to his new campaign finance report.

Most of that went to Dresner Wickers & Associates of San Francisco for media and consulting services. Dewhurst's political committee paid the Dempsey Film Group of Little Rock , Ark. , another $9,300 for production costs.

* * *

Just wondering, but if you were an officeholder or political candidate, would you accept money from either the BP or Countrywide Financial Corp. political action committee during this election year? BP still is getting a lot of negative publicity over the 2005 explosion at its Texas City refinery, and Countrywide has been in the middle of the subprime mortgage lending crisis.

Both PACs, however, still are giving money, and some Texas politicians still are accepting it.

Speaker Craddick and challenger Jim Keffer, R-Eastland, have taken $1,000 each this year from Countrywide, as have several other legislators, including Rep. Senfronia Thompson, D-Houston, and Sen. Leticia Van de Putte, D-San Antonio.

Craddick also received $1,000 from BP and Keffer got $500. Sen. Judith Zaffirini, D-Laredo, got $1,000, and Reps. Garnet Coleman, D-

Houston; Jim Murphy, R-Houston; Joe Crabb, R-Kingwood; Charles Howard, R-Sugar Land; and Frank Corte, R-San Antonio, among others, got $500 apiece from BP.

Houston Chronicle Staff Writer Clay Robison is the Austin Bureau chief. He can be reached at [email protected]

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El Paso legislators spend $90,000 on campaigns despite lack of challengers
El Paso Times
July 21, 2008

Lawmakers face no challengers, say cash is necessary

AUSTIN -- Three El Paso lawmakers who do not have challengers for their legislative seats spent more than $90,000 in campaign cash during the first half of this year.

Campaign finance reports that state Reps. Norma Chávez and Joe Pickett and state Sen. Eliot Shapleigh filed this week indicate the lawmakers' campaign accounts were briskly bringing in cash and shelling it out in a year when none of them face political opponents.

The lawmakers said campaign accounts are critical to keeping up with their duties in the community and in Austin . Their $7,200 annual salary for work in the Legislature just doesn't go far, they said.

But campaign finance reform advocates said the existing contribution system has too few limits and too many possibilities for corruption. In a system in which a large percentage of lawmakers' campaign money comes from lobbyists trying to influence legislation, advocates said, opportunities for conflict abound.

"It's almost even worse than spending taxpayer money," said Craig McDonald, executive director of Texans for Public Justice, an Austin-based political watchdog group. "It's money from special interests É and these are the same special interests who want you, a lawmaker, to vote with them."

From January through June this year, Chávez raised and spent more than any other local lawmaker except state Rep. Pat Haggerty, who lost a massively expensive primary contest.

The $24,425 she raised exceeded amounts collected by state Rep. PaulMoreno, who also lost his Democratic primary race in March, and by state Rep. Chente Quintanilla, who faces a Republican challenger in November.

Her largest contribution, $10,000, came from Texans for Lawsuit Reform, a group that promotes limits on damage awards in lawsuits and typically gives generously to Republicans.

Chávez spent $45,316, more than any other local legislator except Haggerty and Moreno .

This spring, she said, she spent heavily on voter registration efforts, on helping local candidates and on supporting U.S. Sen. Barack Obama's presidential campaign.

"Those things are important to having a democratic community and good government," she said.

Chávez's report shows she spent at least $10,900 on travel in the first half of the year. A February trip to Las Vegas to campaign for Obama cost about $1,500 for airfare, rental car and a suite at the Rio All-Suite Hotel and Casino.

Airfare for an April trip to help Obama in Philadelphia cost more than $800.

Chávez also spent thousands on airfare and rental cars in Austin , where she works at the Capitol and attends classes at the University of Texas at Austin .

Chávez said the spending is part of what it takes to remain active in the community and to do her job as a legislator and political figure.

She said she doesn't feel beholden to major contributors who help finance those activities.

"The person who gives me $1,000 has the same access as someone who gives me $100 or $10," she said.

Sen. Shapleigh didn't fall too far behind Chávez in his campaign account activity in the first half of the year.

He raised $23,300 and spent about $31,600.

