Today TCJL filed amicus briefs asking the Texas Supreme Court to rehear a pair cases involving attorney conduct.
In the first case, William A. Brewer III v. Lennox Hearth Products, LLC, et al. (No. 18-0426), a Lubbock law firm, in anticipation of trial, conducted a community-wide push poll with misleading and potentially inflammatory information about the defendant. The survey failed to screen out potential jurors and others involved in the litigation, nor was the defendant notified of the survey. When the defendant discovered the existence of the poll, it asked the trial court for sanctions against the law firm for deliberately tampering with the jury pool. The court awarded sanctions, and the Amarillo Court of Appeals affirmed. SCOTX accepted review and reversed, holding that because there was no evidence of bad faith on the part of the law firm, the trial court exceeded its inherent powers to issue sanctions. TCJL’s brief urges the court to reconsider its decision and either reverse course or provide a more objective bright-line rule for when push polling may be used to talk to a potential jury pool. From a policy perspective, the decision will almost certainly normalize this form of jury manipulation. We can also expect both sides in a lawsuit of significant value to conduct their own surveys, if only to try to neutralize the effect of the one that goes first. Regardless of which party engages in this conduct, the core issue is that the contamination of the venire undermines a person’s constitutional right to a fair and impartial trial by jury. Other amici in the case include the Texas Association of Defense Counsel, Texas Trial Lawyers Association, and the American Board of Trial Advocates, which, for the first time in their respective histories, filed a joint brief requesting rehearing, and numerous individual lawyers, including the Honorable Kent Hance. SCOTX declined to grant motion for rehearing, with Justice Boyd dissenting.
The second case, Scott Van Dyke v. Builders West, Inc. (No. 19-0132), arose from a construction contract dispute. Although there are many issues in the case, TCJL’s brief focuses on the propriety of the fee agreement between Builders West and its counsel. The agreement called for an hourly fee of $350, unless the court ordered fee shifting pursuant to Chapter 38, CPRC, in which case an additional “penalty fee” of $150 per hour would be added to the bill and ultimately paid by Van Dyke. In the event, the trial court did order fee-shifting and Builders West “gifted” the additional $150 to its counsel, enabling him to seek reimbursement from Van Dyke of the $500 rate. The trial court signed off on the deal, and the court of appeals affirmed. SCOTX declined review. TCJL’s brief once again requests the Court to take another look, at least at the attorney’s fee issue. We argue that the attorney’s work is worth either $350 or $500 per hour, but not both at the same time depending on who pays the fee. Moreover, if this practice of charging a penalty fee to be paid by the loser in the lawsuit becomes normalized, the effect will be to introduce a form of punitive damages into contract litigation. No party in good faith litigation should be punished just for losing the lawsuit. SCOTX declined to grant motion for rehearing.
TCJL hopes that the Court will reconsider these cases in the interest of protecting the integrity or the civil justice system. If not, these issues may well warrant legislative attention next spring.