Texas Lawyer Blog

UPDATED: Judge Carlos Cortez and state Sen. Royce West in heated dispute at Lisa Blue Baron shindig

State Sen. Royce West, D-Dallas, and 44th District Court Judge Carlos Cortez got in a heated dispute at Lisa Blue Baron’s holiday party on Dec. 11 and had to be separated, according to a witness who saw the altercation. West declines to discuss the particulars. “The reality is that it was a very unfortunate situation. Lisa has been very gracious to invite everyone to a holiday party that everyone was looking forward to attending. And it’s very unfortunate that it happened,” West says. Cortez declines to comment, but Baron says the situation was not serious. “I’ve been doing this party with my husband for 10 years. And as far as the incidents that have happened, this was the least interesting. It was a total nothing burger. And it was . . . just a misunderstanding. And no one was asked to leave my house, and no one was escorted out.” The Dallas Morning News reported Cortez as saying the dispute between himself and West partially was over who was the best musical performer at Baron’s lavish party — Michael McDonald or Sheryl Crow — but West disagrees. “It’s unfortunate that Cortez is [saying] that it was an argument over who was the best performer. That is not the case. There were several people who were standing around who heard everything he said and can talk about what his demeanor was,” West says. One witness, an attorney who requests anonymity, says, “I noticed Judge Cortez shouting at Royce West . . . and the senator appearing puzzled as to why he was being shouted at. The two of them began to approach each other as if they were going to fight until they were separated by those around them. . . . And then Judge Cortez continued to shout at Royce. It was profanities,” the lawyer says. “I don’t know what started the fight, but I can tell you how it ended — with security between them. And around that time, Carlos began shouting at Terri Moore. I don’t know what precipitated that,” the witness says. Moore, Dallas County first assistant district attorney, says she doesn’t “have any comment to make about the foolishness.” Baron notes that she is plaintiffs’ counsel in a suit pending in Cortez’s court that involves a multimillion-dollar business dispute. West is one of the lawyers representing the defendants in that case. “Royce and I have certainly had conversations where we disagree, but we can certainly work together,” Baron says. “The history of this case is delay after delay after delay, and my hope is the defendants won’t try to use this [the party altercation] to try to delay the case again.” West declines to comment about how the altercation may affect the litigation pending in Cortez’s court. “Right now, the only thing I’m doing is preparing for the Legislature,” West says. Tex Parte readers may remember another incident involving Cortez from May 2009. The Dallas Morning News reported that Cortez and 14th District Court Judge Eric Moyé got into an alleged altercation in Cortez’s chambers. According to the article, Moyé said the conflict was over some e-mails Cortez sent Moyé about internal court business, which led to Moyé confronting Cortez. Cortez's lawyer said Moyé assaulted Cortez — in front of a court bailiff — an allegation Moyé denied.

UPDATE: Cortez returned Texas Lawyer's phone call seeking comment and left a message after the above blog was posted, and I called him back. He says everything is fine between himself and West. And he says his statement to The Dallas Morning News that the musical lineup at the party contributed to the dust-up was not serious and was made tongue in cheek. “Royce West’s law firm was just in my court yesterday. I’ve got no issues with him. I consider him a friend and am going to see him Friday at a holiday party,” Cortez says. “I agree with Lisa Blue. No one was escorted out. No one was asked to leave,” Cortez says. “There’s nothing to discuss about this stupidity." 
-- John Council