"Those that know me know where I stand," Shapleigh said. "And I tell them I appreciate the support for my campaign, but they'll have the same access as any citizen from El Paso ."

Shapleigh's largest contribution, $5,000, came from the Oklahoma Chickasaw tribe.

The biggest category of spending for Shapleigh was his staff, whom he paid about $5,500.

Gifts and awards for staff, other senators and constituents accounted for another $3,300 from Shapleigh's campaign coffers.

"We give hundreds of awards every year to recognize and honor El Pasoans for achievements, honors and good grades," he said. "I see that as part of what our office should do."

And El Paso-flavored gifts to other lawmakers, he said, help remind them about great things in the community when it comes time to vote on issues such as the medical school.

Shapleigh also paid about $1,600 to 701 N. St. Vrain Joint Venture, a company that he said his wife owns. The company provides Shapleigh's campaign office space, and the payment, he said, was reimbursement for office expenses such as Internet access and paper.

"That's what the law permits, so that's what we do," Shapleigh said of the office arrangement.

When it comes to bringing in cash and spending it, Shapleigh said he promised his family not to use their own earnings on politics.

He said he raises and spends only what's necessary and doesn't keep a multimillion-dollar campaign balance like some senators do.

Pickett's campaign account was the least active among local legislators. He raised only $6,300 and spent about $16,600.

Pickett's largest check, $2,500, came from the Texas Association of Realtors.

The majority of his campaign cash was spent on an apartment and transportation in Austin .

Though he plans fundraisers later this year, Pickett said he doesn't think it's necessary to pile up a huge campaign war chest.

"I'll gear up if I have to," he said.

El Paso lawmakers are hardly the only ones who keep busy collecting and expending campaign money even when they're not in heated races.

Texans for Public Justice issued a report in January that showed lawmakers spent $9.5 million in 2007, a year when none of them were up for re-election.

About 70 percent of that money went for staff, rent, travel, office expenses and gifts.

Sen. John Whitmire, D-Houston, according to the report, paid more than $19,000 for tickets to professional football and basketball games. Sen. John Carona, R-Dallas, spent more than $60,000 on travel, including use of his company's private jet.

Some politicians keep a stockpile of campaign cash. Gov. Rick Perry this week reported nearly $3 million in the bank, and Texas Attorney General Greg Abbott listed more than $8 million.

McDonald, Public Justice's executive director, said there are too few guidelines for how lawmakers and candidates can use political cash, which largely comes from lobbyists trying to curry favor for their pet causes at the Capitol.

The money can't be used for personal or family gain, and it can't be used to buy property.

"You can take a trip around the world as long as you claim it's for political purposes," McDonald said.

But the most troubling thing about Texas ' campaign finance system, McDonald said, is that it allows lobbyists to foot the bill for lawmakers' lifestyles.

"There's an element of corruption in that," he said.

McDonald and other watchdog groups want more regulation and monitoring of campaign finance in Texas .

Andy Wilson, director of campaign finance programs at Public Citizen Texas, said the state is due for a major ethics overhaul.

"Most state legislators are good people trying to do the best job they can," Wilson said. "The biggest problem is that, as citizens, we can't tell the good apples from the bad apples."

Brandi Grissom may be reached at [email protected] ; 512-479-6606.

Contributions and expenditures Campaign contributions to El Paso state lawmakers: 2008 periodLawmakerAmount Jan. 30-June 30Rep. Norma Chávez$24,425 Jan. 30-June 30Rep. Joe Pickett$6,325 Jan. 30-June 30Sen. Eliot Shapleigh$23,300 Jan. 30-June 30Rep. Chente Quintanilla$18,914 Feb. 24-June 30Rep. Pat Haggerty $121,100 Feb. 24-July 14Rep. Paul Moreno$21,650* * Includes amounts collected by Friends of Paul Moreno Political Action Committee. Campaign expenditures by El Paso state lawmakers: 2008 period LawmakerAmount Jan. 30-June 30Rep. Norma Chávez $45,316 Jan. 30-June 30Rep. Joe Pickett$16,643 Jan. 30-June 30Sen. Eliot Shapleigh$31,663 Jan. 30-June 30Rep. Chente Quintanilla$16,965 Feb. 24-June 30Rep. Pat Haggerty$224,356 Feb. 24-July 14Rep. Paul Moreno$54,676* * Includes amounts spent by Friends of Paul Moreno Political Action Committee. Source: Texas Ethics Commission.

