Sunday, October 16, 2005

Harriet Miers in pathfinding Texas case. Or not.

The White house says Miss Miers practiced trial and appellate law for 30 years. She handled big cases for big clients, and litigated groundbreaking issues such as whether certification of a class is proper, an issue she litigated on behalf of Microsoft. Big stuff. Hard stuff.

Lists are now available. I reviewed all of the Texas state court cases. All four. Yes, four. Thirty years. Four big hard cases. They are:

1. Microsoft. 914 S.W.2d 602 (Tex.App.-Texarkana 1995) Said to be a real trailblazer case. Not quite. It was an appeal of an interlocutory order that certified a class of plaintiffs suing Microsoft. Texas allows this appeal right away, before trial and before most pretrial activity. Miers represented Microsoft. Microsoft lost (a class was certified) at the trial court, and appealed. The issues were routine class certification issues. (Were the requirements of the rule met? Was there Constitutional Due Process? Was there a Full Faith and Credit violation?) The court of appeals affirmed. Microsoft and Miss Miers lost again. The court of appeals wrote a fairly long opinion which was issued two weeks after submission. That is fast, and suggests that the case was easy. Generally oral argument and submission occur on the same day. There was one unanimous opinion. Miss Miers is the only lawyer listed for Locke, but Max Sandlin, Jr. also represented Microsoft. (For Appellant: Hon. Harriet E. Miers, Locke Purnell Rain Harrell, Dallas, TX. Hon. Max A. Sandlin, Jr., Sandlin & Buckner, Marshall, TX.) Later, Max Sandlin, Jr. was a Democratic member of congress. It is a small world. What will he say about Miss Miers and this hard case that they shared? Locke Liddell's PAC contributed to a campaign of Max Sandlin, as well as to an opponent of Tom Delay. Delay won. Delay pushed through redistricting. Sandlin was defeated. Delay was indicted. It is a small world.
Comments: Was it worth an appeal? Probably, even if the result was almost certain. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A routine dull case for the court of appeals. A claim that it was a big trailblazing case is foolishness. And Miss Miers lost. And her attempts to have it reheard or considered by the Texas Supreme Court failed. Microsoft dismissed by the plaintiffs without prejudice. No verdict or judgment.

(Update: Her questionaire explains: She lost at the trial court, lost at the court of appeals in which she gave the losing oral argument, sought review at the Texas Supreme Court, and while that request was pending, won at the trial court when the trial court judge decided to decertify the class. This was all about the issue of whether the class should be certified. The trial judge could decertify any time. Miers questionaire suggests that she does not understand the issues in the case or that she is spinning them by claiming interplay between state and federal class action laws. Generally the class action rules of Texas are construed the same was as the Federal rules, so Federal cases are authority for state courts. Yet she stresses the interplay. What interplay? This was just a plain vanilla state class action issue. She also claims federal constitutional issues of due process and full faith and credit were involved. Not really.

1. Due process is just a distraction from examining compliance with the rule. Generallt the process required by the rule is what is required. The court is not going to read the constitution, it is going to read the rule. But, in the court of appeals Miers also claimed a due process violation related to the class notice. The court of appeal was not impressed. It said:

As for the adequacy of notice, the trial court has made no ruling on notice. That is a decision that will be made later, and it will be subject to review. This court cannot tell if class notice violates due process because no class notice has been given.

The class certification does not violate constitutional due process or the Full Faith and Credit Clause.

2. Full faith and credit seems to be a total misunderstanding. There was a choice of law issue. Does Texas law cover all members of the class? That does not strike me as a full faith and credit issue.

My reaction to the questionnaire is off the cuff. Maybe I missed it.

Overall: The White House and Miers are spinning. This case is no great accomplishment. Most trial lawyers would not want it to be their signature accomplishment.)

2. Disney. 981 S.W.2d 25 (Tex.App. - San Antonio 1998) Disney was sued. Disney said it could not be sued in Texas. It was not a Texan, and had done nothing to give Texas jurisdiction over it. Disney filed affidavit but the trial court denied their claim. Disney appealed the denial. This was an interlocutory appeal before trial, and before much pretrial activity. The plaintiff failed to offer any proof as required to support jurisdiction. Thus, plaintiff loses. Unanimous. Easy case! Plaintiff failed to make an adequate record. It would be hard for Disney to lose this appeal. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A routine dull case for the court of appeals. ATTORNEYS FOR APPELLANT: Harriet E. Miers, Thomas A. Connop, Thomas F. Loose, Kirsten M. Castaneda, LOCKE, PURNELL, RAIN, HARRELL, P.C., Dallas, TX. Arnulfo Gonzalez, Jr., LAW OFFICES OF ARNULFO GONZALEZ, Laredo, TX. Yes, four locke attorneys, and one local lawyer. One should be plenty.

