Litigation and trial practice

Judge Lynn Hughes in the Southern District of Texas is a difficult judge. He harangues attorneys who appear before him. He cancels discovery, even though the federal rules of civil procedure provide otherwise. He is a difficult judge on several levels. In the case of USA v. Swenson, No. 17-20131 (5th Cir. 7/3/2018), the US Attorney prosecuted an adoption agency for fraud. Shortly before trial, the US Attorney dumped thousands of documents on the defense. There were indications that the prosecution had been hiding or withholding documents until the defense knew to ask for those specific documents. The day before trial, the parties had another conference in front of Judge Hughes. The prosecution brought yet another large pdf file of documents to the hearing. The prosecutor apologized to the court, saying she had overlooked the documents.

Judge Hughes fussed at the prosecutor. He said she is supposed to know what she is doing. He said it was better in the old days, because the prosecutors wore dark suits and blue ties. They did not let “girls” do this in the old days. The case had been continued three time already. So, the judge dismissed the case with prejudice.

On appeal, the Fifth Circuit panel found there was no Brady violation here, meaning the prosecutor did not intentionally withhold material that would have helped the defense. It noted that the district court did not explain why one more continuance – the first continuance to be requested by the prosecutor  – would not suffice. The Fifth Circuit reversed the dismissal and remanded the matter back to the district court. But, remarkably, the appellate court remanded the case not back to the same judge, but to the chief judge to re-assign the case to a different judge. That is, the court remanded the case to a different judge, not back to Judge Hughes. See the decision here.

Reassigning to a different judge is as clear a rebuke as judges get. I expect it was the comment about “girls” that concerned the court of appeals. But, Judge Hughes is always a concern for the Fifth Circuit.

Parties to a lawsuit rarely discuss sanctions, but at least in federal court, sanctions are a real, if rare, possibility. Secretary of State for the state of Kansas, Kris Kobach, learned about sanctions. Mr. Kobach was advocating for the state’s voter ID law. The federal judge hearing the matter struck it down, finding that there were only 67 instances of non-citizens registering or attempting to vote in 19 years. The court found that the state of Kansas did not show an actual problem existed.

Secretary Kobach represented the state in the lawsuit. He was the responsible party. The state of Kansas failed to comply with discovery rules several times. The Judge said Secretary Kobach chose to represent himself in this matter. As such, the responsibility is his. The judge had previously found the Secretary of State in contempt for failing to follow court orders regarding voter notices. He had also been ordered to pay the plaintiff’s attorney fees.

Mr. Kobach excluded evidence which had been requested, yet he tried to use the same evidence during trial. That is as clear a violation of the discovery rules as it gets. The judge ordered the Secretary of State to take an extra six hours of Continuing Legal Education credit hours. The case is styled Fisher v. Kobach. See ABA Bar Journal report.

You know you messed up when the judge orders you to take CLE. Most of would suffer acute embarassment over being sent to Sunday school.  But, in the midst of the culture wars, Mr. Kobach may use this as a springboard to higher office. This is the same Kris Kobach who formerly chaired the President’s so-called Commission on Voter Fraud.

Well, the Texas Supreme Court surprisd me. They rejected the City of San Antonio’s appeal regarding the fire fighter’s union contract. I mentioned in 2015 that the City seemed to be relying on an appeal to the Texas Supreme Court. See my prior post here. The Supreme Court rejected the City’s appeal with no comment. That can mean the Supreme Court did not believe the issue was worthy of their time. Or, it could mean it did not disagree with the Fourth Court of Appeals decision. We do not know what the denial of the appeal means. When a Supreme Court rejects an appeal, the rules do not require an explanation.

The issue concerned the evergreen clause in the firefighter’s contract. When the Collective Bargaining Agreement ends, the provisions stay in effect for another ten years. That sort of clause is known as an “evergreen clause.”

For the City, whatever the meaning of the denial, the result is the same. They must now deal with a fire fighter union that feels vindicated. See San Antonio Express News report.

I first wrote about Kolby Listenbee’s lawsuit here. He is suing Texas Christian University because he claims the football staff, including the head coach, bullied him into playing even though he was hurt. Mr. Listenbee was recently cut by the Indianapolis Colts. A website, frogswire.com then posted a satirical post suggesting Mr. Listenbee is fragile and made of glass. Listenbee lashed out in a tweet accusing the TCU Horned Frog fans of being fake fans. His tweet claims that TCU fans only support the team when it is winning. He later deleted that tweet.

Frowgswire appears to be an independent website devoted to Horned Frog sports. See the frogswire post here.

As I mentioned earlier, this is a difficult lawsuit for the plaintiff. Mr. Listenbee is trying to argue the coaches’ conduct toward him harmed his athletic ability. But, here he is competing for a spot on a professional football team. Too, he is basically suing football for being football. To some degree, all coaches apply pressure to players to play with some injuries. To win his lawsuit, Mr. Listenbee will have to show that the TCU coaches went beyond the normal conduct of the average football coach.

