Litigation and trial practice

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, 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.


Andrew McCabe, former Deputy FBI Director was fired late Friday, the last work day before his retirement would have vested. After he was fired, Politico released an interview in which the embattled Deputy explained that Pres. Trump had been after him, tweeting about him since late December, 2017. It was in December when it became public knowledge that Mr. McCabe could corroborate James Comey’s concerns about Pres. Trump.

Mr. McCabe is referring to something often seen in sexual harassment cases. If the alleged victim discusses the unwanted harassment with a co-worker or friend, that helps corroborate her complaints. Harassment generally happens behind closed doors. There are usually no direct witnesses. But, if the victim discusses her experiences at or about the time of the harassment, that testimony from a friend or co-worker is probably admissible. That appears to be the value Mr. McCabe provides for Mr. Comey. And, that corroboration apparently attracted the attention of the President.

The lawyer for Mr. McCabe, Michael Bromwich, is a former IG for the Department of Justice. He indicates in the Politico news report that rarely have IG investigations progressed so quickly. The investigation started in late December, and now, three months later, the Deputy Director has been fired. As we know from discrimination cases, any major deviation from normal procedure will support an inference of illicit motive.

Mr. Mccabe explained that he was effectively removed from his post in January. He apparently means he was asked to leave his position as Deputy Director and serve in a different capacity, He was not willing to do that. So, on short notice, he was told he had to leave his post and use his terminal leave. That means since January, he has been at home on leave.

And, as these events were unfolding, Pres. Trump was tweeting about McCabe’s “race” to obtain his benefits before he might be fired. And once Mr. McCabe was fired, the President again tweeted his pleasure that he had been fired. He expressed no regret for McCabe’s loss of his pension. Those sorts of tweets do help show that the President was involved somehow in the alleged discipline of the Deputy Director. Evidence takes many forms. These tweets by themselves do not mean much. But, in conjunction with other types of evidence, these tweets provide the crucial look to the President’s intent. Obstruction of justice is a crime of intent.

If this were a discrimination case, I would be thrilled to have a supervisor tweeting about his hopes and desires in regard to my client. And, then at the end, the supervisor claps and celebrates the firing. Any decent lawyer could make wonderful use of those sorts of comments. The President may well come to regret this tweeting before this is all done. Deputy Director McCabe was employed by the FBI for 21 years. The DOJ just now discovered he was not a good employee? If this were a discrimination lawsuit, I would love to have this sort of evidence.

See Politico report.

You can file a lawsuit about anything. But, that does not mean you should. Yet, it appears a former TCU football player has done just that. Kolby Listenbee, a talented receiver for the TCU football team from 2012 to 2015, has filed suit against Texas Christian University for supposedly pressuring him to play while he was hurt. Mr. Listenbee says Coach Gary Patterson bullied him into playing while he was hurt. Many former TCU players have come to the defense of Coach Patterson, insisting they also played hurt but did not feel forced. See Ft. Worth Star Telegram column by Mac Engel.

Coach Patterson indicates he feels a little hurt by the lawsuit. But, he cannot discuss the lawsuit in any detail. See Star Telegram report. He insists it has always been about the 40 years after graduation, not the 4 years in college. Mr. Listenbee says the coaches forced him to play before he was fully healed. See Ft Worth Star Telegram report. He said his problem was with some coaches, not all of them.

As Mr. Engel explains, this is really a lawsuit against football itself. All football coaches bully to some degree. But, in the world of lawsuits and courts, Mr. Listenbee will have to show someone pointed a gun at his head and made him don his pads. Otherwise, no. Subtle or even not-so-subtle pressure does not count as “forced” to play. If that were true, there would be millions of lawsuits literally overnight against football coaches across the country. In fact, now that I think about it, I have this trick thumb I got when a coach “forced” me to play little league baseball when I was 12…….

Judge Edith Jones is at it, again. In a recent opinion, in which she was the  loser, she traded angry barbs with her judicial colleagues who comprised the majority opinion. In the case of Doe v. Office of Refugee Resettlement, No. 18-40146 (5th Cir. 3/1/2018), the court addressed the situation of a pregnant immigrant who sought an abortion. A non-profit group referred the young immigrant to lawyers who would assist her in seeking an abortion. The lawyers met with the young immigrant who confirmed she wanted an abortion. They set the matter for hearing in a state court. In the U.S., a person can seek an abortion without parental approval if she proceeds to court.