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Editorial: Jury duty plays a crucial role in our justice system
San Antonio Express-News
July 19, 2008

A juror summons is not to be taken lightly as a Bexar County teenage juror found out recently.

The American judicial system is heavily dependent on criminal defendants and civil litigants having access to fair and impartial jurors.

Everyone jokes about trying to get out of jury service, but we should all be thankful most Bexar County residents take their jury duty seriously.

Like it or not, once a person registers to vote, gets a drivers license or applies for an identification card from the state they become part of the jury pool.

Unlike death and taxes, there are ways of getting out of jury duty.

Age, status as a full-time student and or responsibility for small children are sufficient reason for a judge to grant an excuse for jury duty.

Those who take on the responsibility of jury service and don't live up to their end of the bargain can end up in trouble with the court themselves.

Elizabeth Marie Chavarria, 18, found that out the hard way recently after she was held in contempt of court for going AWOL in the middle of a trial.

On Monday, Chavarria started her 112 hours of community service work in the Central Jury Room at the Bexar County Justice Center as punishment. As severe as that might sound, the teen is lucky she did not get jail time or a hefty fine on top of that.

The contempt charge in this case should send a loud and clear message to others who might think jury service is no big deal or something they can simply blow off.

Jury service is a big deal and some people actually enjoy it.

Last year, 223,752 juror summons were mailed out in Bexar County . A surprising 80.3 percent of those receiving them responded.

That is an extraordinary response rate compared to some of the other metropolitan areas of the state, according to Central Jury Room Bailiff Mellie Flores. In recent years Harris County has had a show rate of about 15 percent, Dallas 21 percent.

District Judge Larry Noll recently finished a stint presiding over jurors summoned to court in Bexar County; it's one of the more pleasant duties rotated on a monthly basis among the judges.

Noll said he was pleasantly surprised at the upbeat attitude of the jurors. “I think people in Bexar County view jury service as a civic duty and want to serve. I had one woman in her 70s come up to tell me should could have claimed the age exemption but didn't because she wanted to serve,” the judge said.

Jury service only pays $6 on the first day of service, those who serve more than one get a pay hike on the second day to $40 per day.

Any way you look at it, it's less than minimum wage.

It's uplifting to find that most Bexar County residents take jury duty seriously.

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Get a ticket, and lawyer solicitations besiege you
Houston Chronicle
July 18, 2008
By MARY FLOOD

Lawyers can't show up on your doorstep, but they can clutter your mailbox.

A colleague recently was ticketed for a missing license plate and making an improper left turn. She started receiving often official-looking solicitations from lawyers claiming for a mere $75, $50 or even $40 per violation they would handle her case.

The solicitation from Sullo & Sullo looked the most official.The one from Alvarez y Montes looked the least courtlike, superimposed over a picture of Mexican revolutionary Emiliano Zapata and offering (entirely in Spanish) a 10 percent discount on the first case.

The Prince Law Firm solicitation brags that one of the lawyers is a former Houston police officer, even though he no longer works at the firm. The Citizen Law Firm envelope had two letters, one in English and one in Spanish. And Manuel Solis-Law Office offered attorneys fees starting at $40 with three or more violations at $30 each.

Lawyers from the five firms that mailed the ads did not return repeated calls for this column.

But David Sprecher, a lawyer who handles traffic tickets but doesn't send out mailings, did return my call. He says he's old school and started practicing back when it was against the rules to mail ads to prospective clients. Since then, folks with traffic tickets, DWIs, other misdemeanor charges and even sometimes felonies find that lawyers use open records laws to get lists of people facing charges and then troll their mailboxes.

"I think it's hurt the image of lawyers. Doctors don't do it, you don't get notice of a special on kidney transplants half off," Sprecher said. "You can't be in a profession and send out mailings outbidding the competition."

