Texas Lawyer Blog

Subtle hint from the Supremes

If the U.S. Supreme Court’s decision yesterday to spare the life of one Earl Wesley Berry means anything, it’s that trial and appellate courts across the nation shouldn’t bother setting execution dates or affirming death sentences for awhile. Last week, the Mississippi death row inmate made an 11th hour appeal to 5th U.S. Circuit of Appeals, asking for a emergency stay of execution, because the high court is considering Baze v. Rees to determine whether lethal injection is cruel and unusual punishment. Berry had exhausted all of his appellate routes and had little left to stop his execution other than the last minute Baze v. Rees appeal. Seemingly annoyed in its per curiam opinion in Berry v. Epps, the 5th Circuit denied Berry’s request, telling him he’d filed too late. The Supreme Court didn’t say why it was granting Berry a stay. But it doesn't have to. A majority of the Supreme Court justices are saying that they don’t care if the devil himself has a pending execution (although Justices Antonin Scalia and Samuel Alito say in the brief order they oppose Berry’s stay), they aren’t going to allow another one until Baze v. Rees is decided.
-- John Council

Injured Harley rider sues

A motorcycle driver seriously injured in a collision that occurred after he used an unofficial cruise control method is suing Harley-Davidson Motor Co. Inc. for including the enabling device on his motorcycle. The complaint in Coffman, et al. v. Harley Motor Co. Inc., filed Oct. 26 in U.S. District Court for the Northern District of Texas, relates the following facts: On Sept. 16, 2006, while traveling at 65 to 70 m.p.h. on his new Harley-Davidson Softail Classic Model FLSTC motorcycle on a trip from Plainview to Lubbock, motorcyclist Donald Coffman's hand began to tire from gripping the throttle control grip on the motorcycle's right handlebar. So to give his hand a break, he adjusted "a spring loaded throttle friction adjustment screw," which according to Coffman's suit is "commonly known among Harley-Davidson riders as a poor man's cruise control." On older motorcycles, the suit states, the screw used to be used to aid in warming up the engine, but a computer does this in newer Harley models. As Coffman approached a curve in the road, he attempted to slow down and return the screw to its original position so "he could close the throttle control grip and lower the speed or the motorcycle." But Coffman was unable to do so, and his attempt to apply the motorcycle's foot brake did not slow him down enough. Coffman collided with a concrete barrier, his left arm was torn off, and he suffered severe injuries to many parts of his body. Coffman is suing Harley-Davidson for products liability, alleging that the bike was defective and unreasonably dangerous, because it featured the spring-loaded throttle friction adjustment screw.
-- Jonathan Fox

Correction

Last week, I wrote about a group of lawyers in the Texas Association of Defense Counsel who are organizing a support network for members struggling with depression, alcoholism, drug addiction or similar problems. The firm name and status for one of the organizers, Max Wright, a defense attorney in Midland, were incorrect. Wright is a partner in New Mexico-based Hinkle, Hensley, Shanor & Martin.
-- Brenda Sapino Jeffreys 

Taking a gander at voir dire

Seniors from nine high schools in Harris County will get a chance to go through voir dire on Nov. 1 when they visit one of 10 Harris County courtrooms to learn about the jury selection process. The goal is to make the students, who may be eligible to serve as jurors once they turn age 18, comfortable with the jury-selection process. This is the eighth year the Houston Bar Association and the Harris County judiciary have sponsored the program. The 10 judges will tell the students about the jury selection process, and lawyers in each courtroom will conduct a mock voir dire based on a case story written by some judges and lawyers. It sounds like fun for the students; hopefully it will make some of them less likely to ignore the jury summonses delivered to their mailboxes in the future. The civil-court judges participating include 215th District Judge Levi Benton, 234th District Judge Reece Rondon, 269th District Judge John Wooldridge, and County Civil Court-at-Law No. 1 Judge Jack Cagle. On the criminal side, it’s 184th District Judge Jan Krocker, 183rd District Judge Vanessa Velasquez and Criminal Court-at-Law No. 8 Judge Jay Karahan. Others are 247th District Judge Bonnie Hellums, a family law judge; 315th District Judge Michael Schneider, a juvenile court judge, and Justice Eva Guzman of the 14th Court of Appeals. 
-- Brenda Sapino Jeffreys

Huge verdict -- oh, never mind

Remember that massive $156 million verdict that Dallas-based TGIP won in September against AT&T from a federal jury in the Eastern District of Texas on TGIP's claim of patent infringement, concerning technology used to activate calling cards? Never mind. In a two-page final judgment order issued Oct. 29, U.S. District Judge Ron Clark granted AT&T’s motions  for judgment as a matter of law on the grounds that AT&T’s product did not infringe on TGIP’s patent, because its calling cards are “linked before activation.” Clark ordered that TGIP take nothing. The order is a subtle reminder for defense lawyers always to remember to file pre-verdict judgment as a matter of law motions. It could wind up saving a client $156 million -- give or take.
-- John Council

5th Circuit denies emergency stay of execution

While executions across the country have slowed considerably since Sept. 24, the day the U.S. Supreme Court accepted Baze v. Rees to determine whether lethal injection is cruel and unusual punishment, it’s still an extremely risky bet for death-row inmates to file 11th hour emergency stays in the 5th U.S. Circuit Court of Appeals based on that case. Mississippi death row inmate Earl Wesley Berry just found that out after he tried to get an emergency stay from the 5th Circuit on Oct 24 -- six days before his scheduled execution. In a per curiam opinion, the 5th Circuit denied Berry’s emergency stay of execution in Oct 26's Berry v. Epps, telling him in so many words: Sorry, you're too late. “Well-established fifth circuit precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out,” the opinion states. This opinion likely will not have great impact on Texas death-row inmates, because there are only three executions currently scheduled --- all of them occurring in 2008.
--- John Council

Lawyer's suspensions at issue in two 6th Court decisions

A defense attorney's law-license suspension caused by his failure to pay bar dues is not grounds for granting the defendant a new trial on appeal, the 6th Court of Appeals in Texarkana ruled in an Oct. 25 decision. "Practicing law when the lawyer's license is suspended is a violation of these rules [the Texas Disciplinary Rules of Professional Conduct] and subjects the attorney to sanctions by the State Bar of Texas," the court notes in Smith v. State. But "failure to timely pay bar dues," the court states, "is a technical violation and is therefore not considered a per se denial of effective assistance of counsel." That holding comes from the case of Elzie Smith, convicted by a jury of possession of a controlled substance and sentenced to 50 years of imprisonment. A police officer stopped Smith for failure to use his turn signal, finding an open container of beer in the vehicle. The officer called for backup, and four to five minutes later a canine unit came. The police dog performed "an open-air sniff of the vehicle, alerted to the driver's side door, and the dog handler found cocaine in the console of the vehicle," according to the opinion. Smith argued that the search was illegal and that the trial court erred in failing to accept his guilty plea, the opinion states, but also argued that he received ineffective assistance of counsel, because his attorney Clyde E. Lee "was on administrative leave due to an untimely payment of his required bar dues." In noting that Lee is subject to discipline for representing Smith while suspended from practicing law, the court noted its precedent by alluding to its 2004 case Hudson v. State, in which "Lee was also trial counsel, and was also practicing with a suspended license due to failure to complete mandatory continuing legal education requirements." The court also notes the Court of Criminal Appeals' 1996 holding in Cantu v. State, in which the CCA held that ineffective assistance of counsel claims in the case of suspended attorneys could succeed only if the attorneys "were suspended or disbarred for substantive reasons," rather than procedural reasons, such as a failure to pay bar dues or complete CLE requirements. Lee could not be reached for comment, because neither the State Bar nor the telephone company had a working telephone number for him.
-- Jonathan Fox

