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Wednesday, June 15, 2011

California Prop 8 and Beldar's tale of a trial judge who based his ruling on a coin flip

Back when I was a BigLaw lawyer and regularly represented mostly big companies, one of my best and favorite clients was an international investments concern whom I'll call "Big Mall Owner Inc." for purposes of this war story.

Big Mall Owner Inc.'s investments portfolio included lots of commercial real estate, and in particular it was the owner and landlord of a large, multi-level indoor shopping mall built on what were then the outskirts of Houston in the late 1970s. Although the mall was originally a fairly posh location, its surrounding neighborhood had since declined. Big Mall Owner sought my services as its courtroom lawyer on this occasion because the mall's anchor tenant — a large Texas department store chain, which I'll very creatively call Large Department Store Corp. — had recently decided to make that location into its "discount outlet," at which Large Department Store would sell seconds, returns, and remaindered goods at a discount.

This angered the other tenants, and they complained to Big Mall Owner and threatened not to renew their own leases. Big Mall Owner was concerned, too, because every such mall looks to its anchor tenant(s) to set the tone, and draw appropriate crowds, for the entire mall.

But Large Department Store was still paying its rent in full and on time. It insisted that it was doing nothing contrary to the lease, and refused to negotiate any change in its use of this location.

The relevant lease documents, like most such, were the product of arms'-length bargaining, but they still generally favored the property owner. They contained several requirements about the standards that the anchor tenant was to maintain, but those were necessarily somewhat subjective. And in general, it's much, much harder to evict a tenant who's paying its rent, and who has ample resources to fight back over an alleged non-monetary default.

Nevertheless, per its rights in the lease documents, Big Mall Owner's representatives (at my direction) did a snap inspection during which they documented, in writing and on video, several dozen different conditions which we thought amounted to breaches of Large Department Store's obligations under the lease. Not all of those violations had been cured 30 days later, but we weren't quite ready to exercise self-help remedies like a lock-out. (Lockouts done through self-help can lead to big consequential damages awards if they're later found to have been wrongful, and Large Department Store was threatening exactly that sort of lawsuit.) Instead, we filed an eviction lawsuit.


Under the Texas state constitution, claims seeking a court order for the immediate possession of leased premises, whether residential or commercial, can only be filed with the appropriate Justice of the Peace of the precinct in which the property is located. Jurisdiction is both mandatory and exclusive: Even if you have a lawsuit pending in another level of the court system, and no matter whether the monthly rent is $100 or $100,000, an evicting landlord can only get the "writ of possession" it wants from a Justice of the Peace.

Texas' Justice of the Peace Courts (sometimes just called "Justice Courts") do offer jury trials to those who demand them and pay the specified jury fee, but they are not "courts of record" — meaning (among other things) that they quite literally have no court reporter who can make a record of the proceedings therein. They do keep other sorts of records and files, of course. And whether for a writ hearing or for a jury or bench trial, they do swear in witnesses and take testimony and written evidence. But their presiding Justices of the Peace need not even be lawyers.

Upon paying a nominal fee or filing a pauper's affidavit, anyone dissatisfied with the judgment rendered in a Texas Justice Court may appeal to an "of record" court, typically the "County Court" or, in large metropolitan areas like Houston with specialized county courts, to the "County Civil Court-at-Law." And since there's no "record on appeal" from the J.P. Court, one's "appeal" actually consists of a "trial de novo": The judgment of the Justice Court is vacated; everything that happened there is wiped out; and everyone starts over, almost as if the case had just been filed there to begin with.


So on behalf of Big Mall Owner, I duly sued Large Department Store in the appropriate precinct's J.P. Court, and I jumped through the appropriate hoops to try to get the earliest possible hearing date: No on-going business wants to be evicted, and now that we were definitely at war, Big Mall Owner wanted to put the maximum pressure possible on Large Department Store.