Sprecher rues the day the state bar allowed the ads. But the bar was only doing what the U.S. Supreme Court mandated. The high court has said attorneys have rights, too, and many legal services ads are a protected form of commercial speech.

The Supreme Court has called the disdain for lawyer advertising a "rule of etiquette" not a "rule of ethics." Wonder what Zapata would say.

Last column

This will be my last column on the business of the law. I'm happy to report that the first week of August I'll be taking over the Chronicle's federal courthouse coverage. This has been fun, but courthouses are fun, too.

Unusual togetherness

Chicago-based litigation boutique Eimer Stahl Klevorn & Solberg opened a Houston office sharing space with the criminal defense firm of DeGuerin & Dickson. Eimer lawyers and Dick DeGuerin worked together last year on an environmental criminal case the U.S. brought against Citgo. The Chicago firm coordinated documents and prepared motions and memorandums and aided on witness preparation. DeGuerin did the courtroom work — cross, direct and argument.

"The team fit together so well that we decided to work together on a case-by-case basis in the future. I'm renting office space to Eimer Stahl, and we'll joint-venture similar cases in the future, concentrating on white-collar and environmental crimes," DeGuerin said. "I think the deal with Eimer Stahl is very promising for both our firms and that it broadens the services both firms can offer our clients."

It's Dallas but important

Former Texas Supreme Court justice Deborah Hankinson opened a new appellate boutique in Dallas with Jeffrey Levinger, who headed the appellate group at Carrington, Coleman, Sloman & Blumenthal .

The six-attorney firm Hankinson Levinger is sure to be a statewide player "handling all aspects of state and federal appeals and collaborating with trial teams on pre-trial and trial briefing, advocacy, and strategy," according to a public relations release.

Hankinson was at Thompson & Knight before she sat on the 5th District Court of Appeals in Dallas and then the Texas Supreme Court. Other attorneys joining Hankinson Levinger are Brett Kutnick, William Richard "Rick" Thompson II, Elana Einhorn and Kate Ross.

Legal pad

• The Houston office of Baker & McKenzie has a new managing partner — intellectual property lawyer Lisa Meyerhoff. She started the job July 1. Meyerhoff came with an IP group that left Jenkens & Gilchrist more than three years ago. She replaces former Houston office managing partner Susan Stone.

• Meyerhoff's office plucked new partners David Chaumette from Shook Hardy & Bacon and Cristopher Farrar from King & Spalding.

• Sedgwick, Detert, Moran & Arnold's Houston office has added Joseph Larsen as special counsel and Jacob De Leon and Collin Warren as associates. Larsen, a longtime lawyer for the Chronicle, is joining the media, sports and entertainment group. De Leon and Warren will be working with the commercial and insurance groups.

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Show Me the Money
The Texas Observer
July 17, 2008
by FORREST WILDER

While many of you are enjoying summer vacations and trying to stay as far away from politics as possible, we've been picking through the semi-annual campaign finance reports over at the Texas Ethics Commission website, and all this money is making us feel a little dirty. In Texas , there are no limits on how much an individual or PAC can contribute to a candidate. Each election cycle, fat-cat donors like homebuilder Bob Perry typically spend more money on pols than most of us earn in a year. And the races are only getting more expensive.

Even some lawmakers have been heard grumbling that things have gotten out of hand. Raising money is time-consuming and cuts into the business of legislating. Plus, no one likes begging — even politicians. It's an obscene system, but even the most reform-minded pols have to raise - and spend - oodles of cash just to mount a viable campaign. Dollars don't win elections all by themselves, but they sure do help.

With that in mind, we're revisiting some of the key House races we profiled in May to see how the candidates are doing on the money front. Here's a batch of four. We'll be back tomorrow with more.

•  Juan Garcia-Todd Hunter. District 32, Corpus Christi . One of the most closely watched and hotly contested races this season. One of the most expensive, too. Democratic golden boy Garcia added $402,000 to his already-fat war chest between January and July. He has $522,000 on hand. Hunter, an attorney-turned-lawmaker-turned-lobbyist-turned-candidate, pulled in $301,000, with $165,000 still in the bank after spending $191,000 already. Notable — and predictable — Hunter donors include Bob Perry ($5,000); former District 32 Rep. Gene Seaman ($10,000); and UT Regent, Bush Pioneer, and Very Rich Man Robert Rowling ($20,000). Garcia collected $9,020 from San Jacinto Title Company President Brent Bottom and a whopping $75,000 from HEB empresario Charles Butt. Neither candidate should have a cash problem. The question is, can they spend that much cash effectively?