Calling the meat detective

On Nov. 6 when the expected trickle of voters goes the polls to consider 16 constitutional amendments, most people won’t give much thought to voting on Proposition 10, which would eliminate the constitutional office of inspector of hides and animals. But Jeff McMeans, a criminal and family law attorney who is partner in Richmond’s McDaniel and McMeans, will. McMeans has served at the Fort Bend County’s hide and animal inspector for 17 years, ever since he ran for the position in 1989 as a joke. The job, McMeans explains, doesn’t really have any real responsibilities. “You get to ride in the Fort Bend County parade, which is a big parade,” McMeans says. “But there is no office, no pay, no duties.” However, the job was important back in the late 1800s when the post was tasked with stopping cattle rustling and preventing the importation of diseased cattle into Texas. “That was the serious side of it, but it hasn’t been serious for 100 years,” McMeans says. McMeans has a badge and has deputized his friends into the office that does nothing --- its responsibilities have been handled by the Food and Drug Administration for decades, he says. McMeans has inspected a few animals, he says. “I used to get late night phone calls from friends: ‘Is this the meat detective? There’s a dead possum in front of my house.’ ” But McMeans' reign as hide inspector came to an end in 2006: His position was eliminated from the ballot after lawmakers took the position out of the Texas Agriculture Code. But the position officially still exists, McMeans says, because it is still in the constitution. That provision can only be removed by a constitutional amendment, which voters will decide next month. McMeans says he’s definitely voting against the amendment. He’s even mused with his friends about how to, uh, save his hide inspecting post. “We need to get a big billboard to say: ‘Vote No to Proposition 10.' ”
-- John Council

If Mama's not happy, nobody's happy

Mama isn't happy that the Department of Homeland Security has not yet taken action on Mama's application for naturalization -- Elias Mama of Houston, that is. In Elias Mama v. Department of Homeland Security, Through Its Secretary, Michael Chertoff, et al., filed Oct. 24 in the U.S. District Court for the Southern District of Texas, Mama seeks a hearing on his application and alleges that the department has improperly dragged its heels on his application. Mama says that he filed his application for naturalization on June 20, 2003. The department interviewed him on Jan. 15, 2004, and he passed his tests of English and U.S. history. Then nearly four years passed. When Mama made inquiries to find out the status of his application, the petition states, he was told that security checks are pending. Mama says that humanitarian reasons weigh in favor of expediting his application, because he wants to apply for lawful permanent residence for his wife, who is living abroad with their child, so they can join him in the United States.
-- Jonathan Fox

Cable-inspired Halloween costume

Armed with a blond wig and make-up, I made the cut of top 10 costumes at Dallas plaintiffs lawyer Michael Shore’s Fourth Annual Halloween Party on Saturday night dressed as Dog the Bounty Hunter, of A&E cable TV reality show fame. The shindig featured some 500 people who had to be costumed to enter the late night party at Dallas’ House of Blues, and the bands The Dandy Warhols and Collective Soul played. The better costumes included somone who came dressed as Michael Vick with two pit bulls, the entire mid-1970s team of the Harlem Globetrotters and a NASA astronaut wearing an adult diaper.

-- John Council 

E-filing requested in death penalty cases

If a computer crash prevented Michael Richard’s lawyers from filing a motion to stay his execution on Sept. 25, would the ability to file documents electronically at the Court of Criminal Appeals have helped? About 300 Texas lawyers think it would.  On Oct. 24, the lawyers petitioned the CCA to adopt a rule permitting the e-filing of petitions, motions and other documents in death penalty cases.  The state executed Richard around 8 p.m. on Sept. 25 – the same day the U.S. Supreme Court granted a writ of certiorari in a Kentucky case to consider whether execution by lethal injection constitutes cruel and unusual punishment.  However, the high court denied Richard’s petition for a stay shortly before he was executed.  Jim Harrington, director of the Texas Civil Rights Project, says CCA Presiding Judge Sharon Keller’s decision not to keep that court’s clerk’s office open past 5 p.m. on Sept. 25 so that lawyers representing Richard could file a motion for stay “short-circuited” the process, resulting in the Supreme Court’s denial of Richard’s stay. Charles “Chuck” Herring, a partner in Austin’s Herring & Irwin, helped spearhead the petition for e-filing at the CCA.  “This is a very small step toward addressing a massively dysfunctional death-penalty system, but it appears to be a step that would have saved Mr. Richard’s life,” Herring says.  CCA Judge Tom Price, the court’s spokesman, did not immediately return a telephone call seeking comment. Most appellate courts in Texas do not allow e-filing of documents.  Blake Hawthorne, clerk of the Texas Supreme Court, says the state’s highest civil court does allow attorneys to e-mail documents if there is an emergency. But Hawthorne says the court does not consider documents filed until it receives paper copies.  “It is extremely rare for the court to issue any kind of order until the paper copy is here,” Hawthorne says.  Change is coming, however.  Carl Reynolds, administrative director of the State Office of Court Administration (OCA), says the Texas Legislature appropriated $2.3 million in the current two-year budget period so the OCA can begin building the Texas Appeals Management and E-Filing System.  But constructing the system is likely to take some time.
-- Mary Alice Robbins

Kent's Galveston docket moved

It's a safe assumption that some U.S. district judges in Houston will be muttering the name of U.S. District Judge Sam Kent of Galveston under their breath real soon while holding pre-trial hearings on Jones Act cases or some other matters they wouldn’t normally hear. That’s because an Executive Session of the Judges of the U.S. District Court for the Southern District decided to effectively transfer Kent’s Galveston Division to the Houston Division in a pair of orders issued on Oct. 25. All of the Houston judges get a piece of Kent’s docket as a part of their regular caseload as Kent continues a leave of absence until January. Kent was admonished and reprimanded on Sept. 28 by the Judicial Council of the 5th U.S. Court of Appeals related to a complaint of judicial misconduct lodged against Kent alleging “sexual harassment” toward an employee of the federal judicial system. The Oct. 25 orders do put Kent in the case assignment rotation as he will receive 20 percent of the civil cases filed in the Houston Division but will receive no criminal cases filed in either the Houston or Galveston Divisions through Dec. 31.

