By Jess Krochtengel
Law360 (March 27, 2018, 3:58 PM EDT) — A Texas appellate court on Monday upheld $135,000 in sanctions levied against Dallas trial lawyer Bill Brewer for commissioning what a trial judge found was a highly prejudicial “push poll” phone survey intended to sway potential jurors leading up to a trial.
“If the right to a civil jury trial, enshrined in both the Seventh Amendment to the United States Constitution and Article I of the Texas Constitution, is going to signify anything at all, it must denote the right to trial by a fair and impartial jury,” the Seventh Court of Appeals said. “Any conduct that erodes that fundamental core principle erodes public confidence in the entire judicial process. Judges, attorneys and litigants must never condone practices that undermine that princip0le if the right to a jury trial is to remain ‘inviolate.’”
Brewer, the name partner at Brewer, Attorneys & Counselors, represented Titeflex Corp., a corrugated steel pipe manufacturer, against a family’s claims that its shoddy design led to a gas explosion that killed their son, Brennen Teel. Though the case eventually settled, it was slated to go to trial in Lubbock in 2014.
Leading up to jury selection, Lubbock residents started receiving phone calls from pollsters. The pollster contacted parties and witnesses involved with the pending litigation, and the survey database included city managers and court personnel including the judge’s family and staff, according to the trial judge’s order.
The poll was allegedly engineered to influence the opinion or attitude of the person being polled and taint the impartiality of a local jury. The questions allegedly attempted to take blame off Brewer’s client for Teel’s death and suggest that it was more than likely caused by shoddy workmanship or the failure of city inspectors.
A trial judge found Brewer had engaged in abusive, highly prejudicial conduct, committed in bad faith and with the intent to obtain an unfair advantage at the trial, and said the practice of conducting such push polls posed a threat to the integrity of the judicial system.
The appellate court left intact what it said was the trial court’s “distinct conclusion that the survey had been a conscious attempt by the surveying party to influence the jury pool.” And it said a finding of bad faith was justified after the trial court found Brewer had reacted to the sanctions motion and allegations with a “nonchalant and uncaring” demeanor, that Brewer had been evasive in responding to questions about the survey and that his attempt to avoid responsibility for his conduct was “in bad faith, unprofessional and unethical.”
“We have great respect for the Seventh Court of Appeals, but respectfully disagree with the decision,” Timothy T. Pridmore of McWhorter Cobb & Johnson LLP, an attorney for Brewer, said in a statement Tuesday. “The record demonstrates that Mr. Brewer acted in accordance with his legal and ethical obligations. We are closely evaluating our options, but do look forward to continuing to bring the facts into public view.”
Michael J. Collins, a partner at Brewer’s firm, said in a statement the firm takes nothing more seriously than its ethical obligations.
“We have great respect for the trial court and appellate court, but do believe Mr. Brewer and our firm acted appropriately at all times,” Collins said.
In his appeal, Brewer argued conducting a survey or poll to test messages and themes in connection with a pending case was not a bad faith abuse of the judicial process.
He also argued the trial court improperly concluded he had acted in bad faith and said sanctions shouldn’t have been imposed without a finding the survey significantly interfered with the parties’ right to a jury trial. Brewer also argued the sanctions were more severe than necessary.
The court said phone surveys conducted in the trial venue are subject to review by the presiding court in order to determine whether anything was done to compromise the integrity of the jury selection process.
N. Scott Carpenter of Carpenter & Schumacher PC, an attorney for State Farm Lloyds, told Law360 on Tuesday the insurer is “obviously” in agreement with the trial court’s opinion and the appellate court’s affirmation. State Farm was a plaintiff in the Titeflex case representing the interests of a family whose home was damaged in the fire that killed Teel.
“The court’s recognition of the right to an untainted jury trial as inviolate captures the essence of the court’s reasoning and ultimate opinion,” Carpenter said.
An attorney for the Teels, Ted B. Lyon of Ted B. Lyon & Associates PC, said Tuesday the appellate court “nailed it,” both in terms of protecting the right to a trial by jury and in regard to Brewer’s “casual attitude” toward the situation.
“I thought it was an outstanding job,” Lyon said. “This type of attitude, this type of tampering with a jury pool should never be allowed.”
Lyon said he expects Brewer to appeal the ruling but thinks the sanction would be upheld.
Justices Brian Quinn, James T. Campbell and Patrick A. Pirtle sat on the panel for the Seventh Court of Appeals.
Brewer is represented by George M. Kryder, Daniel L. Tobey, Melissa S. James and Stephen S. Gilstrap of Vinson & Elkins LLP and Timothy T. Pridmore, R. Michael McCauley and Jack P. Driskill of McWhorter Cobb & Johnson LLP.
The Teels are represented by Ted B. Lyon, Marquette Wolf and Ben Taylor of Ted B. Lyon & Associates PC. State Farm Lloyds is represented by N. Scott Carpenter and Rebecca Bell-Stanton of Carpenter & Schumacher PC.
The case is Brewer v. Lennox Hearth Products LLC et al., case number 07-16-00121-CV, in the Texas Court of Appeals for the Seventh District.
–Editing by Alyssa Miller.
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