A few years ago, Coach Mike Leach was fired by Texas Tech University in part because he sent a player suffering from a concussion to go stand in a dark shed on the practice field. And, of course, many years ago, the famous coach, Woody Hayes was fired after he struck a player. In every field or industry, the norm will vary. Compared to these two cases, the TCU coaching staff was relatively benign. Mr. Listenbee will have to have something better than simple verbal pressure or a guilt trip.

Full disclosure: I graduated from TCU with the class of 1980. Yes, it is true that attendance at games is way up compared to the late 1970’s. But, his lawsuit is not about the fans. It is about football.

Yes, shifting explanations alone can show pretext. A changing explanation for a firing can serve as evidence of lying. Numerous courts have so held. See, e.g., Henderson v. AT&T Corp., 939 F.Supp. 1326, 1338 (S.D. Tex. 1996); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 238-239 (5th Cir. 2015). So, when Pres. Trump initially said he knew nothing about payments to Stormy Daniels and that reporters should ask his lawyer Michael Cohen about those payments, that was one explanation. And, now a month later, he says he did know about the payment of $130,000 to Stormy Daniels and it was not a campaign contribution. This is a new explanation. Now, this is a shifting explanation. As the Fifth Circuit said in Burton, a jury can infer pretext from shifting explanations. Burton, 798 F.3d at 236. A jury need not draw that inference. But, it can do so.

And, as lawyers around the country are saying at this moment, Pres. Trump just made his defense much more difficult.

For decades, there has been such a thing as the attorney client privilege. In our system of justice, we depend on lawyers who represent clients zealously. To protect that representation, we have developed this attorney client privilege. Until Watergate, the privilege applied to every communication between a lawyer and his/her client. But, the Watergate conspiracy had many facets, one of which was some lawyers refusing to answer questions based on the attorney client privilege. Many of the Watergate actors were lawyers, so the privilege was invoked many times. So, among the many Watergate reforms, the American bar Association re-looked the attorney client privilege.

The ABA researchers modified the privilege. They recommended that it not apply to planned or future crimes. Yes, zealous representation is still critical to our judicial system. But, said, the ABA committee, zealous representation is not as important as preventing crime and harm to others.

So, when Pres. Trump says the attorney client privilege is dead, he is wrong. He exaggerates, of course, but even allowing for hyperbole, he is wrong. The attorney client privilege has not included crimes yet to be committed for several decades. We do not know yet what supported the search warrant for Michael Cohen. But, with all the multiple layers of review it received, it is very likely the U.S. Attorney for the Southern District of New York is looking at possible crimes, yet to be committed. See Politico news report.

And, by the way, it is not unheard of for law enforcement agencies to seize documents from successful criminal defense attorneys. It is rare to do so, but it happens. Some law enforcement agencies become convinced that some defense lawyer, especially after winning a few trials, are committing crimes him or herself. So, sure, they might investigate some criminal defense lawyers by conducting a raid at his/her office.

Pres. Trump says he has no no idea why a lawyer representing him paid $130,000 to Stormy Daniels. See CBS news report. He was asked if he knew about Michael Cohen’s payment of $130,000 to Stormy. The President answered, “no.” He added the reporter should ask his lawyer, Michael Cohen, about the payment. “Michael Cohen is my attorney,” the President added.

Those are extraordinary things to say. His lawyer, Michael Cohen, used the Trump campaign email address when he communicated with he Daniels attorney. In disclaiming any knowledge of the payment, Pres. Trump has suggested Michael Cohen took some action without his client’s consent. That exposes Mr. Cohen to ethical issues with the bar association. It also means Michael Cohen becomes a witness.

Mr. Cohen is now a witness who can be deposed about his discussions with then Candidate Trump and questioned about why he would make payments for the benefit of Trump without his consent. In fact, the President said to ask his lawyer about the payment. That makes Mr. Cohen a witness, not a lawyer any longer, in regard to that $130,000 payment. And, this answer makes Pres. Trump a key witness, as well. He will surely be deposed about what he knew or did not know about the payment to Stormy.

It was a difficult question for the President to answer. Answering yes would have caused him as many problems as no. The only safe answer would have  been to ignore the question. But, Pres. Trump cannot ignore questions. His instinct is to always push back in some way. This “push back,” however, will likely haunt him for weeks and months as Stormy’s lawsuit progresses.

Hiring a lawyer poses perils for any client. Not only must the lawyer have sufficient expertise and competence, the client needs to get along with the lawyer. They are locked in a major endeavor that will last months, if not years. Yes, a lawyer can quit or be fired. The client can quit or be fired. But, termination is not simple. A lawyer cannot ethically leave a case too close to trial or to a major event in the lawsuit. In federal court, some judges will not let a lawyer quit.

So, once hired, lawyers do not often leave a case before it concludes. That helps explain why so many lawyers avoid what otherwise appears to be a prime client, Donald Trump. Most lawyers would jump at the chance to represent a President and the recognition it can bring. Like all types of business, lawyers rely on good reputations to attract new clients. A high profile lawsuit or criminal defense builds name recognition. Yet, many lawyers are avoiding the President’s case. As one Washington attorney, Mark Zaid explained, “I don’t have the time, energy or patience to babysit a client who ignores my expertise and opinions.” See The Hill report.