(Update: Her questionaire claims this as a case in which she litigated constitutional issues. Huh? I quote the first two sentences of the opinion:

This is an accelerated appeal froman interlocutory order denying Disney Enterprises, Inc.'s ("Disney") Rule 120a special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 51.014 (a)(7) (Vernon Supp. 1998). Because we find that Disney is not amenable to suit in Texas, we reverse the trial court's order and order the cause dismissed for lack of personal jurisdiction. of Disney.

Miers was asked the number of cases she tried to verdict or judgment, not settled cases. (Question 15d.) Some, including the Republican National Committee, claimed that Miers said she tried 8 jury cases. ( In private practice she handled hundreds of cases, litigating at least eight jury trials to verdict and handling six appeals. Quoted by Erick at


Disney and Microsoft are among the 8. Deduct them. Now, down to 6. In Microsoft and Disney, there was no jury trial or other trial. Microsoft was dismissed by the plaintiffs without prejudice. No verdict. No judgment. Disney case thrown out of the Texas court because it was the wrong state in which to sue. (Who is in charge of getting the facts right at the White House and RNC?) Miers puffed her answer. The RNC bought the puffery. This is not helping her.


Miers does not mention McClure or Perkins in her questionaire. Why? I have no idea.


3. McClure. 560 S.W.2d 457 (Tex.App. - Beaumont 1977) Dispute arising from a foreclosure. Jury trial. The jury answers conflicted with one another. Trial judge disregarded some jury answers. Miers appeals. Reversed and remanded for new trial. Unanimous. Short opinion. Somewhat messy case. Messed up in trial court. Sent back to do over. Nothing accomplished so far. Try Again. Joe H. Staley, Jr., Harriet E. Miers, Dallas, for appellants. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that some first year lawyers could handle. A mundane case for the court of appeals.

4. Perkins. 545 S.W.2d 494 (Tex.App. - San Antonio 1976) Does a lien relate back? Contractor lien validity and priority. Vague land description. Is it too vague? Jury trial. Multiple parties. I would need to know more to know the players, and how it all works out. Miss Miers is the Dallas lawyer, the third firm listed for the appellee. Two San Antonio firms with lawyers Pepos Dounson and Luther Soules also represented her client. One may have handled the appeal. How difficult was it? Easy for any good experienced appellate lawyer. Easy for any U. S. Supreme Court clerk. A challenge that a few first year lawyers could handle. A mundane case for the court of appeals.

Overall. Four cases in 30 years. Routine cases. Miss Miers was never the only lawyer for her client. All opinions by the intermediate court of appeals. The Supreme Court did not take any of them. None in Dallas or Ft. Worth. Two in San Antonio. One in Texarkana. One in Beaumont. At least a few hundred Texas lawyers had more cases during those years. Maybe a few thousand lawyers did this much or more.

The only thing this record shows is that her Texas appellate court experience was minimal and mundane.

There are also cases in Federal courts, cases in trial courts, and possibly cases with unpublished opinions. Those are saved for another day.


In her questionnaire, another of the 8 cases Miers tried to verdict or judgment (not settled) is Southwest Securities v. SunGard. I have not read it. She describes it. She, representing SunGard won about $50,000 plus $1,550,000 in legal fees. Southwest appealed. Miers and co-counsel argued in the court of appeals. The verdict was reversed in part, everything was sent back to the trial court, and the parties settled for a walk-away judgment. Apparently that means that they had their fill of litigation and quit. No verdict in favor of anyone, or should we say a verdict for no one. I am guessing that the opinion was designated as not for publication. It is 2000 WL 1196338 Tex.App.-Dallas 2000, but has no Southwest Reporter citation)

Overall, this post covers 3 of the 8 cases Miers said were tried to verdict, but 2 were not and 1 was reversed. I also cover 2 cases omitted by Miers. The other 5 of the 8 are Federal cases.)

(Updated again 10/18. Be sure to read this update. We may have misoverestimated.)


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