State, Galveston County officials seek rehearing in battle over the beach

The battle over the beach on West Galveston Island isn’t over quite yet. On Dec. 10, state and Galveston County officials filed a motion for rehearing in Severance v. Patterson, et al. In a 6-2 decision on Nov. 5, the Supreme Court held in Severance that Texas does not recognize a “rolling” easement that can encumber private property on West Galveston Island when a major storm, such as a hurricane, drastically changes the dry beach. The joint motion for rehearing provides the following background on the case: Carol Severance filed suit in U.S. District Court for the Southern District of Texas in Houston after the General Land Office told her to remove a West Galveston Island rental house that the GLO determined was partially on a public beachfront easement and partially blocking public access to the beach after 2005’s Hurricane Rita moved the line of vegetation. The district court dismissed Severance’s suit on the motion of the defendants, Land Commissioner Jerry Patterson, Attorney General Greg Abbott and Galveston County District Attorney Kurt Sistrunk. The district court held that an easement on beachfront property “rolls” onto new pieces of property according to natural changes to the property. Severance appealed to the 5th U.S. Circuit Court of Appeals, which certified unsettled questions regarding the Texas Open Beaches Act to the state Supreme Court. The high court’s decision favored Severance. In their motion for rehearing, Patterson, Abbott and Sistrunk argue, “With the stroke of a pen, a divided Court has effectively eliminated the public’s right on the dry beach.” Patterson, Abbott and Sistrunk contend in the motion that, as a result of the Supreme Court’s decision, the GLO recently had to abandon a $40 million beach-renourishment project. Patterson spokesman Jim Suydam says the project, which was to restore six miles of eroded beach on West Galveston Island, was to have been the biggest beach restoration effort attempted in Texas history. Suydam says that Patterson, after conferring with attorneys, decided to cancel the project because “you cannot spend public money on private property.” Tom Kelley, spokesman for the Office of the Attorney General, which represents Patterson and Abbott, declines comment. Barry Willey, an attorney in the Galveston County Legal Department who represents Sistrunk, also declines comment. David Breemer, Severance’s counsel and the principal attorney for the California-based Pacific Legal Foundation, says he sees “nothing new” in the motion for rehearing. “It’s a rehash of arguments that have been rejected,” Breemer says.
-- Mary Alice Robbins

Jury instructions in plain language included in proposed amendments to Texas Rules of Civil Procedure

Proposed amendments to the Texas Rules of Civil Procedure include a “plain language” revision of the instructions judges must give prospective jurors and jury members selected for a trial. Misc. Docket No. 10-9210, posted today on the Texas Supreme Court’s website, would amend jury instructions required by court order under Rule 226a and would amend Rules 281 and 284. Kennon Peterson, the Supreme Court’s rules attorney, says the court rewrote the instructions prescribed under Rule 226a “in plain language that jurors are more likely to understand and therefore to follow.” Justice Nathan Hecht, the Supreme Court’s liaison for rules, says there’s a lot of “legalese” in the current jury instructions. “We’re just trying to put them in plainer English,” Hecht says. Supreme Court Advisory Committee (SCAC) member Tracy Christopher (pictured), a justice on Houston’s 14th Court of Appeals, says rudimentary testing by the State Bar of Texas Jury Charge Oversight Committee found that jurors do not always understand the instructions they are given. Christopher writes in an e-mail that the State Bar committee began working on revisions in the Rule 226a jury instructions in 2006 and presented its recommended draft to the SCAC in October 2007. Among other things, the proposed revisions seek to clarify that if only 10 members of a jury agree on every answer in a jury charge, only those 10 members can sign the verdict certificate, Christopher says. Under proposed amendments to Rule 284, a judge must instruct jurors, immediately after they are selected to hear a case, to turn off cell phones and other electronic devices and not to communicate with anyone through an electronic device while they are in the courtroom or while they are deliberating. The proposed amendments to Rule 284 also require a judge to instruct jurors, while they are on a jury, not to get on the Internet to talk about or investigate the case. “They really need to know they can’t get on FaceBook, can’t get on Wikipedia,” Hecht says. The proposed revisions of the Rule 226a jury instructions also spell out the prohibitions against talking about or investigating the case online. Christopher says people are accustomed to doing their own research, but doing so while they’re serving on a jury can cause a mistrial. “We’re trying to make it overall a lot clearer to the jury what they can and can’t do,” Christopher says. The revised jury instructions also require a judge to tell jurors that they can take notes. Hecht says, “In any case of any complexity, the lawyers are taking notes, the judge is taking notes, the jurors should be able to take notes if they want to.” Proposed amendments to Rule 281 would allow jurors, with the trial court’s permission, to take their notes to the jury room. Under the proposed revisions in the Rule 226a jury instructions, the judge must tell jurors to give their notes to the bailiff for safekeeping when they leave the jury room. At the end of the trial, the bailiff will destroy the notes, according to the proposal. That’s to prevent post-trial motions to subpoena jurors’ notes, Christopher says. The Supreme Court ordered a public comment period to extend through March 4, 2011. Comments can be submitted to Peterson by mail at P.O. Box 12248, Austin, Texas 78711, or electronically at kennon.peterson@txcourts.gov. The rules, with any modifications based on public comments, will take effect April 1, 2011, according to the court’s order.
-- Mary Alice Robbins

