Texas Lawyer Blog

Verdict of the Day: big bucks in Bexar County

Here’s Mark Lanier’s latest courthouse victory: a $56.4 million verdict in Bexar County against Caterpillar Inc. of Peoria, Ill., and Holt Texas Ltd. of San Antonio. Lanier, of Lanier Law Firm of Houston, represented a construction worker who alleged that design, manufacturing and marketing defects and negligence led to injuries that paralyzed him while using a Caterpillar scraper. The verdict includes $40 million in punitive damages against Caterpillar. Read the jury charge and the jury’s answers here. Got a judgment or a verdict? E-mail a file-stamped copy to amcmillan@alm.com.
-- Brenda Sapino Jeffreys

Winstead rescinds offer just four days before start date

Dallas-based Winstead has rescinded offers to two incoming first-year associates, including one who was due to start work on Feb. 1. According to the firm, four first-years started work in September 2009 and another five are set to start work on Feb. 1, but the firm rescinded one offer in September and another on Jan. 28. “They just said there wasn’t any work for me,” says the lawyer who received the call from the firm on Jan. 28. The lawyer, who does not want to be identified, says she did pass the Texas bar exam. In a statement, the 262-lawyer firm says the offer was rescinded “as a result of the unfortunate reality of the changing economy.” Winstead declines to discuss which section the two lawyers whose offers were rescinded were supposed to work in or the Jan. 28 timing of the rescinded offer, which was just four days before the start date. The Above the Law blog first reported that Winstead had rescinded offers.

-- Brenda Sapino Jeffreys

Andrews Kurth offers fixed-fee startup package

On Jan. 28 Andrews Kurth announced a $5,000 fixed-fee startup package. It's for entrepreneurs who want to organize a new company so they can seek venture capital funding. “It’s about creating cost certainty,” says Alan Bickerstaff, an Andrews Kurth partner in Austin who is in the 402-lawyer firm’s technology and emerging companies group. “Our target market is young entrepreneurs who want to start a new company, typically technology related,” he says. For the set fee, Andrews Kurth clients will get “the documents they need to hit the ground running and go out and protect themselves,” he says. The clients also will receive an hour of legal consulting in each of four areas: venture capital term sheets, employment matters, employee benefits and intellectual property. Bickerstaff says the firm advises hundreds of clients each year on starting up companies, and the fixed-fee package should be attractive to cash-constrained clients. “It’s probably a good, fair rate for a large firm for creating a company that intends to be a venture-backed company. . . . It’s a pretty comprehensive set of documents and services,” he says. He says he has not heard of other firms with a similar fixed-fee package.

-- Brenda Sapino Jeffreys

Texas lawyer helped monitor Massachusetts election

When Republican Scott Brown won the late Democrat Ted Kennedy’s seat in the U.S. Senate on Jan. 19, Boerne solo Sharon Blakeney was in Massachusetts, where she worked on the Brown campaign’s legal team that monitored polling places. Blakeney says Brown’s campaign retained her to serve on one of the roving teams of lawyers who monitored, documented and challenged violations of election procedures and voting irregularities at nine polling locations in Boston. Brown ran against Democrat Martha Coakley, the Massachusetts attorney general. Just having the lawyers monitoring discouraged voter fraud, says Blakeney, who has worked in a number of elections in the past. Blakeney says she was involved in the 2000 Florida presidential election litigation representing absentee voters in Ronald Taylor, etc., et al. v. Martin County Canvassing Board, etc., et al. and Harry N. Jacobs, etc., et al. v. Seminole County Canvassing Board, etc., et al.at the Florida Supreme Court. Blakeney says that in 2004, she worked in Philadelphia as an attorney for the Republican National Committee, monitoring and documenting voter fraud and other voter irregularities in the presidential election. In the 2008 presidential election, she again worked for the RNC, monitoring voting in St. Louis, Mo., Blakeney says. In Massachusetts, Blakeney had an opportunity to talk to Brown, who she had not known before the election. Following a news conference the day after the election, Blakeney joined Brown in walking his dogs (pictured). “He really is just a regular guy,” Blakeney says.
-- Mary Alice Robbins

Newspaper notes allegation about Fred Baron in upcoming book by former aide to John Edwards

