Texas Lawyer Blog

Morning docket

The Houston Chronicle reports, “A federal appeals court Wednesday foiled a Texas agency's attempt to derail a lawsuit the state says has ended public beaches on western Galveston Island. The 5th U.S. Circuit Court of Appeals denied a request by the General Land office that it throw out the case because the beachfront house at the heart of the lawsuit had been sold.”
 
The Texas Tribune reports, “Austin lawyer and anti-affirmative-action advocate Steven Wayne Smith is planning a return to the Texas Supreme Court. Smith . . . will challenge Justice Don Willett in the 2012 Republican primary, according to a campaign filing with the Texas Ethics Commission.”
 
“Austin police are investigating potential links between an unsolved 1988 murder and the strikingly similar killing of Christine Morton two years earlier in Williamson County, raising the possibility that a serial killer is to blame and bolstering claims that Morton's husband has been wrongly imprisoned for almost 25 years,” reports the Austin American-Statesman.
 
The Texas Tribune interviews former Texas Tech University football coach Mike Leach about his appeal before the Texas Supreme Court that seeks to challenge the university’s sovereign immunity so he can sue it over his firing.

-- Angela Morris

New U.S. magistrate judge selected for Eastern District’s Marshall Division

Eastern District of Texas judges today selected Roy S. Payne, a partner in Shreveport, La.’s Gregorio, Gregory & Payne, to fill the Marshall U.S. magistrate judge bench being vacated by Chad Everingham on Friday Sept. 30. The judges chose Payne out of 55 lawyers who applied for the position, says David Maland, the clerk for the Eastern District. Payne served as a U.S. magistrate judge in the Western District of Louisiana from 1987 until 2005 but returned to private practice when his children entered college, Maland says. “And now they are all through with school and Roy saw fit to apply for our position and the court selected him," Maland says. Everingham has not yet announced his future plans. Payne did not immediately return a telephone call seeking comment. U.S. District Judge T. John Ward will retire from the bench, also on Friday. President Barack Obama has nominated Rodney Gilstrap of Marshall’s Smith & Gilstrap to replace Ward and the U.S. Senate recently approved Gilstrap's nomination. It’s a relief to have two judges named considering they will soon be dealing with one of the nation’s largest patent dockets, Maland says. And the Marshall Division is one of the district’s busiest. “It’s a blessing for this to happen pretty close to the time that other judges are leaving,” Maland says.

-- John Council

Plaintiff who lost to pay court costs but not attorneys' fees in suit against KBR

In a Sept. 26 memorandum and order in Jamie Leigh Jones v. Halliburton Corp. d/b/a KBR Inc., et al., U.S. District Judge Keith P. Ellison of the Southern District of Texas in Houston granted an application filed by the corporate defendants — KBR and several of its subsidiaries — to have Jones pay court costs of $145,000. But Ellison denied the corporate defendants’ motions to have Jones and her lawyer, L. Todd Kelly of Houston’s Kelly Law Firm, pay attorneys’ fees. On July 8, a jury returned a defense verdict in Jones. On Aug. 3, Ellison signed a defense judgment on Jones’ claims of sexual harassment under Title VII and fraudulent inducement to enter into an employment contract by misrepresentation. Jones had been a contract worker for a KBR subsidiary in Iraq. In his Sept. 26 memorandum and order, Ellison wrote that Jones’ claims "were related to her alleged sexual assault" and "the subsequent retaliation allegedly imposed by the KBR Defendants." Ellison wrote, “While the flaws in Plaintiffs’ testimony may have strengthened KBR’s arguments and lent to its ultimate success in this case, they do not indicate frivolity or bad faith so as to justify the imposition of attorneys’ fees. Indeed, if such flaws were indicative of frivolity, then many unsuccessful rape victims would be subject to attorney’s fees in civil cases, regardless of the merits of their claims.” In an interview, Kelly says he is glad Ellison ruled that Jones’ suit was not frivolous. “I don’t know how he could have ruled otherwise.” Kelly also says Ellison’s ruling regarding the costs was correct since “under Texas law the costs are borne by the losing party.” But overall, Kelly says he is disappointed “in how this came out. I will go to my grave believing Jamie Leigh Jones was raped. In some ways, it feels like a personal failure.” In a statement Kelly emailed to Texas Lawyer, he writes: “It takes a lot of courage to bring a lawsuit against a well-financed corporation like KBR. Jamie Jones displayed that courage, and in the face of the risks and with the full knowledge that she may have to pay KBR's costs if she lost, she faced them — head on — in the only place where an individual can still try to stand against a corporation like that, a United States Courtroom.” Dan Hedges, a partner in Porter & Hedges in Houston who represents KBR and the other corporate defendants, says of Ellison’s memorandum and order: “I thought it was well reasoned. We thought we had good arguments for attorneys’ fees but we thought [Ellison] acted within his discretion” in denying those.