Bonuses bring holiday cheer at Susman Godfrey

Texas firm Susman Godfrey paid associate bonuses this month ranging from $45,000 to more than $100,000. Ten of the firm’s associates received bonuses that came in at about 50 percent of their base salaries, the firm announced on Monday. Bonuses were so healthy this year because the firm’s profits in 2010 were up about 20 percent from 2009, says Stephen Susman, a founder of the firm. “Our bonuses always track how well the year is,” says Susman. The 90-lawyer litigation firm is known for its big bonuses. The firm stunned the Texas legal market in 2000 when it gave its associates bonuses equal to their base salaries -- bonuses ranging from $114,000 to $165,000. In 2004, most Susman Godfrey associates received bonuses that ranged from 100 percent to 115 percent of their base salary. Susman, who offices in Houston and New York City, says the firm’s associates are pleased with their checks. “Everyone’s happy,” he says. The firm has offices in Houston, Dallas, New York City, Los Angeles and Seattle.

-- Brenda Sapino Jeffreys

U.S. District Judge Vanessa Gilmore publishes second book

Over the past few years, U.S. District Judge Vanessa Gilmore of Houston says she’s written a number of short stories about humorous situations in her life. Gilmore collected some of the essays in a new self-published book, “You Can’t Make This Stuff Up: Tales From a Judicial Diva.” The book came out last week. Gilmore says her previous book, “A Boy Named Rocky: A Coloring Book for the Children of Incarcerated Parents,”is on a serious subject, so she decided to write a “light-hearted” book. Gilmore, who was appointed to the bench in 1994, says people often ask her if the humorous stories she tells about her life as a federal judge are true, and her answer is that she can’t possibly make it up. Among various situations, Gilmore says she writes about the many, many letters she’s received from would-be suitors who contact her from prison. That includes the inmate who asked Gilmore, who is a single parent with a son, to fill out a questionnaire so he could determine if she’s worthy to date. One man even mailed her handmade cards for special occasions and sent them to her church, Gilmore says, which raised some eyebrows among the ladies there. Gilmore says she wrote other essays about “just crazy stuff.” For instance, Gilmore says she noticed that a large number of the defendants in capital cases in her court had Wayne or Lee for their middle names. After doing some informal research, Gilmore says she determined that an “oddly high number” of defendants in Texas death penalty cases have those middle names. After doing more online research, she’s determined that others have noticed the same strange propensity for people with Wayne or Lee for a middle name to have trouble with the law. Gilmore says she’s always tried to find the humorous side, even in situations where people are rude. For instance, Gilmore says, she writes about the man who approached her at an event and suggested she quit telling people she is a federal judge because it’s just too unbelievable. Even the “judicial diva” reference in the title came from a posting on the Above the Law blog, which called her a “Delicious Judicial Diva” in this 2007 entry.  Gilmore says she has to be able to laugh at things that happen in her life. She notes, “I’m a glass half-full person. I try to look at the light side of things.”