On the appointed day and at the appointed time, both sides waited our turn among the folk of Harris County who had business with the court that day. The courtroom was absolutely packed, and not with lawyers but with people representing themselves: There were many other civil evictions on the docket, plus a wide range of other civil cases (mostly "small claims") and misdemeanor criminal cases too. Some of those folks grumbled (very quietly, because there's no court reporter but there is a bailiff with a gun) when the Justice of the Peace announced that on this fine morning, he was going to first hear — out of order and before anything else — the case of Big Mall Owner Inc. vs. Large Department Store Corp.

Probably six or eight lawyers trudged up to the bench, looking a bit sheepish at the professional courtesy we thought we'd just been extended. Adding in the half dozen or so client representatives and witnesses for each side sitting in the front couple of rows, our case collectively involved maybe only 10% of the people in the room, but something like 20% of the frequent bathers, and 90% of those wearing business attire.

"Who's lead counsel for Big Mall Owner?" asked the Justice of the Peace. I identified myself. "Okay then, Mr. Dyer," he said, "Since you represent the plaintiff, that means you get the privilege."

I was puzzled. We were ready to start, but we hadn't begun putting on any evidence yet, so I couldn't imagine what exactly he meant. "The privilege, Your Honor?"

"Yup," he answered. "Whatever I say to you folks today, no matter how I decide or what I decide, the loser is going to appeal and get a trial de novo in county civil court-at-law. Right?" No one disputed him, nor could anyone have.

"And I've got fifty, sixty folks out there waiting for my attention today," he continued, gesturing to the crowd filling the rest of the courtroom. "As interested as we all may be in whether Large Department Store gets to keep operating its discount outlet at Big Mall Owner's mall, I just don't have time for y'all to argue about signage and trade dress and Class A versus Class B." 

"So, Mr. Dyer," he announced, as he produced a quarter-dollar coin from a pants pocket under his robe, "Call it in the air — heads or tails!"

The whole courtroom laughed, except for me and the judge. "Tails," I said very seriously just before he caught the coin and slapped it onto the back of his opposite hand.

"Tails it is," said the J.P., "meaning the Court will enter judgment for Big Mall Owner."

Another laugh, slightly disbelieving this time, from the crowd (including the corporate representatives from both sides). But before the laugh had died down, the J.P. literally began waving a hand, shooing us away from the bench while looking down to see what was next on his docket.

"But Judge!" I gulped. "Since I won the coin toss, doesn't that mean I get my pick of the possible results?"

The J.P. stroked his chin and said, "Yes, I imagine that's right. So?"

"In that case," I responded, "please enter judgment for Large Department Store Corp."

Now the whole courtroom was silent, and my co-counsel and my client's representatives looked at me as if I had gone completely mad. I put on my best "Trust me!" face and kept the J.P.'s eye for the two or three eyeblinks it took for him to suddenly smile and wink at me.

"Done!" he exclaimed. "Now y'all are excused, next case!"

I snagged the sleeve of my lead client representative and tugged him out into the hallway. "I know you think I'm crazy," I told him. "But if we end today as the winner in this court, Large Department Store can let ten more days run off the clock before they even have to file their appeal. We'd much rather lose today, and file our appeal today, and start the clock running on the eviction proceedings in County Civil Court-at-Law today — wouldn't we? After all, it's a trial de novo. All that matters here is that we've gone through this court en route to one where it really matters."


All other things being equal, when on appeal one would usually rather be appellee than appellant. That is, one would usually rather have won in the trial court than have lost. That's especially true when the issue being decided is factually intensive. Appellate courts traditionally and properly give great deference to the decisions of the trial court fact-finder — the jury if there is one, or the trial judge if it's a bench trial — on the weight and credibility of evidence. Appellate courts conduct only a very limited review of the trial court's factual conclusions. But they are obliged to give no deference at all to a trial judge's legal conclusions, and instead they're completely free to substitute their own views as to the law for those of the trial judge.

If there are no disputed facts — if the issues in a lawsuit depend solely on the proper application of legal principles to underlying facts that are undisputed — then for most purposes on appeal, the trial court's decision simply doesn't much matter. 