-- Miriam Rozen

261st District Judge Lora Livingston of Travis County is new local administrative judge

Judges in Travis County have elected 261st District Judge Lora Livingston as their new local administrative judge. Among other things, Livingston will chair judges’ meetings and provide leadership on local initiatives to meet the changing needs of the community, she says. Her two-year term began Sept. 1. “I’m excited about the opportunity and I’m grateful for the confidence my colleagues have placed in me to hold this position,” Livingston says. She says she wants to explore new ideas to address the changing Travis County community. For example, more litigants represent themselves pro se, and more people do not speak English. Also, with people’s schedules in today’s world, Livingston says it may make sense to explore the idea of holding court outside standard 8 a.m. to 5 p.m. business hours. “I sought the position because I wanted to explore those issues further and try to make a difference as it relates to those people who have those issues,” she says, adding: “I’m hoping it will be fun to work on some of these things.” Livingston replaces 250th District Judge John Dietz as local administrative judge. Dietz was out of the office and did not return a telephone call seeking comment.

-- Angela Morris

Morning docket

Marina Marmolejo for the Southern District of Texas is one of the judicial nominees U.S. Senate leaders plan to consider within the next several seeks, “stepping up the rate that senators have been considering judges in recent months,” reports The BLT, a Texas Lawyer affiliate.
 
Some homeowners have filed suit over the Bastrop wildfire. “A utility knew about wildfire dangers amid Texas’ severe drought but failed to remove dead trees and branches near power lines that sparked the most destructive wildfire in state history, an attorney said Tuesday after filing a lawsuit for some families who lost their homes,” according to an Associated Press story in The Washington Post.
 
“Pflugerville could become the latest Central Texas school district to lend its name to a lawsuit that will challenge the state's school finance system,” reports the Austin American-Statesman. “The Hutto, Taylor and Elgin school districts have already joined with more than 100 other districts in a legal fight against a funding system that they say is unfair and unconstitutional.” Parties expect to file suit next month, the story says.
 
The BLT reports, “The Supreme Court today agreed to take up a California case that could determine whether private lawyers hired as outside counsel by local governments are immune from civil rights lawsuits challenging their actions.”
-- Angela Morris

Judge Sam Sparks Talks About “Kindergarten Party” Order, Jones’ Email

U.S. District Judge Sam Sparks of Austin is not usually one to keep his opinions to himself. So when a controversy ignited over his now famous “Kindergarten Party” order, Sparks was unusually silent — because he was on vacation in Rome. “I’ve written a lot worse things than that,” says the judge. “I didn’t think it was a big deal and still don’t.” To read the full story, click here.

-- John Council

Sherman federal bench: still vacant after all these years

What will happen to the patent-heavy Marshall docket with the retirement of U.S. District Judge T. John Ward? That’s a big topic of discussion at the 15th Annual Eastern District Bench Bar Conference, which is wrapping up today in Las Colinas. But what about an Eastern District of Texas bench that has been vacant since October 2006, when U.S. District Judge Paul Brown of Sherman retired? Various visiting district judges have shared that docket ever since. On May 13, the Grayson County Bar Association (GCBA) sent a letter to U.S. Sens. Kay Bailey Hutchison and John Cornyn, both Texas Republicans, to ask them to help fill the open bench in the U.S. Courthouse in Sherman. “This Division handles more than half of the Eastern District’s entire criminal docket, along with many complex intellectual property cases for which the Eastern District has become known,” the GCBA wrote. “A platooning of visiting federal judges has tirelessly worked to cover the Sherman docket, with considerable attendant stresses on them and their staffs.” The association also noted in the letter that the federal court presence in Sherman may wither -- a shame because Sherman was one of the first federal courts in the state of Texas. “We really need to get this bench filled,” says Roger Sanders, a partner in Sherman’s Sanders, O’Hanlon & Motley and former GCBA president who signed the letter. Scott Gosnell, a spokesman for Cornyn, says the senator has not yet made a recommendation to President Barack Obama for the Sherman bench. A representative for Hutchison could not immediately provide comment.

