New Harris County Judges Get Mostly High Marks In First 100 Days

April 06, 2009

Judge Hazel B. Jones of the 338th District Court Image: John Council Texas Lawyer	Judge Al Bennett of the 61st District Court.  Image: John Council Texas Lawyer	Judge Randy Roll of the 179th District Court.  Image: John Council Texas Lawyer

On Monday, March 30 at 9 a.m., brand-new Democratic Judge Al Bennett of the 61st District Court in Harris County was ready for a jury trial and raring to go.

A simple car wreck case was set for trial. Minutes after Bennett took the bench, he was faced with his first complication of the day when one of the defendant's lawyers rose and asked for a continuance.

Leonard Mitchell Rubin of G. Patrick Collins & Associates told Bennett that the plaintiff's medical reports he received in discovery incorrectly listed the plaintiff's treatment. He asked for the trial to be reset for 30 days while he finds an expert witness to testify about the mistake's impact on the suit.
Plaintiff's lawyer Rebecca L. Reitz, a partner in Houston's Gay & Reitz, told Bennett that the defense had known about the error for a year — a problem that occurred because of data corruption in the treating chiropractor's computer system, which was subsequently corrected and noted in discovery provided to the defense. She argued that the trial should proceed.

Bennett was in no mood for granting a continuance. There was too much to do on his docket and too little time to do it, he said.

"We are booked for trials from now until September," Bennett told Rubin. "If I move you back 30 days, someone else is losing their position. This is the seventh setting, and we need to get it tried."
After listening to testimony about how the medical record mix-up happened and after he was satisfied the defense would not be prejudiced by going to trial, Bennett decided the show must go on. The judge denied the continuance and sent for a venire panel.

One hundred days after nearly two dozen new Democratic judges — including Bennett — took their benches, the March 30 action in the 61st District Court is exactly what's different about practicing law in Harris County's civil district courts, says veteran plaintiffs lawyer Mike Caddell.

"They're moving cases to trial. That's pretty unusual in Harris County," says Caddell, a partner in Houston's Caddell & Chapman. Caddell had all but given up on trying suits in his own hometown because of the time it took to get a case before a jury. He even went as far as taking the California bar exam two years ago so he could practice in that state. But it's a new day in the Harris County Civil Courthouse, Caddell says.

Much like Dallas County when 41 new Democratic trial judges took the bench in 2007 after a general election sweep, Harris County has 22 new Democratic judges who took the bench on Jan. 1 after a near sweep — only four of the Democratic candidates lost to incumbents in November 2008. [ See "A New Day," Texas Lawyer, April 16, 2007, page 1. ] There are 13 new civil court judges, eight new criminal court judges and one new family court judge in Harris County.

Dallas and Harris counties were once Republican strongholds, in which the GOP had claimed every bench in the county. But demographic changes inside the counties and national political events have weakened the GOP's grip in both counties. Both sweeps, which displaced dozens of experienced judges, have been fodder for renewed calls by politicians for changing the way Texas selects its judges.

But in interviews with 17 Houston litigators — including plaintiffs lawyers, civil-defense lawyers, criminal-defense lawyers and prosecutors who have appeared before the new Harris County judges during their first 100 days on the bench — the reviews are overwhelmingly positive.
"With the new judges, it's like a breath of fresh air at the courthouse. I'm not talking about a pro-plaintiff or pro-defendant posture," Caddell says. "You just have judges who want to move cases to trial."

Even a Republican civil-defense lawyer, who had many GOP friends lose their benches in the general election, is happy with what he has seen so far of their Democratic replacements.
"They are all friendly and patient and surprisingly good," says the lawyer, who requests anonymity. "I didn't want to like them. And I, along with everyone I've talked to, have been very, very surprised."
Travis Sales, a partner in the Houston office of Baker Botts who is president of the Harris County Bar Association, says the new Democratic judges have jumped in and helped with the bar's juror education project and planning for conferences.

"Just like the former judges, they have been enthusiastically participating in bar activities that benefit the citizens of Houston," Sales says.

But one civil-defense lawyer says the positive reviews are to be expected at this point. It'll take more time to get an accurate gauge of the new judges.

"Any time you get new judges on the bench, there is this honeymoon period where they're trying very hard, they are reading everything and they are very diligent about their work. It's not a party thing," says Murray Fogler, a partner in Houston's Beck Redden & Secrest.