Such is the context in which I left the following comment on my blogospheric friend Aaron Worthing's guest-post at Patterico's about this ruling from a federal trial court in California, a post entitled Breaking: Motion to Vacate Proposition 8 Verdict Denied (slightly edited for clarity):

With due respect, this is a sideshow, Aaron.

The “trial” was a circus. No material facts were genuinely in issue. The resolution of the case can and will be made at the appellate level based on undisputed and indisputable facts; the fight on appeal should be, and will be, how the law applies to those facts.

Nothing this judge did or didn’t do will end up mattering. It’s a waste of everyone’s time and emotional energy to pay attention to it. The judgment of the district court is either going to be affirmed or reversed — I continue to believe the latter is most likely, but not before the SCOTUS gets it — but nothing this trial judge did or didn’t do will have any bearing on that outcome.


"But Beldar!" you may protest. "What about ... [cue three dramatic, descending organ chords] ... the fate of Big Mall Owner and Large Department Store?"

By the time I'd reached the parking lot, Large Department Store's lead lawyer had caught on and caught up.

Within ten minutes we'd agreed on a nonbinding mediation before a retired state district judge, and by the end of that we'd discovered that Large Department Store was willing to move its discount outlet to a new location at another, slightly less posh shopping mall which was also part of Big Mall Owner's investment portfolio. An acceptable deal was found for everyone in our dispute, much corporate face was saved, rents were paid and profits made, and all the lawyers got paid (including me). Peace was restored to the kingdom.

Posted by Beldar at 12:34 AM in Law (2011), Trial Lawyer War Stories | Permalink


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(1) Michael Ejercito made the following comment | Jun 15, 2011 2:02:13 AM | Permalink

No one claimed that Judge Ware would be the last word on the recusal issue.

But it does give judges up the appellate chain an excuse not to deal with the merits.

(2) ech made the following comment | Jun 15, 2011 10:47:52 AM | Permalink

I was on a jury in Dallas at the JP court of the legendary Jack Richburg. It was for "aggravated truancy". Very informal, very strange compared to "real" court.

(3) Dan S made the following comment | Jun 15, 2011 11:19:57 AM | Permalink


When are you going to compile these lawyer stories into a book? Sign me up for the first copy.

(4) The Drill SGT made the following comment | Jun 15, 2011 1:59:00 PM | Permalink

All other things being equal, when on appeal one would usually rather be appellee than appellant.

* Unless the appeals court has an even number of judges :)

(5) Beldar made the following comment | Jun 15, 2011 3:10:46 PM | Permalink

Drill SGT (#4) is referring, I think, to the fact that when an appellate court is equally divided, by rule the judgment of the court below is "affirmed by an equally divided [appellate] court." (The lower court's ruling essentially becomes a tie-breaker on appeal.) But it's for just this reason, and to avoid just this result, that many appellate courts sit in panels of three. Even if you think it's likely that an even-numbered appellate court will divide equally, though, you'd still rather have been the winner in the court below.

(6) Gregory Koster made the following comment | Jun 15, 2011 4:26:53 PM | Permalink

Dear Mr. Dyer: First, a technical point: I can't find your comment on PATTERICO when I click on the link you provide. All I find is a "Ping" that leads me back to this post. Google search does no better: it leads me back to this post. I would like to read your whole comment.

Second, Dan S. is bang right: these stories need to be formed into a book.

Third: This is a a funny, instructive story, but not one calculated to instill respect for the judiciary. The JP, a sound practical fellow who made the right decision, played it up for comedy. Funny, yes, but on reflection, it doesn't speak well for the judiciary:

There's a good argument to be made that the case should never have gone to the JP at all, meaning:

a) Texas's legal procedure is deficient. There should be a mechanism in place for both sides to say that the JP's decision will be final, or alternatively, if neither side is comfortable with that, a way to certify that "No offense JP, but we want a REAL court, certify us, and let's get on with it." No appearance in court necessary, just a small bit of paperwork. Or:

b) the case should have gone to a mediator in the first place. I would be interested in why this wasn't done. Why did it take such a preposterous "trial" to get to what worked better than a "real" trial did?