-- John Council

Annual Red Mass celebrated in San Antonio

St. Mary’s University School of Law and the Catholic Lawyers Guild of San Antonio invite members of San Antonio’s legal community and the public to celebrate Red Mass at 6 p.m. on Thursday Oct. 24. The Red Mass, a Roman Catholic tradition marking the October beginning of the judicial year, will be held at San Fernando Cathedral, 111 Main Plaza. The principal celebrant of the mass will be San Antonio Archbishop José H. Gomez. Rev. John Leies, president emeritus and professor of theology at St. Mary’s University, will deliver the homily. Texas Court of Criminal Appeals Judge Barbara Hervey will discuss the meaning of the gathering prior to the mass’ final prayer. The first-recorded Red Mass dates back to 1245 in Paris. The mass eventually became an annual tradition in England honoring the start of the new court term and was adopted in the United States in New York City in 1928.  Sister Grace Walle, St. Mary’s law school minister, says that this year’s annual mass will be San Antonio’s 55th. She also notes that San Antonio’s Red Mass is one of the few in the United States hosted by a law school. “We’ve had this tradition, from our deans of years ago,” she says. She says this year’s Red Mass supporters and participants include members of many legal organizations including  St. Mary’s Law Alumni Association; St. Mary’s Hispanic Law Alumni Association; San Antonio Bar Association; State Bar of Texas; San Antonio Chapter of the Federal Bar Association; Bexar County Women’s Bar Association; Mexican American Bar Association of Texas; San Antonio Black Lawyers Association; San Antonio Criminal Defense Lawyers Association; the State Bar’s paralegal division; and the San Antonio Young Lawyers Association.

-- Jeanne Graham

Southwick confirmed for 5th Circuit

After years of hard-boiled political battling, the U.S. Senate finally filled Mississippi’s long-vacant seat on the 5th U.S. Circuit Court of Appeals by approving the nomination of Leslie H. Southwick today, the Associated Press reports. President George W. Bush’s two previous nominees for this post, Charles Pickering and Michael Wallace, both hit brick walls in the Senate for different reasons. Southwick previously served on the Mississippi Court of Appeals for 11 years and as an assistant U.S. attorney.  The president nominated Southwick, a Texas native who has lived in Mississippi since the 1970s, in January. The 5th Circuit seat had been vacant since 2004.

-- John Council

Decision comes after death

Archie Doyle Martin Jr. never learned the outcome of his appeal of a 2005 conviction for felony driving while intoxicated. In his appeal to Houston’s 1st Court of Appeals, Martin alleged he was provided ineffective assistance by his trial counsel, Houston solo Walter Boyd, who called Martin a liar and commented this his life was “ a dadgum mess” during the trial. In a 2-1 decision on Sept. 20, the 1st Court affirmed Martin’s conviction and said that Martin did not receive ineffective assistance of counsel at trial. Boyd says he did nothing wrong at Martin’s trial. It’s no longer an issue, however. By the time the 1st Court decided Martin v. State, Martin was dead. Houston solo Jerald Graber, Martin’s appellate attorney, says he learned recently that his client was found dead in Baytown on Feb. 27, 2006. On Oct. 19, Graber and Shirley Cornelius, the Harris County assistant district attorney handling Martin’s case, filed a motion in the 1st Court to dismiss Martin’s appeal.  It’s a strange ending to a strange case.
-- Mary Alice Robbins

Justice on tour

If the Dallas County Democrats, fresh off their election year courthouse romp, think that conservatism is dead in their county, they had best think again. On Oct. 23, 1,560 people gathered in a large ballroom at the Adam’s Mark Hotel in downtown Dallas to listen to a lunchtime chat by U.S. Supreme Court Justice Clarence Thomas who is on tour promoting his recently released memoir titled “My Grandfather’s Son.” The Heritage Foundation, a conservative think-tank that believes in limited government, free enterprise, traditional values and a strong national defense, and the Federalist Society, a conservative legal network that believes in the principle of judicial restraint, sponsored the event, which according to the Heritage Foundation was the largest event it has staged outside of Washington, D.C., in its 34-year history. Among the assembled were Texas Supreme Court Justices Nathan Hecht and Dale Wainwright, former White House Counsel and former U.S. Supreme Court nominee Harriet Miers, and 5th U.S. Circuit Court of Appeals Judge Priscilla Owen. We were treated to sliced chicken on a bed of lettuce (the portions were small, and I ate two because the seat next to me was vacant). Then Thomas and former Delaware Gov. Pete du Pont took the stage and seated themselves in high back chairs for what was designed to be an informal interview session— that is, with du Pont asking the questions (something Thomas is loathe to do from the bench) and Thomas answering the questions (something Thomas did quite comfortably and candidly). Thomas dealt with some preliminary questions about how cert petitions are granted. There was nothing conspiratorial about it, he said -- and convincing another justice to actually change his or her mind regarding a legal issue was “almost a Smithsonian moment.” Du Pont then took Thomas through various portions of his book, giving Thomas a chance to re-tell the challenges he has overcome as he raised himself out of poverty to become a Supreme Court justice. Thomas said he felt that the “greatest person” he had ever known was his grandfather who at middle age, had taken on the responsibility of raising him. He listed Margaret Thatcher, Ronald Reagan, William Churchill and Abe Lincoln as other individuals he admires. He said he wrote his book to “set the record straight,” although professor Anita Hill, his nemesis at his confirmation hearings 16 years ago, maintains that the portion of the book dealing with her role in the hearings does nothing of the sort. He spoke strongly against the judicial nomination process, which he said has been hijacked by interest groups more concerned with judicial outcome than judicial neutrality. Yet despite his feelings about how politicized the process has become, he remained decidedly charming, humorous and eloquent throughout the interview. The crowd was his from the get-go, giving him three standing ovations. Even if a listener didn’t agree with his judicial philosophy (maybe there was two of us in the crowd), you couldn’t help but be impressed by his compelling life story, which was available in hardback at the ballroom entrance for the list price of $26.95.

-- Mark Donald

Battery charger suit

A suit against Black & Decker Inc., the appliance manufacturer, has prompted me to unplug the various battery chargers that clutter my home. In Fire Insurance Exchange, et al. v. Black & Decker (US) Inc., Doing Business as DeWalt Industrial Tool Co., filed Aug. 27 in Tarrant County district court, Fire Insurance Exchange alleges that a defective DeWalt cordless drill battery charger kit manufactured by Black & Decker caused a fire at the Greens' Southlake home on March 22, 2006. Fire Insurance Exchange paid the Greens' property insurance claim and is now suing Black & Decker as the Greens' subrogee alleging negligence and products liability. On Oct. 22, Black & Decker denied the allegations and removed the suit to the U.S. District Court for the Northern District of Texas.
-- Jonathan Fox

Place 7 bench draws another Democrat

On Oct. 22, I wrote about Houston attorney Samuel A. “Sam” Houston’s bid for the Democratic nomination for the Place 7 seat on the Texas Supreme Court.  However, another Democrat says he also plans to join the race. Dallas solo Baltasar D. Cruz filed a treasurer designation in June in a race for a district judge’s seat in Dallas, according to the Texas Ethics Commission Web site. But Cruz says in an interview and on his Web site at cruzforjudge.blogspot.com that he will enter the Place 7 race. Texas Supreme Court Justice Dale Wainwright, a Republican, currently holds the Place 7 seat.  On his Web site, Cruz announces several new ideas for improving the state’s justice system. One of his suggestions is to require trial judges to read all timely filed motions and responses before ruling on the filings.
-- Mary Alice Robbins

A support network for lawyers

Stan Perry, a partner in Haynes and Boone in Houston, says he and other members of the Texas Association of Defense Counsel are shocked and saddened by the untimely death last summer of a member, who had been a partner in a Houston firm. “We all perceived [him] as a hard-working, successful man grounded in his family and faith. It kind of sent shock waves,” Perry says. So Perry, Max Wright, a shareholder in Wright & Jackson in Midland, and Jo Ben Whittenburg, a senior partner in Orgain Bell & Tucker in Beaumont, are organizing a Members Services Committee to provide a support network to offer help to members who may be struggling with depression, alcoholism, drug addiction or similar problems. “Depression and addiction run pretty rampant in the legal profession. For a professional association, we should try to do what we can,” Perry says. He says they hope to have the TADC offer continuing legal education courses for members interested in training to serve on the Members Services Committee. “We’re just trying to do something here,” Perry says.