But, the Office of Refugee Resettlement (ORR) would not let the two lawyers meet again with the young woman. The ORR passed a note to the lawyers apparently from Ms. Doe indicating she no longer wanted an abortion. ORR refused to produce the young woman at the hearing. The lawyers tried to meet with their client, but ORR refused to allow such a meeting.

About that same time, the state court appointed the two lawyers, Myles Garza and Rochelle Garza to represent the young immigrant. The Garza’s then removed the lawsuit to federal court and the federal court refused to allow the move to federal court. The Garza’s appealed that order.

Judge Jones characterized the meeting between the two lawyers and the young immigrant in dark terms, describing the meeting as “Doe came into contact with lawyers who had learned about her pregnancy” – a description to which the majority opinion objected. As the majority explained, the only issue that matters is that Ms. Doe once wanted an abortion and now may not want one. How the lawyers happened to come to represent their client should not matter.

Judge Jones accused these “agenda-driven” lawyers of preying upon a young immigrant, said the majority opinion. As the majority noted, judicial spin did not address the salient fact, whether the young unaccompanied immigrant has the right to an abortion or whether she wants one. Too, Judge Jones’ characterization ignored the contrary facts as presented by the Garza’s, two officers of the court. That is judge-speak for Judge Jones jumped to conclusions based upon little or no evidence.

Having dispensed with the accusations made by the dissent, the majority opinion found it an easy question that when a minor requests an abortion, a state court holds a hearing and the federal agency lacks a valid defense to the state court, then removal is proper. The proper course is to ask the minor female what does she want. The court found that if the minor female wanted an abortion, it is not the role of the federal agency to obstruct that wish.

The majority opinion addressed the constitutional argument posed by Judge Jones in her dissent. It noted that that argument was neither raised or briefed by either party. The court then found there was no “war” here, just simple fact issues – apparently referring to what does the minor female want.

In her dissent,. Judge Jones described Jane Doe as a “pawn” in a fight for control by the federal government over its relationship with unaccompanied minors who are in its custody because they have not been allowed legally into the country. Judge Jones argued that Ms. Doe was in the custody of ORR and they were legally responsible for her. Judge Jones accused the two lawyers of having an “avowed advocacy agenda” apparently based on Rochelle Garza’s status as a named plaintiff in a lawsuit for a class action for unaccompanied minors seeking abortion. The judge accused Ms. Garza of seeking to “usurp” decisions that ORR should make. The judge accused the Garza’s of not seeking to work with ORR in regard to Ms. Doe.

The two Garza’s, asserts Judge Jones, “have demonstrated by word and deed that their goal is to foster abortions.” The judge then asserted that what was “unsaid” in the majority opinion was that there was some constitutional right to abortion via this bypass court procedure in state court. Judge Jones argued that a bypass court is not needed when Ms. Doe already has a custodian, ORR.

Judge Jones apparently objected to the majority opinion describing the judge’s dissent as seeing this lawsuit as part of a “war.” Judge Jones insisted in a footnote that she is not Joan of Act. She explained that anyone who is “well-educated” should know that the phrase “win the battle, lose the war” referred to a Pyrrhic victory. Judge Jones was clearly annoyed, as were the majority opinion authors. Her focus on this tenuous request for an abortion as part of the “war” on abortion does seem over the top. I have written about Judge Jones before in regard to her difficulties with her colleagues on the Fifth Circuit. See my prior post here. Judge Jones can be very caustic for a judge. She seems very certain of her positions.

Back in 2011, Judge Jones grew impatient with Judge Dennis, a more liberal member of the court, when Judge Dennis asked one too many questions, at least in her opinion. Judge Jones told Judge Dennis to “shut up” and asked him to leave the court room. As Above the Law blog explained, it is exceedingly rare to hear one judge tell another to shut up. See Above the Law explanation about what happened in 2011 here. Judges Jones seems very certain of her positions. She did later apologize to Judge Dennis.

See the decision in Doe v. Office of Refugee Resettlement here.