The true test is time, he says.

"There's going to be a sorting process where some are going to be outstanding and some are not going to be so outstanding," Fogler says "And it's hard to tell who's going to fall in which category."
Bennett, a former associate with Fulbright & Jaworski who had a solo litigation practice before he was elected in 2008, says he and his fellow Democratic "baby judges" are just keeping their campaign promises.

"We hit the ground running," says Bennett, who has had five jury trials in his first three months on the bench. "That was one thing we promised the bar and promised the voters."
 

Old vs. New

Next door to Bennett, Larry Weiman, judge of the 80th District Court, also was preparing for an auto wreck trial on March 30, going through motions in limine with counsel.

Weiman has wasted no time jumping into his docket. He was the first new Democratic judge to hold a jury trial in a car wreck case — two days after he was sworn in on Jan. 1. So far, Weiman has held seven jury trials in 100 days, one more than his predecessor Lynn Bradshaw-Hull had all of last year, Weiman says.

"It was a perception — and that wasn't everybody — but there was a perception that [there were] some courts like this one where cases weren't going to trial. I believe in the saying that 'justice delayed is justice denied.' I try to keep things going," says Weiman, a former solo litigator.
Bradshaw-Hull did not return a telephone call seeking comment.

But a Harris County Republican judge who was defeated last year says jury trials aren't always the best way to move a docket.

"It's easy to try the one- or two-day car wreck cases. But there are more complicated cases to try in Harris County than that. And they take a lot of work to get them ready," says John Coselli, who lost the 125th District Court to Democrat Kyle Carter. Coselli now sits as a visiting judge. "Everybody's experience is a little bit different. . . . The idea is to get the work done."

Not all of the lawyers who have had trials in front of the new judges are happy. One defense lawyer who requests anonymity recently was on the wrong end of a multimillion-dollar jury verdict in front of a new judge he declines to name.
"The instructions and definitions were, in the defendant's perspective, skewed in such a way where there could only be one result," the lawyer says. "That's the impact that I felt from a new judge. I'm not sure that it was because [the judge] did anything intentionally. I think it's because [the judge] was not very experienced."

But Harris County — new judges or not — is by no means a plaintiffs' paradise, says Jim Perdue Jr., a plaintiffs lawyer and partner in Houston's Perdue & Kidd.

"For anybody who would say that, come stand in front of 48 jurors in Harris County," Perdue says. "It is not a plaintiffs' paradise. It is still hard work getting in front of a jury."

Even when plaintiffs lawyerswin rulings in front of the new judges, they don't win everything they want, says Tom Paterson, a partner in the Houston office of Susman Godfrey. Paterson recently won a plaintiff's summary judgment in front of Carter.

"He trimmed me back on attorney's fees, but he sure gave me what I wanted on summary judgment," Paterson says.

If there's one thing to be said about how the new Democrats and veteran Republican judges are interacting in the shared courthouses, numerous lawyers say, it's that partisanship has been left outside the buildings.

Republicans Randy Wilson, judge of the 157th District Court, and Tracy Christopher, judge of the 295th District Court, held training sessions for all of their new colleagues in December 2008.
"We did a three-day program that was essentially 'here are the things that are going to happen, here are unusual kinds of motions that we do that you probably aren't familiar with . . .,' " Wilson says. "I think for the most part people are being very cordial. We have invited the new judges to ask whatever questions they like, and we respond immediately."

And keeping partisan bickering at bay is best for everyone in the long run, Wilson says.
"Truthfully, in two years, these new judges will be my colleagues or my judges," says Wilson whose term ends in 2010. "And you should always be courteous and friendly."

The Criminal Courthouse

Across the street in the Harris County Criminal Courthouse, eight new Democratic judges — many who are former criminal-defense attorneys — are making their presence known.

"I can already see that it's significantly different," says solo Patrick McCann, because the judges are granting motions to suppress. "They are also granting motions for instructed verdict where the state has failed to prove their case," says McCann, past president of the Houston Criminal Defense Lawyers Association.