•  Diana Maldonado-Bryan Daniel . District 52, Round Rock. These two are fighting over the Williamson County seat vacated by retiring Republican Rep. Mike Krusee (R-Round Rock). The district is close to evenly split between Ds and Rs. Maldonado is leading the fundraising contest so far. Over the past six months, she's raised $145,000 to Daniel's fairly anemic $41,000. Maldonado has $130,000 in the bank; Daniel has about $32,000. Maldonado is certainly feeling the love from Austin 's liberal establishment and education groups. The Education Austin PAC chipped in three Gs while Education Round Rock COPE gave up $2,000. Annie's List, an organization that raises money for women Democrats, gave her $25,000. Daniel is leaning heavily on business PACs for his money, and they've contributed almost $22,000 to his campaign so far, more than 50 percent of total contributions. Dallas radioactive waste titan Harold Simmons has given Daniel $4,000; Bob Perry gave $2,500; and the Tom Craddick-tied Empower Texans has contributed $1,386 of in-kind “voter contact” work.

•  Joe Heflin-Isaac Castro . District 85, South Plains. With inexpensive media markets in this sprawling West Texas district, money is probably less of a factor here than elsewhere. On the other hand, a lot of $4 gas is gonna get burned politicking the district's 15 counties. Republican challenger Castro and Democratic incumbent Heflin are almost evenly matched, with Castro having raised $50,000 to Heflin's $49,000. Oil and gas money is flowing out of Midland-Odessa to both candidates, but Castro is pulling in the lion's share. His major donors include loyal Bushie Don Evans ($1,000); Abilene investor Dian Graves Stai ($5,000); and, not surprisingly given the “frivolous” lawsuits pending against Castro, Texans for Lawsuit Reform PAC ($17,000). Reflecting his anti-voucher bent, Heflin is pulling down donations from the public school set. ACT for Texas Classroom Teachers Association and the Association of Texas Professional Educators each gave him $2,000. Charles Butt, of HEB fame, ponied up $5,000.

•  Joel Redmond-Ken Legler . District 144, Pasadena . Conservative Democrat Redmond is playing hard for this Republican district in Pasadena , whupping Legler on the dialing-for-dollars front. Redmond raised $104,000 over the past six months while Legler, after a brutal primary, managedonly $33,000 between April and July. Legler moves into the next phase with zero in the bank; Redmond has $87,000. In May, Redmond told the Observer he expected to be outspent 2 to 1. But, he extolled the virtues of raising lots of small donations from hundreds of people (as a Baptist preacher he has experience passing the collection plate). True to form, Redmond 's campaign finance report shows that the bulk of his money has come from individuals giving small amounts. Redmond has also garnered financial support from the Teamsters, Pipe Fitters, and Plumbers locals; Democratic Reps. Pete Gallego and Scott Hochberg; and Houston-area attorneys. Legler is counting Benjamins from an array of industry PACs and Bob Perry ($27,500 since late February). Texans for Lawsuit Reform have found it in their hearts — and deep pockets — to give Legler $5,000.

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Not many years ago, Texas faced a health care crisis created by skyrocketing medical liability premiums. Voters responded by passing Proposition 12 in 2003 capping non-economic damages in medical liability claims and enabling the medical community to deliver on its promise to improve health care.

During the past four years, Texas has licensed more than 10,000 doctors, a 30 percent increase from the four years previous. Contrary to the rhetoric of those looking to undo the progress created by legal reform, none of the state's new doctors have been accused of harming patients. In fact, according to The New York Times, only one-tenth of 1 percent of those new doctors has been subject to disciplinary action of any kind.

