Some judges are exceedingly difficult. Judge Lynn Hughes in Houston seems to consistently press folks’ buttons. Most recently, he has barred a female Assistant U.S. Attorney from his court. Tina Ansari has appeared in Judge Hughes’ court twice in the past few weeks. She was excused from the court by Judge Hughes both times right after she announced her name for the court reporter. Meaning right after saying hello, the judge told her to leave. The U.S. Attorney himself then appeared before Judge Hughes and insisted he must assign prosecutors, not the Judge. The Judge then insisted he had been slighted in an appeal regarding Judge Hughes a few years ago.

A few years ago, the U.S. Attorney appealed a ruling by the Judge and mentioned his remarks about women. In those remarks, the Judge had apparently said in the old days, they did not allow “girls” to practice law in the courtroom. His remark could have been interpreted in a couple of different ways. In any event, Judge Hughes took offense at how his remark was mentioned by the US Attorney’s Office. See Houston Chronicle report here.

These issues seem to follow Judge Hughes. Litigation is difficult enough. To be fair, in every lawsuit, we work with people. And, the judge is human, after all. … Judge Hughes, it seems, is more human than many of his peers.

My colleague and friend, Mike Maslanka, at Work Matters, pens a nice post about questions to pose to the employee plaintiff.  See post.  Mike’s post discusses good questions to ask the plaintiff.  Mike generally represents employers.  These questions would usually come during the deposition or the trial.  His point is that the better questions for the employer to ask are not "home run" type questions, but the doubles and triples.  "is this a fair summary?"  As Mike points out, this question, often in a deposition, is not all that fair.  The question often is slanted just a bit to favor the employer.  The goal is to elicit testimony the employer can use to seek dismissal of the case or summary judgment. 

 "Take it to the limit one more time."  Mike makes a valuable point here.  He means the employer’s lawyer should look for ways to press the issue regarding personality conflicts.  If he can show the employee was fired due to personality issues, then that undercuts discrimination or some other illegal motive playing a role.  And, he hopes to show that the employee is unreasonable. 

The plaintiff employee who cannot set aside his/her anger will surely lose. The employee needs to show some appreciation for the opposing point of view.   "Niceness" does count in litigation.  Ultimately, we all answer to a judge and jury for everything we do in a lawsuit.  An employe (or employer) who comes across as unforgiving or unreasonable will lose.  The jury does not understand the law very well, but they tend to understand human nature very well.  They do not sympathize with plaintiffs who cannot get past the emotional pain. 

Its a fine line the plaintiff employee must walk.  S/he must be firm, but not cross.  S/he must be "nice" but not easily pushed around during questioning.  It is a difficult task.  But, the employee who cannot set aside anger to some degree loses credibility. 

Its a truism that applies elsewhere.  In my time in the Army, some  28 years in the Army, Army Reserve and National Guard, personnel issues occurred with some frequency.  "He said, she said" disputes were not unheard of.  If one side could discuss the issues with some balance, that soldier gained credibility.  Litigation is no different…….

Well, the Texas Supreme Court is again dismantling victim’s remedies.  But, this time, they are working against small ranchers.  In Bennett and Bonham Corp. v. Reynolds, the court took away another jury verdict.  This time it was a cattle theft case.  The jury awarded $5,327 in actual losses and $1.25 million in punitive damages.  The Supreme Court considered whether the punitive damages were too high in relation to the actual losses and said the amount was too high.  The court found that the 235:1 ratio was too high.  

Punitive damages are designed to punish a transgressor, beyond mere negligence.  The Texas Supreme Court reversed the lower appeal court and found that Bennett’s trangsressions were more about the litigation than about the actual theft.  The two ranching families were neighbors and nursed a long-time feud.  Seventeen head of cattle strayed onto Bennett’s property.  Bennett sold them.  Bennett denied to Reynolds knowing anything about them and thus prolonged Reynolds’ discovery about the sale for some three months.  Reynolds sued Bennett, who then counter-sued claiming Reynolds had made everything up. 

The Court found that Bennett threatened a witness; attempted to bribe another witness; doctored some photos of the stolen cattle at auction; filed suit against a Reynolds ranch hand; and Bennett tried to meddle with Reynold’s registered brand.  All pretty bad stuff. 

But, the Supreme Court found these bad acts occurred during the litigation, not as part of the theft,  So, in a technical ruling, the court found these bad acts essentially did not count for purposes of punitive damages.  There were other ways of dealing with reprehensible litigation tactics, said the court. 

In the Army, we have this marching song which we most often used to sing when we did physical training.  On those long runs, someone would strike up, "We’re at it again, on the road….," we would wail.  Well, the Texas Supremes are at it again….