Allegations related to the late Texas plaintiffs lawyer Fred Baron (pictured) are surfacing on the Web. They come from the soon-to-be released book by Andrew Young, a former aide to John Edwards, an erstwhile Democratic presidential contender and former U.S. senator from North Carolina. An account of the book's content is on the Web site of the North Carolina-based News & Observer. The article recounts the book’s allegation that when Edwards was about to launch his second White House campaign, he asked Young to claim paternity of the child Edwards has subsequently acknowledged fathering with Rielle Hunter, with whom Edwards admitted having an affair. According to the article, Young alleges Edwards also told Young that Baron "would pay." Baron had been chairman of the finance committee for Edwards' campaign. Abbe Lowell, a partner in the Washington, D.C., office of McDermott Will & Emery, has been a friend of Baron's and of his widow and firm partner Lisa Blue-Baron. He also has represented Baron in the past. In response to an e-mail asking about the allegations, he sent this response: "Fred, on his own and without discussing it with anyone else, provided financial help to Andrew Young and Rielle Hunter when they were being besieged by the media to try to help them protect their and their families' privacy. In addition, Mr. Young and Ms. Hunter both asked him for additional help. Over the course of his life, he had done the same for countless other people. It would be awful if anyone who was a willing beneficiary of Fred's generosity and friendship was now so ungrateful that he or she tried to mischaracterize what happened, blame Fred for their decisions, and especially try to put words in Fred's mouth now that he has passed on and cannot speak for himself."

-- Miriam Rozen

Haynes and Boone partner donating kidney to staffer's son today

Haynes and Boone partner Matthew Deffebach(pictured) of Houston spent much of January preparing his labor and employment practice for a month-long hiatus while he recovers from elective surgery scheduled for today. Deffebach isn’t in ill health. Instead, the 39-year-old father of three is donating a kidney to the son of a longtime Haynes and Boone staffer. After learning in November 2009 that the Dallas man who is in dire need of a kidney transplant is married and the father of a 6-year-old boy, Deffebach decided he would do some medical testing to see if he might be a good kidney donor. As it turned out, Deffebach’s kidney was a good match, and he’s healthy, so the lawyer agreed to donate his kidney. Deffebach says he's going through the surgery because he couldn’t stand the thought of the man’s son growing up without a father. “I met him the day after I found out how bad his situation was,” Deffebach recalls. Deffebach and his wife have three young daughters. Jonathan Wilson, a labor and employment partner in Haynes and Boone in Dallas who works with Deffebach, says a number of lawyers at the firm agreed to be tested to see if they would be good kidney donors. He notes that Deffebach is a “very humble, gracious type of fellow” as well as a great lawyer, and his decision to provide a kidney for someone he didn’t know until recently is “astounding and honorable.” According to Deffebach, the man suffers from Berger’s disease, which can cause renal failure. 
-- Brenda Sapino Jeffreys

UPDATE: Doug Bedell, manager of marketing communication for Haynes and Boone, says Wilson reports that the surgeries went smoothly and the kidney started functioning immediately after the transplant. Bedell says Wilson told the firm that everyone is overjoyed.

Forensic Science Commission to meet in Harlingen

Williamson County District Attorney John Bradley, chairman of the Texas Forensic Science Commission, has scheduled a commission meeting for 9:30 a.m. Friday Jan. 29.  But the commissioners won’t be meeting in Austin, Dallas, Houston or San Antonio – places where the commission previously has met, according to its Web site. As noted on its Web site, the commission’s Friday meeting will be held in the Rio Grande Valley at the Courtyard by Marriott in Harlingen. Bradley did not immediately return a telephone call seeking comment on the choice of meeting site. Gov. Rick Perry made headlines last year when he removed two commission members in late September – two days before the commission was scheduled to hear the findings of an arson expert who evaluated the methods and procedures used by fire investigators in the arson case against Cameron Todd Willingham. Appointed by Perry to chair the commission, Bradley’s first move was to cancel the commission’s Oct. 2, 2009, meeting with Craig Beyler, a fire protection engineer and arson expert. Beyler had concluded in a report that the commission released in August 2009 that the evidence did not sustain the finding of arson that led to Willingham’s capital murder conviction in 1992 and execution in 2004 for the deaths of his three young daughters. Perry had declined to grant Willingham a 30-day stay before his execution was carried out. Beyler is not on the Friday agenda. But the agenda does include a discussion and possible action on the creation of a general counsel position for the commission.