--Brenda Sapino Jeffreys

It ain’t over ’til it’s over

Houston criminal-defense attorneys Jack Zimmermann and Kyle Sampson, both ex-Marine lawyers, have plenty of savvy with the military justice system. They know that an investigating officer’s recommendation of dismissal in an Article 32 investigation hearing is no guarantee that the “convening authority”--who has ultimate say over whether the case goes to a court martial --will follow that recommendation. Yet that savvy cannot stem the disappointment these lawyers felt when they learned on Oct. 19 that the convening authority, Lt. Gen. James Mattis, had overruled the recommendation of investigating officer Lt. Col. Paul Ware and referred to a court martial criminal charges against their client, Lance Cpl. Stephen B. Tatum. The government had charged Tatum for his involvement in the alleged murder of 24 Iraqi civilians in an incident that occurred on Nov. 19, 2005 in Haditha, Iraq. Zimmermann led a four-man defense team that represented Tatum against allegations that Tatum was responsible for the “unpremeditated murder” of two civilians -- both Iraqi children -- the negligent homicide of four other Iraqi civilians, and the assault of one other. Mattis dismissed the charges of premeditated murder and negligent homicide.  Instead, he referred to a general court-martial two charges of involuntary manslaughter, one charge of reckless endangerment and one charge of aggravated assault. Tatum faces his maximum prison exposure on the involuntary manslaughter charges, which each carry a punishment of up to 10 years of confinement. In an e-mail, Zimmermann and Sampson, who spent 10 days in July at Camp Pendleton in California defending the Article 32, say that Tatum “did not commit any crime. . . . We will vigorously challenge the government’s case, and nothing will be left undone in defense of this fine young Marine.” Making a similar contention that they did in the Article 32,  Zimmermann and Sampson write that the referral of charges “imperils every young Marine and soldier who faces split second decisions in combat.” The Marine Corps press release maintains that Mattis made his decision “after consideration of information developed from investigations by Marine, Army and Naval Investigation Services Investigators, as well as evidence produced during an Article 32 investigation hearing.” The press release adds that the Marine Corps “is committed to a fair proceeding,” which Zimmermann and Sampson say they still believe. “We remain convinced that the military justice system eventually will reach the right result.” No date has yet been set for the court-martial proceeding.

-- Mark Donald

Counting the counts

There were so many family members and reporters who wanted to see the verdict delivered in United States v. Holy Land Foundation for Relief and Development, et al  in Dallas today that numerous television, print and radio reporters got stuffed into a U.S. magistrate judge's courtroom to watch the verdict via webcam. The toughest part of reporting the verdict was keeping track of the jury's decisions on each of the counts. With six defendants, each charged with dozens of offenses, the total charge count was well over 100. One newspaper reporter flipped over her notebook and created a makeshift chart to log all of the counts as Chief U.S. District Judge A. Joe Fish read them off of the returned jury charge. Even after the verdict was read, five reporters compared notes to make sure they had recorded the counts correctly. Because three jurors told Fish during a poll that they didn’t agree with the verdict, he sent all 12 jurors back for more deliberation. But in the end it didn’t matter because Fish declared a mistrial after the jurors ultimately could not reach a unanimous decision on a majority of the counts. Only one defendant was acquitted because the jury unanimously agreed that he was not guilty on all counts. So if reporters had trouble tracking the counts, think how hard it was for the jurors who spent four weeks going over them during deliberations. Here’s an unsolicited suggestion for the prosecutors who intend to retry the case --- lose some of the counts, or lose the jury, again.

--- John Council

California firm attracts another Texas suit

Another Texas firm has sued the California firm Hackard & Holt over a fee dispute. In the first suit, filed on July 6 and later removed to federal court, Dallas-based Gruber Hurst Johansen & Hail alleged that Hackard & Holt of Sacramento, Calif., and its two attorneys, Michael Hackard and Theodore J. Holt, owed it nearly $75,000 in fees associated with defending Hackard & Holt in two breach-of-contract suits filed in Texas and Missouri in which Hackard & Holt was accused of nonpayment of legal and expert witness fees associated with fen-phen litigation. Now, Houston-based Clark, Depew & Tracey and firm partner Clayton A. Clark are suing Hackard & Holt and its name partners over a fee arrangement regarding fen-phen litigation. In Clark, Depew & Tracey, et al. v. Hackard & Holt, et al., filed Aug. 24 in state district court in Galveston and removed to the U.S. District Court for the Southern District of Texas on Oct. 18, Clark, Depew alleges that it provided a "litigation package" to Hackard & Holt regarding the representation of fen-phen clients. Clark, Depew alleges that the parties agreed to split 50-50 the settlement fees derived from those clients, but Hackard & Holt failed to pay in accordance with the agreement after the cases settled.
-- Jonathan Fox

A familiar name

A man with one of the best-known names in Texas plans to run for the state Supreme Court.  Samuel A. “Sam” Houston, a partner in Houston’s Cruse, Scott, Henderson & Allen, filed a treasurer designation – the first step in launching a bid for state office – with the Texas Ethics Commission on Oct. 10, according to the TEC’s Web site. Houston, a civil trial attorney whose practice areas include professional responsibility, real estate and commercial litigation, plans to run for the Democratic nomination for Place 7 on the all-Republican Court. Justice Dale Wainwright currently holds that seat.  If a name gives advantage, Houston could fare well in the 2008 race. As any Texas history buff knows, Sam Houston served as president of the Republic of Texas and later as governor of the state. 
-- Mary Alice Robbins

A win for his clients

Remember Mayer Brown partner Steve Selsberg, the lawyer who parlayed a random referral into a big bucket of business for Carlos Slim Helu, who may be the richest man in the world? In September, I wrote a feature on Selsberg and how the one-time trial and appeals lawyer for Big Tobacco became a litigation lawyer-of-choice in the United States for Slim and other Mexican clients. Selsberg, who lives in Houston, has been traveling frequently this year to Los Angeles to help defend the Diocese of Techuacan and Cardinal Norberto Rivera in a high-profile suit filed in the Superior Court of the State of California. The plaintiff in Joaquin Aguilar Mendez v. Cardinal Roger Mahony, et al. alleges the defendants, including Selsberg’s clients, conspired to protect a Mexican priest accused in the alleged sexual assault of a child. Selsberg’s clients denied the allegations, and challenged jurisdiction. Selsberg’s efforts were rewarded on Oct. 16, when Los Angeles Superior Court Judge Elihu Berle dismissed the suit against Rivera and the diocese on jurisdictional grounds. Selsberg is pleased to win the ruling from Berle, but says his work for the cardinal and the diocese isn’t done. Selsberg says he expects the plaintiff in Mendez v. Mahony to appeal the ruling dismissing his clients. Also, Selsberg says, his clients were named as defendants in a similar suit filed recently in Los Angeles. “It’s the exact same case with a different plaintiff,” he says.