Legal and medical liability reform has dramatically helped your fine local hospitals as well. Good Shepherd Health System has been able to expand its neonatal intensive care unit, obtain and maintain a Level II Trauma designation and recruit physician specialists essential to meet your growing community needs. Savings resulting from a less litigious environment help Good Shepherd and other hospitals across the state maintain financially sound organizations, especially in the face of the rising costs of providing care to the uninsured and under-insured Texans.

In the three years or so following the passage of Proposition 12, charity care rendered by Texas hospitals increased 24 percent. Without the financial stability brought on by Proposition 12 this $594 million increase in charity care would have forced many Texas hospitals to make the stark choice of turning away patients or closing their doors altogether.

Passage of Proposition 12 also ensured that patients who have been injured receive the justice they deserve without having to wait in line behind a slough of questionable lawsuits. At the same time, liability reform balances justice with the need to continue pursuing medical innovations and treatments that can benefit millions.

When it comes to health care access and economic growth, legal reformers must remain vigilant and continue to make the needed progress for Texas and its citizens.

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LETTERS: Rebutting 'crooked' article
Houston Chronicle
July 15, 2008

In his Sunday Outlook essay, "The cost of crooked lawyers / Recent wave of legal malfeasance affects us all, even reform-minded Texas," Richard Weekley ironically attacks the legal profession by listing a few powerful and wealthy lawyers, mostly not from Texas, who committed crimes and were caught and punished by the same legal profession he assails. Weekley's opinion essay confirms that our justice system works. No one is above the law.

Unfortunately, there are a few lawyers who have failed to live up to the high standards demanded by our profession. And they are being held accountable. There are also people in all walks of life who have crossed the line — including business executives, doctors, athletes and even homebuilders. Weekley states that "I will not paint [all lawyers] with so broad a brush," but then criticizes lawyers for their negative "collective impact." Weekley's distorted generalizations do a disservice to the thousands of hardworking, honest lawyers who faithfully represent clients, including individuals who have been injured, those accused of crimes, individuals who seek counsel in family or estate matters or business entities who need legal representation. Contrary to the author's assertion, most lawyers' motivation is simply to provide access to justice through sound legal advice and representation of their clients.

In fact, Houston lawyers annually donate thousands of hours of free legal service to those who cannot afford it. The Houston Bar Association is dedicated to protecting our civil and criminal justice system and to providing access to justice for all our citizens. Houston lawyers provide free legal services to hundreds of important causes each year. The "cost" of such service is free.

Weekley bemoans that lawyers' actions "undermine a common belief in justice and respect for the law." To the contrary, thousands of lawyers in our great city support our legal system, the rule of law and access to justice every day.

TRAVIS J. SALES, president, Houston Bar Association

Why stop there?

Richard Weekley has a valid point when he states that there are too many personal injury trial lawyers whose motivation is greed, rather than justice or the interest of their clients. But why limit the criticism to personal injury trial lawyers, when the same could be said of lawyers in most areas of specialization?

Weekley's credibility really plummeted when he quoted "nationally recognized economist Ray Perryman." The Chronicle's own Rick Casey pointed out in a column in May: "The fact is, Dr. Perryman, a Rice University graduate based in Waco, has long held a reputation for providing numbers pleasing to whatever group hires him."

TED BRUNO , Houston

Homebuilders worse

I have never seen a piece of garbage in print as bad as "The cost of crooked lawyers" Outlook article. I used to be a defense attorney and worked at the most prominent homebuilder defense firm in Texas, and homebuilders rip off consumers more than any trial lawyer in history. There were times when builders built a horrible house with a bad foundation and then they'd claim "Texas soils shift," when it was actually a badly poured foundation. As the walls of the house would crack and fall, the homeowners' lives in ruin because their dream home was destroyed, the attorneys I worked with and the builders would laugh, knowing that Texas law allows a homeowner no real recourse.

Since 1989, when a plaintiff's attorney went on 60 Minutes and bragged he had the Texas Supreme Court bought and paid for, there has been nearly 20 years of "tort reform" lobbyists in Texas. While the targets are trial attorneys over and over again, when has the Chronicle ever really done serious front-page journalism on the real people harmed, the people who are injured?