-- Brenda Sapino Jeffreys

New Texas solicitor general has met requirements for state law license

Jonathan F. Mitchell, the state’s new solicitor general, has qualified for a Texas law license. Jerry Strickland, a spokesman for the Texas Office of the Attorney General, says Mitchell, who had been an assistant professor at George Mason University School of Law in Virginia, received a notice over the weekend saying he was licensed as of Dec. 9. But Julia Vaughan, executive director of the state’s Board of Law Examiners, says the letter that the BLE sent to Mitchell on Dec. 9 advised him that he had met all the requirements for licensing. Kelley Jones King, deputy executive director of the State Bar of Texas, says in an interview this afternoon that Bar records do not show Mitchell has joined the State Bar of Texas as of yet. “He has to file his registration form and pay his fees before he’s actively a member of the State Bar,” King says. Vaughan says the BLE received Mitchell’s application for a license on Aug. 13 and that the time it took to process his application was fairly typical. While Vaughan says that confidentiality requirements prevent her from discussing the process any application goes through, she notes that Mitchell qualified for licensing under Rule 13 of the Rules Governing Admission to the Bar of Texas, which applies to attorneys from other jurisdictions. Under Rule 13, an applicant who has a valid, active law license issued by another state is eligible to be licensed without sitting for the Texas Bar Exam. But to qualify for the Rule 13 exemption, an attorney must have been “actively and substantially” engaged in the practice of law in any state or elsewhere for at least five of the last seven years, hold a J.D. degree from an approved law school and not have failed the Texas Bar Exam. Texas Attorney General Greg Abbott announced Dec. 10 that he had appointed Mitchell as solicitor general to replace James C. Ho, who resigned effective Dec. 9. Ho is rejoining the Dallas office of Gibson, Dunn & Crutcher as a partner.  The Texas Tribune reported online today that Strickland said Mitchell’s appointment was the result of a national search. When asked how many applications the OAG received in its national search and how many candidates were interviewed for the solicitor general’s post, Strickland says, “I’ll have to check on that and get back to you.”
-- Mary Alice Robbins

This week in Texas Lawyer

Diversity report: Senior reporter Mary Alice Robbins looks at what the Dallas Diversity Task Force has found regarding big firms in Big D and hears from the group's chairman, John Trevino (pictured).

Associational standing: Senior reporter John Council looks at a 5th Circuit opinion involving a suit by a doctors' group against the Texas Medical Board.

Death penalty: Senior reporter Brenda Sapino Jeffreys looks at unusual developments in a pretrial hearing.

Front-row seat: SMU Dedman law students will learn about the Texas Rangers Baseball Partners bankruptcy from the court-appointed mediator and auctioneer, U.S. Bankruptcy Judge Russ Nelms of the Northern District of Texas (pictured).

Inadmissible. VerdictSearch. Newsmakers. Discipline. VerdictSearch. Case Summaries.

Letter to a young trial lawyer: David K. Bissinger examines the ins and outs of excluding evidence.

Lisa Blue Baron's Saturday night holiday bash features Sheryl Crow, Boz Scaggs and others

Around 7:30 in the evening on Dec. 11, the streets of Dallas’ tony Preston Hollow neighborhood transformed into a parking lot, as cars inched through to deposit some 1,800 gussied-up guests at Lisa Blue Baron’s residence for her holiday bash. Blue Baron, a Dallas plaintiffs lawyer and jury consultant, pulled out the red carpet (literally) for the celebration in honor of her late husband Fred Baron, who died in 2008, and to raise money for the Walden Woods Project. It’s a nonprofit organization started by musician Don Henley to preserve the land, literature and legacy of Henry David Thoreau through conservation, education, research and advocacy. Blue Baron hired Sheryl Crow (pictured in first photo, on left, with Blue Baron on right) who sang for the crowd of merrymakers. Crow also commended Blue Baron as a committed political activist and multitasking mother. The Dukes of September, a group formed by Boz Scaggs, Steely Dan’s Donald Fagen and Michael McDonald, formerly of The Doobie Brothers, took over after Crow. Blue Baron danced with Emmitt Smith (pictured in second photo), who a few years ago took a successful turn competing on the ABC television show “Dancing With the Stars.” For her party, Blue Baron cut the rug “without falling,” she notes in an e-mail after the party. Everything she learned in her preparation for that dance, Blue Baron writes, is “applicable to trial work.” With bright red peonies in the buffet-table centerpieces and plenty of lawyers talking very little shop, the evening surely met Blue Baron’s stated objective on the invite: “All I want to do is have some fun.” In attendance were plaintiffs lawyer Marc Stanley, a principal in Stanley Iola in Dallas; Dallas mayor Tom Leppert; and former Dallas Mayor Laura Miller and her husband, former state Rep. Steve Wolens, a principal in Dallas’ McKool Smith.