-- Brenda Sapino Jeffreys

Emergency motions

Please, no pushing or shoving, but the 5th U.S. Circuit Court of Appeals wants to know exactly what lawyers think about its new rules concerning emergency motions. Apparently the court is addressing the problem of people abusing the idea of what an emergency is, so it has redrafted 5th Circuit Rules 27.3 and 27.4, which govern everything but capital murder appeals in which an execution has been scheduled. The rules involve common sense -- such as requiring a telephone call to the clerk's office before 2 p.m. Central time to advise the court of the motion on the day of filing (you want to make sure judges are around to vote on it). They also require that the motion be labeled “Emergency Motion” and state the reason for the emergency (makes sense). But hurry. The comment period ends on Dec. 1.

-- John Council

Hurry up and wait

The defense and prosecution alike will have to wait until Monday at 10 a.m. to learn the outcome of a jury's 19 days of deliberations in USA v. Holy Land Foundation for Relief and Development, et al. U.S. Magistrate Judge Paul Stickney told those gathered in a Dallas federal courtroom today expecting to hear the jury's conclusions that they would to wait until U.S. Chief District Judge A. Joe Fish, who presided over the HLF trial, returned from an out-of-town trip, so he could receive the verdict personally. Stickney said the outcome of jury's lengthy deliberations would remain under seal until then.
-- Miriam Rozen

Citizens' posse corrals drunk driver

In a riveting opinion that recounts the story of a convoy of tow-truck drivers who tailed a  drunk driver through the streets of Houston and corralled him until the police arrived, the Court of Criminal Appeals on Oct. 17 held that such citizen's arrests are OK in Texas. In Lawrence Preston Miles v. State, the CCA recounts the facts of the case. A purple Corvette driven by Lawrence Preston Miles rear-ended a limousine full of pro football players  waiting at a stop light at 1:45 a.m. on an unknown date. The football players got out of the car to inspect the damage, according to the opinion, and they judged Miles to be intoxicated. The limo driver tried to obtain Miles' insurance information, the CCA stated, but Miles fled the scene before police arrived. Several tow-truck drivers already at the scene gave chase. At one point, the CCA states, Miles crossed the yellow line and drove in the wrong lane. In response, the CCA stated, one of the tow-truck drivers turned on his overhead light to alert other drivers and pedestrians and followed Miles into the wrong lane. When the tow-truck drivers eventually cornered Miles in a parking lot, one of them said Miles pulled a gun on him, the CCA wrote, but the driver escaped unharmed, and the police showed up a few minutes later. The driver, who was charged with DWI and unlawfully carrying a weapon, pleaded guilty after losing his motion to suppress. The case before the CCA settled the question of whether evidence gleaned as a result of a citizen's arrest can be excluded if a citizen breaks traffic laws to make the arrest. No problem, says the CCA. "[N]o one -- neither citizen nor police officer -- must obtain an arrest warrant before attempting to protect the public welfare from this type of reckless driving while intoxicated," the CCA states. "These are precisely the type of exigent circumstances that the Texas Legislature envisioned when it explicitly authorized a citizen's arrest for an offense against the public peace."
-- Jonathan Fox

Change looms at 10th Court

Justice Bill Vance of Waco’s 10th Court of Appeals has announced he will not run for a fourth term in 2008.  “I just thought I owed it to everybody to let them know,” Vance says, noting that he has heard of several candidates interested in his job. One potential candidate is former 10th Court Chief Justice Rex Davis, now a partner in Waco’s Sheehy, Lovelace & Mayfield.  Davis, a Republican, says he is “seriously considering” making a run for the seat but will not make a final decision until next month. Vance, the lone Democrat on the 10th Court, first won election to that court in 1990.  In the past several years, the 10th Court has been rife with tension.  Chief Justice Tom Gray has criticized Vance and Justice Felipe Reyna in dissenting opinions.  When asked whether the animosity at the court had anything to do with his decision not to seek re-election, Vance says, “nothing whatsoever.” With Vance out of the race, it will be interesting to see who among the possible candidates actually files to run for the seat.  Stay tuned.
-- Mary Alice Robbins

No TX PJ over Brit ship doc in cruise case

British doctor Chris Uche allegedly never met or treated passenger Dorothy Mueller during his time as ship doctor aboard the Celebration, a Carnival Cruise Lines ship, according to an opinion by the 1st Court of Appeals. The decision also noted that Uche stated in an affidavit that  "it was never made known to him, nor was he in any way aware, that Dorothy needed medical assistance." Nonetheless, Mueller's daughter Melody Allison and Mueller's estate sued Uche for failing to take action to reinsert Mueller's feeding tube, which became dislodged during a cruise taken by Mueller on February 2002, according to the opinion in Chris Uche, M.D. v. Melody and Marvin Allison individually and as next friends for Dorothy Mueller, et al. This alleged omission, the family claimed, resulted in Mueller having a stroke on March 16, 2002, which significantly impaired her quality of life, wrote the court.   However, Allison and Mueller's estate cannot sue Uche in Texas, even though the cruise departed from Galveston, the 1st Court held. "Dr. Uche's travel within the state," the court stated, "and his temporary residence on board the Celebration for the purpose of rendering medical services are not sufficiently related to the acts of medical negligence alleged to have taken place in international waters to satisfy the requirements of federal due process in subjecting him to personal jurisdiction in this state."
-- Jonathan Fox

Blockbuster career move

In March 2006, the company then known as TXU Corp., now renamed as Energy Future Holdings Corp., announced that Eric H. Peterson was leaving the general counsel post to "pursue other opportunities."  A 2007 TXU proxy statement reported that Peterson received$1.1 million in severance and  a one-year consulting contract, paying about $25,000 a month. Yesterday, Dallas-based Blockbuster Inc. announced that Peterson is that company's new general counsel, secretary, and executive vice president. Randy Hargrove, a spokesman for Blockbuster, says the company's chief executive officer, Jim Keyes, who came on board in July 2007, selected Peterson to fill the vacancy created when Edward Stead, then general counsel, departed in February 2006 . Hargrove says that Keyes is "developing his leadership team" and that the company is generally focused on cost-cutting and "flattening the corporate structure" but that Keyes saw the general counsel slot as a necessary position to fill. At the same time, the Blockbuster CEO has eliminated the chief operating officer position, Hargrove says. 
-- Miriam Rozen

Lanier opens outpost in L.A.