One new judge who has granted motions to suppress evidence and granted directed verdicts on several occasions is Democrat Hazel B. Jones, judge of the 338th District Court. Jones is a former criminal-defense lawyer, federal prosecutor and Harris County assistant district attorney. In three months on the bench, Jones has granted two directed verdicts dismissing the prosecution's cases.
"That's pretty rare in Harris County," says Robert Fickman, a Houston criminal-defense solo.
The change, Fickman and several other criminal-defense attorneys say, is that many of the new judges have a different perspective because they didn't come to the bench straight after leaving the DA's office, like some Republican judges do.

"People are listening," Stan Schneider, a criminal-defense lawyer and partner in Houston's Schneider & McKinney, says of the new judges. "And that's the big thing; they're listening."
Jones says she granted one directed verdict after the complaining witness in a case couldn't identify the defendant on the witness stand and another in a case in which prosecutors couldn't link the evidence to a defendant.

"It didn't faze me," Jones says. "I think the prosecutors knew that was the right ruling." Julian Ramirez, a Harris County assistant district attorney who supervises prosecutors in several courts including Jones', agrees with her directed verdict in the witness identification case. He has no problems with any of the three new judges in the courts he supervises. "They are making rulings according to the law, and that's all we can ask for," Ramirez says. The new judges' willingness to grant motions to suppress evidence and to issue directed verdicts has been "an early and strong lesson for the state," McCann says. "And in the end that's good for everybody," McCann says. "The DAs start looking at what they are bringing, and we're able to point out to them that these cases probably won't survive suppression or an instructed verdict. And we're all able to get on and try cases that need to be tried." But there are grumblings among some criminal-defense lawyers.
For example, a criminal-defense lawyer complains about a rule that Randy Roll, judge of the 179th District Court, imposes on attorneys.

"It's silly to make a lawyer approach the bench every time to request a reset," says the lawyer who requests anonymity. Roll says his rule is far from silly; it's an absolute necessity in most circumstances. Roll inherited the largest docket — 1,100 cases — of all of the new Democratic judges. He has moved about 300 cases already, but he couldn't do that if attorneys kept resetting cases with his court coordinator. So he instituted the new policy: Lawyers have to ask him personally if they want a reset.

"Everyone must approach the bench before they reset a case," Roll says, except if a case is fairly new. "The docket was out of control. The old judge is no longer here.

"If you allow them to come in at their own schedule, they'll come in at their own schedule," Roll says of the lawyers. Roll was a criminal-defense solo before taking the bench.The judge Roll replaced, Mike Wilkinson, could not be located for comment. The telephone listing for Wilkinson on the State Bar of Texas' Web site is his old court.

Roll says he has modeled his court procedures, in many ways, after Republican Mike McSpadden, judge of the 209th District Court and one of the criminal courthouse's most senior jurists.
Roll has adopted many of McSpadden's rules, such as the case reset policy, and he has followed McSpadden's lead by handing down misdemeanor sentences in felony cases involving less than 1 gram of cocaine — when appropriate. "I'm following in Judge McSpadden's shoes," Roll says. "I don't want to fill up the jails with first-offense drug cases."

"It's a huge compliment," McSpadden says, noting that many of the new Democratic judges, including Roll, practiced in his court as lawyers before taking the bench. "Several of them have come up and asked about issues when they're on the bench. The main point of our job is gaining experience. There are going to be things that come up you've never seen before. And I had mentors too, which was a huge help."

McSpadden has no complaints about his Democratic brethren. "Although I've lost some good friends in the past election, I've heard nothing but good things about each of the new judges," says McSpadden.

Don Smyth, a Harris County assistant district attorney who supervises prosecutors in Roll's court as well as in four other courts with Democrats on the bench, doesn't have any complaints either.
"I go in that court almost every day. And he is very enthusiastic about his job," Smyth says of Roll. "And when he puts someone on probation, he wants them to know that it's serious. He makes sure they understand what he expects of them. He's one of those guys that can hardly wait to get on the bench every day."

But the job isn't exactly what Roll expected.
"It's not as much fun as I thought it would be," say Roll, who notes that he often wakes up at 5 a.m. worrying about his docket. "It's a satisfying job. It's a rewarding job. But it's not fun."
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Carl E. Whitmarsh
Texan by birth - Democrat by choice!
Houston, Harris County, Texas
CD-18 - SD-15 - HD-138 - Commissioner-4

JP-Constable-1 - City Council-A

"make the most of yourself, For that is all there is of you"
Ralph Waldo Emerson.