UPDATE: Lisa Blue Baron's holiday party raised $200,000 in donations for the Walden Woods Project; the Baron and Blue Foundation is donating another $200,000 to Walden Woods.

-- Miriam Rozen

This week in In-House Texas

Wearing two hats: Research editor Jeanne Graham talks with Stan McCormick (pictured), a banking industry veteran who advises two boards of directors.  Bonus: From trust to alternative billing, McCormick shares his thoughts on some GC best-practices questions.

Work Matters: Michael P. Maslanka has a game of "Claim or no claim? for GCs.

New deals.

Special Report on Labor & Employment

Getting the facts: Vianei Lopez Robinson discusses how to handle workplace investigations.

The right combination: James D. Jordan explains how to protect a business from employee class actions.

Troubling note: Find out how attendance and sick-time policies can lead to lawsuits.

 

Former Judge Samuel B. Kent’s request for an order to vacate, set aside or correct his sentence denied

Former U.S. District Judge Samuel B. Kent, who is serving a 33-month prison sentence, isn’t going to get a new sentence. On Dec. 8, Senior U.S. District Judge Roger Vinson of the Northern District of Florida signed an order that adopts a U.S. magistrate judge’s report and recommendation and denies Kent’s request for an order to vacate, set aside or correct his sentence. In August, Kent, who was a judge in Galveston, filed the motion seeking an evidentiary hearing. In that motion, Kent alleged his sentence should be reviewed on three grounds: The U.S. Bureau of Prisons ignored the sentencing judge’s intent by denying Kent admission to the Residential Drug Abuse Program (RDAP); he was subjected to “conditions tantamount to psychological and physical torture” since he began serving his sentence in June 2009; and his sentence violated due process. However, in his Dec. 8 order, Vinson wrote that he is granting Kent’s request for an evidentiary finding to the extent that it seeks Vinson’s sentencing intent. Vinson wrote that he had “no expectation” Kent would receive a reduction of his sentence for participating in the RDAP or any other Bureau of Prisons program. “While I anticipated that the defendant needed the benefit of several of the Bureau of Prisons’ medical, mental health, and substance abuse programs, I knew that he could not qualify or participate in all, or perhaps in any, and that the security level of the institution to which he was designated and the separation requirements would probably receive BOP priority,” Vinson wrote. Kent’s criminal-defense attorney, Dick DeGuerin, a partner in DeGuerin & Dickson in Houston, says he’s disappointed with Vinson’s order, but “there’s not much more we can do. . . . The next step is he’s just going to have to be released when the BOP says he can be released,” DeGuerin says, noting that Kent may be allowed to end his incarceration in a halfway house. According to the BOP website, Kent, who is in custody in Florida, is scheduled to be released in November 2011. DeGuerin says Kent completed an alcohol abuse program while in prison in Florida, but it did not give him credit that would reduce his sentence, as the RDAP would. When sentencing Kent, Vinson recommended the former judge participate in the RDAP, which, if successfully completed, would give Kent a 12-month credit on his sentence. However, Kent alleged in his motion that the BOP has “officially denied Kent admission into RDAP” because he was sober during the 12 months preceding his arrest. Peter Ainsworth, a prosecutor at the U.S. Department of Justice in Washington, D.C., who prosecuted Kent, declines comment on Vinson’s order. However, in a September opposition in United States v. Samuel B. Kent, the government urged Vinson, who sentenced Kent while sitting on assignment in Houston, to deny Kent’s motion. On May 11, 2009, Vinson sentenced Kent to 33 months in prison. Kent earlier had pleaded guilty to one count of obstruction of justice as part of a plea deal.

-- Brenda Sapino Jeffreys