Houston-based Lanier Law Firm, which opened an East Coast office in New York City in 2005, has now moved to the West Coast, too, with a new office in Los Angeles. The Los Angeles outpost of the litigation firm opened on Oct. 1; the firm announced the new office today. The Los Angeles office is staffed by counsel Shepard Hoffman and associate Julie Drenner. Drenner moved to L.A. from the firm’s Houston office. Shepard will also maintain his practice at the Law Offices of Shepard Hoffman, which has offices in Dallas and Baltimore. In Los Angeles, the Lanier Law Firm will handle a variety of litigation, including asbestos exposure, commercial litigation and intellectual property, pharmaceutical liability, maritime and product liability suits. Firm founder W. Mark Lanier says the firm is doing so much work in California that he and three other lawyers from the Houston office will take the California bar exam in February 2008.
-- Brenda Sapino Jeffreys

It’s litter-ly a patent infringement fight

Here’s a tale of two out-of-state kitty litter makers that are engaged in a court cat fight in Texas. Florida-based Applica Consumer Products Inc. filed a patent infringement suit against OurPet’s Co. of Ohio on Oct. 12 in the U.S. District Court in Marshall.  In its complaint in Applica Consumer Products Inc. v. OurPets Co., Applica alleges that it holds two patents for a “Self-Cleaning Litter Box” and an “Automated Self-Cleaning Litter Box for Cats.”  Applica alleges that OurPet’s has infringed at least one claim of each of those patents with its SmartScoop cat litter box products and should pay Applica damages.  Responding to Texas Lawyer’s telephone calls for comment, OurPets founder and chief executive officer Steve Tsengas says in a voice mail message that his company has just heard about the suit.  “It’s kind of disappointing that Applica chose this route to follow,” Tsengas says, adding that OurPets would release more information after the company’s lawyers review Applica’s complaint.  This may be a case that my cat will want to follow.
-- Mary Alice Robbins

Sleeping giant sues

Mattress Giant Corp. of Addison is suing for a declaration that it owns the rights to its "Catch Some Z's" ad campaign. According to Mattress Giant Corp. v. Motor Advertising & Design Inc., et al., filed Oct. 12 in the U.S. District Court for the Northern District of Texas, Motor Advertising & Design Inc. of St. Paul, Minn., from 2003 to 2006 created a series of ads for Mattress Giant featuring actors wearing costumes shaped like the letter Z and trying to evade capture. According to the suit, Mattress Giant then copyrighted the "Catch Some Z's" ad campaign and now claims it is the sole owner of copyrights deriving from the ad campaign. Alternatively, Mattress Giant claims that Motor gave it a royalty-free license to use the "Z's" concept. In 2007, Mattress Giant claims it advised Motor Advertising & Design that it was looking for a new ad agency. According to the suit, Motor allegedly informed Mattress Giant that it owned the "Z's" and that Mattress Giant would have to buy a license from it to continue using the concept. "Being required to immediately cease its CATCH SOME Z's campaign will cause Mattress Giant money damages and will harm its goodwill," the suit states.
-- Jonathan Fox

New public defender for capital cases

A Lubbock lawyer has been named to head the West Texas Regional Public Defender Office. Jack E. Stoffregen will lead the office devoted to handling West Texas capital murder cases for indigent defendants --- the first of its kind in the state. The state approved more than $2.5 million to fund the office, which hopefully will save West Texas counties the cost of hiring private counsel to defend capital murder cases, which can cost a county up to $500,000 a year. Several counties, including Kaufman, Bexar and Travis counties have launched public defenders' offices over the past two years to defend indigent defendants in a variety of different types of cases. Val Verde County has a regional public defender who also provides services for indigent defendants in Edwards, Terrell and Kinney counties. The West Texas Regional Public Defender Office should be a great service to sparsely populated counties in the Panhandle that have few criminal-defense attorneys with capital murder trial experience.
-- John Council

Fulbright releases results of litigation survey

New litigation filed against U.S. businesses dropped off a bit in the 12-month period that ended in May 2007, according to Fulbright & Jaworski’s 4th annual Litigation Trends Survey, which the Houston-based firm made public on Oct. 15. The survey is based on interviews during May and June with in-house lawyers at 305 companies worldwide, including 253 in the United States. 21 percent of those U.S. companies are based in Texas. In-house lawyers at 17 percent of the U.S. companies say no new suits were filed against their company during the 12-month survey period; 11 percent of U.S. in-house lawyers gave the same answer in the previous version of the survey.  Domestic companies are filing fewer suits as well – 65 percent of the in-house lawyers say their company filed at least one suit during the previous year, compared to 70 percent in the previous version of the survey. That downward trend in the volume of litigation may continue, with only 22 percent of the in-house lawyers who participated in the survey expecting to see their company’s volume of litigation increase during the coming year. Last year, 33 percent of the in-house lawyers expected to see their company face a bigger docket of litigation over the next year. As in past surveys, in-house lawyers are most concerned about labor and employment litigation, followed by contract disputes and regulatory actions. The U.S. companies usually use outside counsel for litigation matters, with 26 percent of the companies always hiring outside counsel for litigation matters. More than half of the U.S. companies have at least one class action pending against them, but the number of securities class actions suits pending against the U.S. companies declined, with 55 percent of the U.S. survey respondents agreeing with the statement that it's because “Sarbanes-Oxley has made companies more careful.” One survey question may give outside lawyers an idea of what their in-house counterparts think about their work. The U.S. in-housers were asked to identify the “single most impressive deed performed on their company’s behalf.” The answers: 32 percent say their outside counsel won a case, 15 percent say they settled a case and 13 percent say they got a case dismissed. Another 13 percent say they got good service, 12 percent say their outside lawyers handled a business transaction, 4 percent say they got good advice and 11 percent had other unspecified reasons.
-- Brenda Sapino Jeffreys

Not bad for inside work with no heavy lifting

In an article published in the Oct. 29 issue of The Nation, currently posted on the magazine's Web site, entitled "Rudy's Dirty Money,"  the author Ari Berman reports the details of presidential candidate and Bracewell & Giuliani partner Rudy Giuliani's financial relationship with his Houston firm. "Rudy didn't come cheap," Berman reports: "Bracewell paid Giuliani Partners $10 million for his services and Giuliani a base salary of $1 million a year, plus 7.5 percent of the firm's New York revenues." Asked about the accuracy of that account, Pat Oxford, the firm's managing partner, says, "That was the original deal, but it is changing now." Oxford didn't elaborate on what will happen to the former New York mayor's financial remuneration, as Giuliani spends more of his time seeking the Oval Office. But presumably he'll campaign more, work less and get paid less.
-- Miriam Rozen