AARON A. HERBERT, attorney, Dallas

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McAllen reaches settlement with police union
The Monitor
July 14, 2008


McALLEN - City and police union leaders have reached an undisclosed settlement in a lawsuit that could also end their longstanding feud, attorneys said Monday.

McAllen City Attorney Kevin Pagan said he expected an announcement on a settlement in the next two or three weeks.

"I just want to wait and see," he said.

The union's attorney sounded a bit more definite.

"It is settled, but there's going to be a joint press release with the details" later, said Bobby Garcia, who represents the McAllen Police Officers Union.

The police and fire unions filed suit against the city of McAllen in March 2007 over what they claimed was "biased" language in a ballot item for the upcoming election asking voters whether to allow binding arbitration in labor negotiations.

Union officials maintained the ballot language negatively portrayed binding arbitration, a common legal practice whereby two sides go before an independent panel outside the court system for a ruling on their case.

The proposition was left off the ballot after state District Judge Aida Salinas Flores ordered city officials to rewrite it, a decision they unsuccessfully appealed to the Texas Supreme Court.

Union president Ed Suarez declined to discuss whether the settlement would place the matter back on voters' ballots, but he said he would continue to campaign for binding arbitration.

"(Binding arbitration) helps resolve problems a lot faster," he said. "I think whatever settlement we made it's for the best for both sides."

A settlement on the ballot case would end nearly two years of bickering that first appeared to dissipate in January, when the union and city agreed on the police officers' latest labor contract. The contract had been tied up since 2006 over union demands for increased retirement benefits.

The only remaining litigation in the legal mess is a suit former union president Mike Zellers filed against Mayor Richard Cortez last year.

Cortez spoke on a talk radio program in January 2007 and made allusions to Adolph Hitler and Saddam Hussein when asked about the city's trouble with the police union, of which Zellers was then president. Zellers, filing the suit in his then-official capacity as union president, claims the reference to Hitler was an underhanded remark on his German heritage.

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Colossal class action hits Texarkana
Southeast Texas Lawyer
July 14, 2008
by Steve Korris and Scott Sabatini

TEXARKANA, Ark. (Legal Newsline) - Like the common lore, everything may be bigger in Texas, except, it seems, when it comes to staggering legal action. Nobody tops Texarkana, Ark., these days.

Everything about the case known as "Colossus" - often called the largest class-action lawsuit ever filed in America - is super-sized.

The case centers on a complaint alleging that hundreds of insurance companies worked with three software companies to undervalue auto claims.

A program called "Colossus," the plaintiffs argued, allowed insurers to undervalue claims, which the plaintiff contends is a conspiracy to commit fraud.

The lawsuit originally named 581 insurance companies. Settlements have reportedly approached $300 million and plaintiff attorneys have already shared $73 million in fees.

"This is your typical sort of class-action shakedown," said Jim Copland, director of The Manhattan Institute for Policy Research. "The discovery costs are massive, that's what this is really about."

Indeed, many defendants remain mired in legal motions. Those companies that have settled said they did so in light of the enormous legal costs that could mount in a case this size.

Those firms that haven't settled are finding out the hard way - and the expensive way - that those original predictions may have actually underestimated the time and costs involved in sifting through bodily injury files from 1996.

To date, Miller County Circuit Judge Kirk Johnson of Texarkana has yet to rule on more than 60 motions in the case of Georgia Hensley et al v. Computer Sciences Corporation et al. - a pile of paper that has clearly kept copiers, not to mention legal staff, lawyers and court employees working overtime.

Last month, Johnson did enter two significant orders favorable to plaintiffs, which in effect keep the litigation moving forward.

He granted plaintiffs' motion to "sever" defendants USAA, ANPAC, GEICO, Claim IQ, Inc. and Computer Science Corporation, stating the "obvious reason" for doing so is that non-settling defendants whose motions are denied along the way will "appeal any decision not favorable to them."

And after waiting nearly three years for Johnson to rule on technical motions to dismiss, for such reasons as improper service and non-settling defendants, the requests were flatly rejected in an order entered last month.

"The defendants' convoluted reasoning on the issue defies understanding and it is merely grasping at straws with the argument," Johnson wrote.

While Johnson is partially rec