So far as Prop 8 is concerned, how does it maintain, let alone increase, the respect the judiciary more and more frenziedly insists on, to have a trial judge conducting:

"...The “trial” was a circus. No material facts were genuinely in issue. The resolution of the case can and will be made at the appellate level based on undisputed and indisputable facts; the fight on appeal should be, and will be, how the law applies to those facts.

Nothing this judge did or didn’t do will end up mattering."

Why then didn't the Prop 8 judge take a coin out of his pocket and tell the plaintiffs to call it? If such a course is good enough for a Texas JP, why not for a federal district judge? The cynical answer is that law and courts are more about game playing and "respect", everything else being a distant speck on the horizon. Shaw is nodding his head again: "All professions are conspiracies against the laity." The trouble with such cynicism is that, followed to its conclusion, we're back to such forms of justice as trial by ordeal, or trial by combat. Both these methods are a lot more fun for spectators, but the participants have a different opinion.

I also can't agree with your notion that what trial judges decide as a matter of law doesn't count. Strictly speaking, you are right, trial judges don't matter. But in the practice of law, it does. If the trial judge has reached the "right" result, i.e. following case law as set down by the appellate courts, and tying it to the facts properly, there's no need for an appeal, because losing counsel will conclude that an appeal will fail. I think that's what courts of appeal generally expect from trial judges, that they'll be on the ball, and diligent, not just going through the motions. In the case of Prop 8, given that federal district judges can't take a coin out and flip for the decision, the trial should have been conducted with the usual standard of diligence. Instead there was a "circus." Nope, no need to respect such shenanigans, nor the folks who insist that they do too work hard for the citizenry. It may not be true that all judges are Maryann Simis, who tried to thwart the Wisconsin Legislature, and had her head handed to her. But is that the way for the laity to bet?

Sincerely yours,
Gregory Koster

(7) Beldar made the following comment | Jun 15, 2011 6:44:33 PM | Permalink

This should go to the comment I left on Aaron's post, Mr. Koster, but I already quoted it in full here. It was, for me, one of my pithier comments.

Large Department Store wouldn't mediate or negotiate until faced with imminent eviction. That we had to make a stop at Justice Court was preordained by the Texas Constitution, which makes no distinction between commercial and residential landlords, nor large and small ones.

I'm not defending the charade that Judge Walker conducted. Pretending that there were disputed facts requiring a bench trial was all part of the plaintiffs' media strategy, and Judge Walker cooperated in it. I don't personally think the recusal motion was well-founded, but in any event, the appropriate remedy for his misjudgment is a direct appeal, not this belated recusal motion.

And thanks, to both you and Dan S, for your kind words on my story-telling. Alas, the book publishers, who I presume have access to my blog on the internet, aren't beating down my door, so I'll continue to spin these old tales as more current public events inspire me to do so.

(8) ech made the following comment | Jun 16, 2011 12:12:46 PM | Permalink

JP court is a vestige of the frontier days, where quick justice in minor matters was more important than formal judicial proceedings in the distant future (when a judge and some lawyers show up in town). JP court is the true "people's court", where small disputes can be resolved quickly and cheaply - evictions, small claims, peace bonds, the lowest class of misdemeanors. A good JP can defuse situations that could escalate to violence if you waited for a trial to come up in the county courts.

The trial I was a juror on was quick and efficient. Took about 60 minutes, most of which was voir dire and the intro by the prosecutor. We spent 10 minutes in deliberations (in the judge's chambers - no jury room) and threw the book at the defendant - a $50 fine. As we waited to be taken back to the jury facility at the courthouse, I heard the judge working out a payment plan with the defendant - $10 every two weeks on her payday.

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