And another one bites the dust

It’s got to be a sign of the times — demographically speaking in Dallas County anyway — when solid Republican district judges decide not to seek re-election because they: 1. are running for a politically safer seat (Robert W. Francis of Criminal District Court No. 3 and Mary Murphy of the 14th District Court are running for a place on the 5th Court of Appeals); 2. are running as a Democrat (former Republican John Creuzot recently announced his re-election bid to Criminal District Court No. 4 as a Democrat); or 3. are running in another direction entirely. The latter is what Judge Karen Gren Johnson is doing; she publicly made her thoughts known on Oct. 12 when she announced that she would not be seeking a third term as the judge of the 95th District Court. “I intend to serve the community in some other capacity,” says Johnson in an interview. Johnson may have been facing stiff competition in the ’08 general election from Dallas attorney Ken Molberg, a former Dallas County Democratic Party chairman. But Johnson maintains her decision was not politically motivated. “I never had to reach the decision of ‘Can I win or can I lose?’ ” she says. “If anyone is honest about the next election, they will admit that no one can predict what is going to happen until the top of the ticket shakes out. People can speculate all they want about the politics of my decision, but the truth is, I wanted to do other things.” So what made her announce now?  “I had no pressure to say anything,” she says, "but then Ken Molberg was stepping up his campaign fundraising . . . which placed some people in awkward positions. Some were activist Democrats who had ties to him and were friends of mine. They wanted to know what I was doing before they lent their names and money to someone else.” And what exactly will Johnson be doing? She won’t specify other than to say she wants to remain in public service. “The beauty of it all is that I have a year to decide life’s next adventure for me.”
-- Mark Donald

1-800-Flowers suit wilts

Leroy Greer will not get his day in court, at least in Texas, to press his case against 1-800-Flowers.com for allegedly revealing to his estranged wife the existence of his girlfriend. The dispute began when Greer ordered flowers for his girlfriend through the telephone florist, which mailed him a "Thank You" card to his home address. Greer's wife then contacted 1-800-Flowers.com and received a proof of purchase, along with information that identified Greer's girlfriend. In Greer v. 1-800-FLOWERS.COM Inc., et al., Greer on Aug. 6 sued 1-800-Flowers.com, alleging that the company breached its privacy policy, violated the Texas Deceptive Trade Practices Act and intensified a divorce and child-custody battle already underway. On Oct. 3, however, Judge Nancy F. Atlas of the U.S. District Court for the Southern District of Texas threw out Greer's Texas suit on grounds that the contract included a forum-selection clause requiring the case to be filed in New York. "There is nothing in the record," Atlas wrote, "to support Plaintiff's argument that the forum selection clause does not apply to telephone transactions where the purchaser accesses the website's Privacy Policy or other Terms of Use."
-- Jonathan Fox

Fee-fight arguments set

Medical Center Dallas Ltd. faces the possibility that it will have to pay more in attorneys’ fees than it recovered in a suit against a roofing company over a leaky roof.  On Wednesday, the Texas Supreme Court will hear arguments in Medical Center Dallas Ltd. v. Carlisle Corp. At issue in the case is whether Medical Center can recover more than $121,000 in attorneys’ fees stemming from a breach of warranty suit it filed against Carlisle Corp. in 2001.  A 192nd District Court jury awarded Medical Center almost $110,500 in damages plus attorneys’ fees.   Carlisle appealed to the 5th Court of Appeals in Dallas, which affirmed the damages award but reversed the trial court’s award of $121,277 in attorneys’ fees to Medical Center in 2006.  The 5th Court held that Medical Center is not entitled to attorneys’ fees under Texas Civil Practice & Remedies Code §38.001(8), which allows a party to recover attorney’s fees if a claim against a corporation involves a written or oral contract.  Because the jury’s verdict was based on a breach of warranty, the 5th Court concluded that Medical Center is not eligible to recover attorneys’ fees.  Medical Center petitioned for review by the Supreme Court, which will decide whether the health-care provider or the roofer will be the one paying the attorneys’ fees.  This is a case that’s likely to attract some attention, both from attorneys and potential litigants.
-- Mary Alice Robbins

NOW wants House Judiciary Committee to investigate Kent

The National Organization for Women today called on the House Judiciary Committee to open an investigation into the allegations against U.S. District Judge Sam Kent of Galveston. On Sept. 28, an order by the Judicial Council of the 5th U.S. Circuit Court of Appeals disciplined Kent over a May 21 complaint of “sexual harassment” toward an employee of the federal judicial system. In August, Hayden Head, chief judge of the Southern District of Texas, signed an order noting that Kent would be absent from the bench from Sept. 1, 2007, until Jan. 1, 2008. The judicial council’s order noted that “appropriate remedial action had been and will be taken, including but not limited to the judge’s four-month leave of absence.” The order provided few details about the nature of the allegations against Kent. Under Chapter 16 of 28 U.S.C. §360(b), all documents and records of proceedings related to the investigation of Kent’s alleged misconduct are confidential except when the council, it its discretion, releases a copy of the special committee’s report to the complainant and the judge whose conduct is the subject of the complaint. “There is an Alice in Wonderland feel to this process. The 5th Circuit’s investigation of its own judge was completely secret, none of the findings were revealed to the public, not even after the investigation was complete, the public ‘reprimand’ contained no details, and all documents uncovered in the investigation are sealed,” says NOW President Kim Gandy, an attorney admitted to practice in the 5th Circuit. “To make matters worse, the 5th Circuit says that even if a judicial panel finds that a judge did commit a crime, it is not obligated to refer it to law enforcement. Federal judges are protected by law from the law.” Kent did not return a call for comment. And the 5th Circuit’s hands are tied because of the federal statute, says Joseph St. Amant, senior appellate conference attorney for the 5th Circuit. “That statute’s got a confidential provision in it. What that means is I’m not able to talk to you about a particular complaint,” St. Amant says. “I have to abide by the statute. And the judicial council has to abide by the statute as well.”

-- John Council

Criticism of judge growing

Another complaint is in the works against Court of Criminal Appeals Presiding Judge Sharon Keller, who decided not to hold open the CCA clerk’s office past the 5 p.m. closing time on Sept. 25 to allow Michael Richard’s lawyers to file a motion for a stay of execution.  The state executed Richard that night for the 1986 rape and murder of a Hockley woman. Houston solo Patrick McCann, president of the Harris County Criminal Lawyers Association, says the HCCLA board of directors voted Thursday to file a complaint against Keller with the State Commission on Judicial Conduct.  McCann declines to give the vote tally. But he says, “There was a very strong opinion that the board should speak out.”  The board is giving individual members of the association an opportunity to sign on to the complaint, which will be filed next week, McCann says.  On Thursday, the Texas Civil Rights Project filed a complaint against Keller with the judicial conduct commission on behalf of 20 Texas lawyers.  Keller declines comment on the HCCLA board’s decision to file a separate complaint against her.  CCA Judge Tom Price, the court’s spokesman for the matter, says the court has no comment. Richard’s lawyers were seeking a stay of execution on Sept. 25, based on the U.S. Supreme Court’s decision earlier that day to consider whether execution by lethal injection constitutes cruel and unusual punishment.  McCann says the HCCLA has an interest in what happened in Richard’s case, because inmates from Harris County file the most appeals and applications for habeas corpus writs with the CCA for review.   
-- Mary Alice Robbins

