Wednesday, October 19, 2005

Did John Podhoretz and I Misoverestimate Harriet Miers?

Podhoretz notices the 8 cases claimed by Miers. But he thinks they were jury trials with 8 separate appellate cases, for a total of 16. Not so. It is 8 total trials to verdict, jury and non-jury combined. But, we already had reviewed the Texas cases and found that there were not even 8 verdicts in the sense that the question asked.

First, what John said today:

Having read through the Miers questionnaire supplied to the Senate Judiciary Committee, I note with shock that in a legal career that lasted more than 25 years, she argued 8 cases before juries: "I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three." That number again: 8. Eight. E-I-G-H-T. Turns out that the number is pretty important in Miers's career, since it's exactly the same number of cases she dealt with at the appellate level as well.

Her entire combined courtroom experience in the course of her long career: 16 cases. Thus does the last prong in the Miers defense -- that she will bring real-world lawyering experience to the bench -- collapse like a house of cards.

Second - our own second thoughts.

Miers is slick, but confusing. Clearly she is puffing her experiences. But, by not being clear, we can be mislead. Indeed, it is clear that she either intends to mislead or is totally incapable of clear thinking and writing.

Here is the question:

d. State the number of cases in courts of record you tried to verdict or judgment (rather than settled), indicating whether you were sole counsel, chief counsel, or associate counsel. For any appellate cases, state whether you made oral arguments, and supply four (4) copies of any briefs that were filed for those cases.

i. What percentage of these trials were:

1. jury;

2. non-jury.

Here is what Miers said:

While it is difficult to approximate these percentages, I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three.

I recall arguing the following appellate cases: Jones v. Bush, 244 F.3d 144 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001); Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex.App.-San Antonio, 1998); Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex.App.-Texarkana 1995); Thanksgiving Tower Partners, et al. v. Anros Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995); Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985); In re Grand Jury Proceedings, Misc. No. 1331, 712 F.2d 973 (5th Cir. 1983); Southwest Securities, Inc. v. Sungard Data Systems, Inc., 2000 WL 1196338 (Tex.App.-Dallas 2000). I may have argued at the appellate level in other cases that I cannot recall and for which I have no records.

What does she really say?

1. Clearly, 8 is total cases tried to verdict rather than settling. Clearly, non-jury and jury are combined. Miers does not specify or respond to the request for percentages. Miers was a math major. She did not do the math. If she did not know the number of cases or the number of jury or non-jury cases, it is impossible to do the math. But, Miers says it is difficult to approximate these percentages. Wow! If there were 2 jury trials out of 8 total trials, 2/8 or 25% are jury and 75% are non-jury. I was not a math major, nor did I take college math. Maybe that is why I did it in my head. I bet you did it in your head too. Why is it difficult? Why does she try to approximate, rather than calculate, but not succeed? Is she ducking the question? Is the answer, for example, 12.5% jury verdicts, counting reversed verdicts and 0% verdicts that were not reversed? Or is it that 8 includes cases without verdicts and the actual number is too low to mention. Maybe zero cases in Texas courts, for example. Would she confuse the answer to avoid division of zero by zero if jury verdicts are zero and total verdicts are zero? But even if there are no Texas cases, there certainly are Federal court case, are there not! Are there not? Surely there are! There must be!

2. Clearly she has been misread as saying she was in 8 jury trials, when it was 8 total trials. But did I also misread her? Miers blends her answer. She says 8 cases verdict. Then she lists 8 cases in appellate courts. Are there 16 cases, as Podhoretz says, or 8 total cases as I thought yesterday? Are the 8 cases she counted the 8 she listed, or did she mention 8 and list 8 others? Or did she mean to say 8 jury trials and not say it? We are forced to guess. She is not clear. She does not write clearly. Is this too hard for her? No, I do not intend to be snarky. That is a real question. She says it is difficult. Is this too hard for her? Really.

3. My current guess about what she meant to say: 8 total cases including the appeals. She was involved to some extent in the trial and appellate phases of 8 cases. Of the three cases tried in Texas courts that I reviewed perviously (See post: Harriet Miers in pathfinding Texas case. Or not.) two were resolved without a trial and the third included a jury trial and verdict that was reversed before the parties got fed up with the lawyers and courts and quit without retrial. I have not yet read the 5 Federal cases. The Jones v. Bush cases seems to have been resolved on a motion, since the plaintiffs lacked standing to claim that Dick Cheney was an inhabitant of Texas. No jury. No trial. Apparently. I suppose I will have to read the silly thing.

The underlying problem is simple. Miers exaggerates. She is not comfortable with the truth about herself, so she embellishes. But this may not be purely a trait in this setting. If she says she is a top trial lawyer who tried tough big cases, but also says the President is the Smartest Man She Ever Met, and was the Best Governor Ever and Laura Bush is the Best Fellow SMU Student and the weather today is the Best Day in History, is it just that she sees the half full glass as 110% full? Does she know she is exaggerating, or does she lack discernment?

Did we misoverestimate Harriet Miers?


Blogger Stunned said...

Here is another thought. She says she was lead counsel in four cases and local or associate counsel in four. Local or associate counsel can do anything from carrying a huge load to almost nothing. Sometimes local counsel just sign papers. Sometimes associate counsel do very mundane stuff. There is lots of room for puffery here.

9:36 AM  
Blogger TheAbsentMindedOne said...


11:37 AM  

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