That is the problem. It does not build name recognition to accept a case and then the case goes south, badly. If a client consistently disregards my advice, absolutely, I would resign from that case. And, absolutely, if I knew ahead of time that a client frequently disregarded sound legal advice, I would never accept that client. No one needs headaches like that. Those are the sorts of clients who lead to bar grievances. Taking on a client like Donald Trump amounts to career suicide. No matter how competently a lawyer performs, the case is very likely to fail.

This problem in finding a lawyer compounds itself as time goes on. Much has happened in Pres. Trump’s criminal case. Even if a new law firm was hired today, it would require weeks for the lawyers to catch up on where John Dowd was before he left. Those are weeks in which the Muller investigation will proceed without any real opposition from the President. Tweets do not count as legal opposition.

The best advice I can give to folks looking at hiring a lawyer, is to interview 2 or 3 lawyers. Once you pick one, follow his or her advice. You can and should disagree from time to time. But, if you consistently disagree regarding major strategic issues, then it is time to part ways. And, never, ever undermine your own lawyer publicly.

Stormy Daniels signed a Non-Disclosure Agreement with Michael Cohen. There is a place on the agreement for the signature of “David Dennison,” who is probably Donald Trump. Mr. Dennison/Trump never signed the agreement. The NDA includes a liquidated damages provision. “Liquidated” damages simply means damages would be hard to determine, so the parties agree in the NDA itself what the damages should be. As Harry Litman explains, this liquidated damages provision represents an effort at pre-determining the amount of damages if Stormy violates the NDA. See CNN news report. The agreement provides that if she breaches the agreement, she would be liable for $1 million per violation. So, Michael Cohn has sued her for $20 million claiming she violated the agreement 20 times.

Yea, yea, whatever. Selecting such  high amount shows bad faith on the part of Michael Cohen and Donald Trump. In any court in the country, anyone suing for $1 million or more better have a very good explanation for that figure. That high an amount suggests it was pulled out of the air. In every discrimination case that settles, the parties sign a settlement agreement. The settlement agreement often contains a non-disclosure provision, just like the one Stormy signed. Sometimes, but not often, the parties agree to a liquidated damages amount. The amount, at least in my experience, is never over $10,000. It just looks silly and amateurish to have an amount in six figures, much less seven figures.

The liquidated damages amount is intended as a guess-estimate regarding how much the damages would be. Otherwise, it would be exceedingly difficult to put a number to how a party has been harmed because the other party blabbed about the settlement. There may be no dollar value. So, generally, I personally oppose including a dollar value. For most of us who lack any notoriety, there is no monetary value to the harm caused.

No, as Harry Litman explains, this use of a million dollars is more “Bronx bluster” than actual legal argument. In 99.9 % of the court rooms in the country, the Trump/Cohen legal team would show themselves to be bullies or amateurs with that sort of a dollar amount. Mr. Litman tells her in his piece on CNN not to worry about the liquidated damages. I would tell her the liquidated damages provision helps her much more than it helps Mr. Cohen/Dennison/Trump. And, that does not even get into the issue regarding whether the agreement is binding. It may not be binding. Mr. Cohen can sign as a lawyer, but he cannot sign as a party. Only Dennison/Trump can do that.

The Texas State Office of Administrative Hearings provides a critical function to our state. The SOAH provides administrative judges in cases involving certifications and licenses for doctors, police officers and others. It is essential that the SOAH judges appear to be impartial for the process to work. But, recently, the SOAH process broke down completely. The Texas Medical Board licenses physicians in Texas. The TMB brought a case against a Dr. Robert Van Boven. The Administrative Judge, Hunter Burkhalter, found in favor of the doctor. It does not occur often that TMB loses, but this time, they did.

The accusations concerned three patients who accused Dr. Van Boven of improper touching. Judge Burkhalter found the evidence lacking. The TMB could have appealed, or it could accept the decision. TMB chose to accept the decision. But, while accepting the decision, the TMB chair read a statement stating that different judge might have reached a different result. Duh. That seems obvious. Different judges will indeed reach different results in close cases. The chair probably meant he believed Judge Burkhalter had a bias. And as part of his statement, the chair, Sharif Zaafran, questioned Judge Burkhalter’s impartiality.

But, the TMB was not satisfied. It sent a letter to SOAH accusing Judge Burkhalter of bias and questioned his ability to decide cases involving sexual misconduct impartially. The letter cited an overheard conversation between Judge Burkhalter during an unrelated hearing that super model Kate Upton was attractive. TMB argued in the letter that Judge Burkhalter’s decision in the Van Boven case was wrong, that it disregard certain evidence, even though they chose not to appeal the decision.

The CEO of TMB asked to meet with the Chief Administrative Judge of SOAH. The TMB and the SOAH are both state agencies. The meeting took place. Soon after, the Chief Judge of SOAH issued a letter to Judge Burkhalter reciting the concerns expressed by the head of TMB. In short, the SOAH questioned the judge’s ability and impartiality, even though the TMB chose not to appeal his decision.

Judge Burkhalter was fired soon after. See Austin Chronicle report. So much for an independent judiciary.