A tale of two insurance companies

Two years after hearing arguments, the Texas Supreme Court has settled a fight between two insurance companies.  The controversy in Mid-Continent Insurance Co. v. Liberty Mutual Insurance Co. was whether one primary insurer has a duty to pay a proportionate share of a settlement against its insured, a contractor, who also was insured by another primary insurer who had agreed to the settlement.  The Supreme Court held that Liberty Mutual has no right to reimbursement from Mid-Continent, even though Mid-Continent paid only $150,000 of a $1.5 million settlement.  As noted in the opinion, written by Justice Dale Wainwright, Mid-Continent had calculated the insured’s liability at $300,000 and paid half of that amount.  Wainwright wrote for the court that there is no direct duty of reimbursement between these co-primary insurers and the contractor has no rights against Mid-Continent to which Liberty Mutual may be subrogated. The ruling, which is in response to certified questions that the 5th U.S. Circuit Court of Appeals sent the Supreme Court in March 2005, overrules the 4th Court of Appeals’ holding in 2000’s General Agents Insurance Co. of America v. Home Insurance of Illinois that one primary insurer can hold another primary insurer liable for  failing to be reasonable with regard to settling claims against an insured they both cover. Critics complain that the state Supreme Court too often sides with insurance companies.  No matter how the court ruled in Mid-Continent, an insurance company was going to be the loser. 
-- Mary Alice Robbins

Medina's side of the story

Harris County District Attorney Chuck Rosenthal says that Texas Supreme Court Justice David Medina is not a suspect in an arson case involving Medina’s house in Spring that burned down this summer. No one was injured in the blaze but the house was a complete loss. “I called Judge Medina telling him to anticipate a grand jury subpoena and I told him that he was not a suspect,” Rosenthal says. “In Harris County, we warn people if they’re suspects.” Rosenthal says Medina agreed to appear before the grand jury. Medina says he’s pleased with Rosenthal’s announcement. “I never thought I should be considered a suspect. I never understood that and it’s certainly a relief to get that. But it’s still difficult to go through this entire ordeal. Medina says his house was not covered by insurance when it burned. “It was just a miscommunication with the way the policy was set up,” Medina says. He also says there was trouble with his mortgage payments on the house when he switched financial institutions. “I would make those payments,” Medina says. “And for some reason they didn’t get there. When I found out, I took care of it immediately.’’ Medina and his family have moved to the Austin area to a two-bedroom rental house and they are trying to adjust. “It’s cozy,’’ Medina says of his new place. “It's tough leaving friends and family for a new environment.’’
--- John Council

Treadmill troubles

Bally Total Fitness Corp. allegedly has a malfunctioning treadmill that sped up to maximum speed on its own, according to a suit by a patron who claims that she was seriously injured when the machine did so precipitously with her on it. In Maria Gonzalez v. Bally Total Fitness Corp., filed Aug. 30 in Dallas County Court-at-Law No. 4 and removed to federal district court in the Northern District on Oct. 9, Maria Gonzalez alleges that when the machine accelerated, she fell and hit her head and back on the machine and had to go to the hospital for treatment of injuries that included a broken right arm and elbow requiring a cast, as well as chiropractic care. She claims that Bally was negligent in allowing the treadmill to become "slippery and wet" and deteriorate due to lack of maintenance. In an answer to Gonzalez's suit dated Oct. 3, Bally denied it was negligent and claimed that Gonzalez cannot sue because she signed a waiver of liability when she joined the gym.
-- Jonathan Fox

Judge receives envelope with white powder inside

U.S. District Judge A. Joe Fish certainly is concluding his days as chief of the Northern District with plenty of excitement. Not only is he presiding over United States v. Holy Land Foundation for Relief and Development, et al. -- a prosecution involving a Richardson-based charity the government alleges sent money to the terrorist organization Hamas -- but yesterday fire officials and investigators responded to the federal courthouse when one of Fish's assistants opened an envelope addressed to the judge that contained a mysterious white powdery substance. The letter was from a state inmate with no relationship to the HLF case. The powder was not any kind of threat, one of the judge's assistants says. And the HLF jurors kept on deliberating -- it's been 14 days now -- unaware of the incident.
-- Miriam Rozen

Painting dedication in Shelby’s honor

On Thursday, friends, family members and law partners of the late Mike Shelby will gather in the downtown Houston law office of Fulbright & Jaworski to dedicate a painting of the U.S. Supreme Court building in Shelby's honor. Shelby was a career prosecutor who joined the U.S. Attorney’s Office in Houston in 1989 where he specialized in the investigation and prosecution of cases involving public corruption, organized crime and environmental law. President George W. Bush appointed Shelby as the U.S. attorney for the Southern District of Texas in 2001. Shelby left the office in 2005 and joined Fulbright as a partner so he could earn more money for his family. Shelby died on July 18, 2006.

--- John Council

Gwinn & Roby shuts down

In business since 1986, the Dallas defense firm of Gwinn & Roby closed its doors last week. "Business got very bad,” says Robert A. Gwinn, one of the firm’s founding partners. Gwinn says the five attorneys with the firm when it closed moved out over the weekend. Robert R. “Rob” Roby, Gwinn & Roby’s former managing partner who is now a partner in Curran Tomko Tarski in Dallas, did not immediately return telephone calls seeking comment. The firm once had offices in Amarillo, Dallas and Fort Worth. Plaintiffs attorney Paula Sweeney, a partner in Dallas’ Howie & Sweeney, believes H.B. 4, the sweeping tort reform measure the Texas Legislature passed in 2003, may have caused the demise of Gwinn & Roby, which was primarily an insurance defense firm. Sweeney says Roby, who was president of the Texas Association of Defense Counsel in 2002-2003, did not speak out against H.B. 4. “Everybody warned the defense bar that if you don’t stand up in this fight, you’re going to be out of business,” Sweeney says. 
-- Mary Alice Robbins

Weil, Gotshal gets some respect

The Houston office of Weil, Gotshal & Manges and the entire New York-based firm were each honored this morning for their commitment to diversity. Weil, Gotshal is the first firm – and the first organization of any kind -- to be named a Community of Respect on both the national and local levels through the Anti-Defamation League’s Community of Respect program. At ceremonies this morning, firm leaders in Houston and at the firm’s headquarters in New York City received plaques recognizing the Community of Respect designations. Diversity has been on the radar screen at Weil, Gotshal since 1984, when the firm developed a firmwide diversity program and adopted a formal diversity program. According to information provided by the firm, the firm requires diversity training for all of its employees, created a firmwide diversity committee, hosts a bi-annual multicultural week held simultaneously in all offices, and established groups for women, black, Asian, Hispanic and gay/lesbian lawyers. The Houston office separately earned the Community of Respect moniker for creating a committee to plan diversity-related events. In a prepared statement, Sylvia Mayer, a partner in Weil, Gotshal’s Houston office, says, “Weil, Gotshal’s Community of Respect designation reaffirms our long-standing dedication to fighting prejudice and encouraging inclusion and diversity.”

-- Brenda Sapino Jeffreys

Anna Nicole's mom files defamation suit

OK. Admit it. You enjoy reading about Anna Nicole Smith, even in the months since her unexpected