-- John Council

Former Eastern District of Texas jurors share their thoughts

On Sept. 26, Johnny Ward and Jennifer Doam gave a presentation titled "Myth and Mysteries of ED Texas" at the Eastern District of Texas Bench Bar Conference at the Four Seasons Resort & Club in Las Colinas. Ward, a partner in Longview’s Ward & Smith, and Doam, a partner in Texarkana’s Haltom & Doan, introduced a panel of former jurors who had served on federal cases in the Eastern District. The lawyers then proceeded to ask the five former jurors, including one who appeared via video teleconferencing from her kitchen, about their recent experiences in court. Most of the former jurors agreed that the lawyers involved in their cases were cordial, but some counsel needlessly repeated themselves and were a bit aggressive and arrogant. And how did jurors feel about out-of-state attorneys? Lawyers who didn’t speak with an East Texas drawl? “As long as we could understand what they were saying, it didn’t matter,” said one former juror, a remark that drew laughter from the packed audience. The conference began Sept. 25 and wraps up today.

-- Miriam Rozen

Morning docket

The Austin American-Statesman reports, “Travis County prosecutors dropped a bombshell on the Michael Morton murder case Monday -- a sealed, two-page file detailing a pending case that apparently bolsters Morton’s claim that he was wrongly convicted almost 25 years ago. District Judge Sid Harle revealed the sealed file to prosecutors and defense lawyers during a Monday afternoon hearing, then adjourned to give both sides time to read it.”
 
Late last week at a meeting in Huntsville, academics, law enforcement, prosecutors and a handful of advocates met to talk about creating a model policy on eyewitness identification, reports Grits for Breakfast. The Law Enforcement Management Institute of Texas (LEMIT) is creating the model policy after legislation this spring required it.
 
“Energy equipment maker Lufkin Industries Inc. asked the U.S. Supreme Court earlier this month to review a Fifth Circuit decision denying its request to decertify an employee class alleging racial discrimination, based on the Wal-Mart Stores Inc. v. Dukes decision,” reports Law360 (subscription).
 
“Law schools will not have to report to the American Bar Association the percentage of their 2010 graduates who landed jobs requiring bar passage or the percentage of graduates in part-time jobs,” reports The National Law Journal, a Texas Lawyer affiliate. The ABA’s questionnaire committee says it finalized the questions too late for this year, but some reformers say “the ABA is protecting law schools.”
 
“Ultimately, the Federal Housing Finance Agency's (FHFA) recent lawsuits against 18 of the world's largest financial institutions on behalf of Fannie and Freddie may come down to one basic question: disclosure. Did the banks omit or misstate material information about the securities they sold to Fannie and Freddie?” reports The National Law Journal. The story says an “intense legal fight is taking shape” that one lawyer thinks will be a “battle of the heavyweights.”
-- Angela Morris

Locke Lord Bissell & Liddell shortens its name

Beginning today, Dallas’ Locke Lord Bissell & Liddell is now simply Locke Lord. The shorter name “acknowledges what people are already calling us and what we call ourselves,” says Jerry Clements, a partner in Austin who chairs the firm. “The name, as it was before, was a mouthful,” she says. Clements says the firm’s partners approved the name change during the summer, but it has taken a while to prepare for the transition to the shorter name, because of the need to put a new logo on items such as stationary, marketing materials, the website and signage. The firm has been known as Locke Lord Bissell & Liddell since the 2007 merger of Texas firm Locke Liddell & Sapp and Chicago’s Lord, Bissell & Brook. The 651-lawyer firm has 13 offices, including Austin, Dallas and Houston.
-- Brenda Sapino Jeffreys