UPDATE: John Bradley, the Texas Forensic Science Commission’s chairman, says in an e-mail that the commission is meeting in Harlingen on Friday to afford diversity in meeting locations and to honor one of the newest commissioners, Dr. Norma Farley, chief forensic pathologist in Cameron and Hidalgo counties, who lives in the Rio Grande Valley. According to Bradley’s e-mail, another reason the meeting is scheduled in Harlingen is to allow state Sen. Juan Hinojosa, D-McAllen, to open the hearing.
-- Mary Alice Robbins

Kaufman County District Attorney Richard “Rick” Harrison's DWI hearing postponed

A hearing scheduled today involving Kaufman County District Attorney Richard “Rick” Harrison as a defendant has been postponed until March 12. The Dallas County Criminal Court No. 6 hearing was set in a case the Dallas County District Attorney's Office filed June 22, 2009, charging Harrison with driving while intoxicated with a previous conviction, a misdemeanor offense. According to an e-mail from Jamille Bradfield, a spokeswoman for the Dallas DA, in response to a question about the delay, "Multiple settings on misdemeanors are extremely common. Nothing unusual about that." One of Harrison’s defense lawyers, Dallas solo Brady Wyatt, declines comment about the case. His other defense lawyer, Dallas solo Keith Dean, did not immediately return a call seeking comment. Dean has told Tex Parte in the past that Harrison expects to receive no special treatment. A police officer’s affidavit attached to Harrison’s arrest warrant states that on June 18, 2009, Harrison was involved in a two-vehicle accident in Seagoville. At the Dallas County jail, according to the affidavit, Harrison declined to submit to an Intoxilyzer examination to determine the level of alcohol in his system. He was transported to the Seagoville jail and later released on bond. More than a decade earlier, on Nov. 10, 1995, in Dallas County Criminal Court No. 2, Harrison entered a guilty plea to the charge of driving while intoxicated, according to the affidavit. On March 11, Bradfield writes, Harrison is scheduled to appear at an administrative license revocation hearing conducted at a facility of the State Office of Administrative Hearings by an administrative law judge employed by the Department of Public Safety.

-- Miriam Rozen

Want booze shipped to your house? Not gonna happen, 5th Circuit says.

Over the years, I’ve had lots of stuff shipped to my house: auto parts, obscure Britpop CDs, a stuffed giraffe (OK, I’m making that last one up.) But I’ve never had the pleasure of getting a jaunty California cabernet in the mail direct from the vintner because the Texas Alcoholic Beverage Code says I can’t. And a recent decision by the 5th U.S. Circuit Court of Appeals affirms Texas’ three-tier system of alcohol distribution, which goes something like this: An alcohol producer must sell to a distributor, a distributor must sell to a retailer, and a retailer then sells to me. Writing for the three-member panel in a painstaking Jan. 26 opinion that reached as far back as 1933’s 21st Amendment, 5th Circuit Judge Leslie Southwick wrote that Texas’ restrictive booze laws do not run afoul of the dormant Commerce Clause in Siesta Village Market, et al. v. Perry, et al. Dang it. I will now go home and drown my sorrows in some store-bought, retail-priced liquor.

-- John Council

Pro bono lawyers win cert on behalf of federal inmate

Carlos Rashad Gould may be the luckiest inmate in federal prison in the state of Texas. It’s safe to say that very few indigent prisoners have a team of expensive big firm civil lawyers working pro bono on their appeals, as Gould does. Fewer still get an audience before the U.S. Supreme Court. On Jan. 25 the high court granted his petition for writ of certiorari in Gould v. United States. Gould’s appeal from a 5th U.S. Circuit Court of Appeals decision involves the most common kind of case decided by that court: an appeal from a trial court’s sentencing decision. “To have it go up on a valid cert petition and one that gets granted, Mr. Gould’s case has had a pretty unusual life in the appellate courts,” says David Horan (pictured), a partner in the Dallas office of Jones Day, who the 5th Circuit appointed to represent Gould in 2007. Horan brought in three other Jones Day lawyers to help on Gould's case, including partner David J. Schenck and associates Paul Theiss and Andrew Wirmani. After a whole lot of hard work by the Jones Day lawyers, the magic starting happening in Gould's case, which has been consolidated with another case from the 3rd U.S. Circuit Court of Appeals. The issue the high court will look at in those cases is the so-called "exception clause" in a federal firearms statute that requires a minimum five-year sentence when a defendant carries a gun while committing a drug crime, except if the defendant is convicted of another crime that has a longer minimum sentence. The Jones Day lawyers argue that the trial court judge got the exception clause wrong when he sentenced Gould. And if the U.S. Supreme Court agrees with Gould, a whole lot of similarly situated prisoners stand to get a lot of time shaved off their sentences.

-- John Council