October 12, 2005
LAW: Not A Good Sign
From OpinionJournal's Political Diary, John Fund reports:
The portrait of Harriet Miers emerging from interviews with her friends and colleagues in Texas is largely a consistent one. She is universally regarded as bright, hard-working and remarkably gracious. But she also clearly has a steep learning curve when it comes to serving on the Supreme Court.
Bruce Packard worked with Ms. Miers as a partner at the Dallas firm of Locke Liddell & Sapp for a dozen years from 1985 to 1997. He calls Ms. Miers is a "very good moral person," but says her real skills at the firm were networking and climbing the rungs of the local and state bar association hierarchy. She rarely tried cases and most of her work for corporations was to serve as the local counsel for out-of-state companies that needed someone familiar with local Dallas judges.
(Emphasis added). Hopefully, we'll get a fuller picture of what Miers' record in private practice really was. If I can be convinced that Miers was a genuinely outstanding commercial litigator, skilled in evaluating and presenting legal arguments and learned in the law governing her areas of practice, I can at least consider supporting her for the Court. That case remains unmade.
UPDATE: In Wednesday's Political Diary, Fund says again that "Ms. Miers has real-world experience serving as local counsel for such corporate clients as Microsoft and the Walt Disney Company." For those of you unfamiliar with the concept, if, say, a New York law firm wants to represent Microsoft in a Texas court, and the lawyers representing the company aren't admitted to the Texas bar, Microsoft still needs to hire lawyers who are members of the Texas bar - "local counsel" - to appear with them in court, even if the Texas lawyers do little besides greet the judge, sign papers drafted in New York, and receive service of court papers (this is not limited to Texas - nearly all states have such requirements, and in fact, one subject Miers has written on extensively and substantively is multi-jurisdictional law practice). On the other hand, (1) some non-lawyers might use the term to refer to Microsoft's regular lawyers in Texas, and (2) local counsel sometimes has a much more active role, including handling arguments and trying the case with just some background assistance from out of town lawyers.
To me, the question of what Miers' role was in cases where she appeared on the pleadings on behalf of Microsoft and Disney is hugely important. Beldar's review of published opinions in cases where Miers was named as counsel places very heavy emphasis on her representation of Microsoft and Disney to show that she had a top-flight commercial practice involving her in complex questions of law. I have asked whether those cases were typical of her practice. But if it turns out that even on those cases she was largely just signing papers drafted by out-of-state lawyers, that would severely undercut Beldar's case for Miers having a distinguished record litigating complex and sophisticated legal issues.
SECOND UPDATE: Finally, some details on Miers' cases - this account indicates that she was, in fact, lead counsel for Microsoft (via Bashman):
Most of the cases the Supreme Court nominee handled were settled before they went to trial, her former law partners say. Those colleagues and lawyers who opposed her remember Miers for her preparation and attention to detail.
Her biggest case may have been her successful fight to spare Microsoft from class-action lawsuits over an alleged defect in one of its computer operating systems.
Plaintiff lawyers persuaded a state district court judge in 1995 and an appeals court to certify lawsuits against the company as a class-action matter. Up to 11 million consumers around the country could have joined in one massive lawsuit against the software giant, according to lawyer Jerry Clements, who worked under Miers on the case.
Miers went back to the original judge and argued that recent court decisions meant that complaints against Microsoft didn't merit class-action status. The judge reversed herself. Anyone claiming damage would have to sue Microsoft on his own - a costly undertaking. Later, the case was dismissed.
"That was the beginning of a pretty significant trend in Texas that moved away from the state being a good place for class actions," Clements said.
Miers lost cases, too. In 1988, she defended a firm led by a prominent Hong Kong investor who had backed out of a deal to invest $5 million to buy a Dallas office building. One of the other investors, Bear Stearns Cos., tried to cash the Hong Kong firm's letter of credit.
A federal judge sided with Bear Stearns, but Miers persuaded the 5th U.S. Circuit Court of Appeals to give her client another chance at a trial, according to Lewis LeClair, one of Bear Stearns' lawyers.
"I really thought I had the case won until she showed up, and then I found myself playing defense for a long time," LeClair said. Although Bear Stearns won in the end, "she did an excellent job with a very difficult case," he said.
Joe B. Harrison, an attorney who opposed her in a 1998 case, remembers Miers as "well-prepared and competent and ethical and responsible."
During the 2000 presidential campaign, Miers defended Bush and running mate Dick Cheney against a lawsuit claiming that Texas representatives to the Electoral College couldn't vote for the Republican ticket.
The Constitution forbids electors from voting for a president and a vice president if all are from the same state. Cheney had lived in Dallas for five years and returned to Wyoming only after joining the ticket. Miers argued that the Texas residents who brought the lawsuit didn't have standing to sue.
The appeals judges hearing the case later decided that Cheney was indeed a Wyoming resident. The opposing lawyer, Charles W. McGarry, said Miers focused on a narrow procedural issue but did a competent job.
"She was the go-to lawyer for Republicans," McGarry said.
A lot of mild praise there - "competent," "well-prepared." I don't think we'll hear the kind of adjectives we heard from observers of John Roberts as an advocate, but we shall see. Overall, a small data point in Miers' favor.
I don't know all of the details of the cases that have generated the opinions on Westlaw, so I can't answer with certainty for even them, much less for other cases during her career that for one reason or another have never resulted in a written opinion that Westlaw would have picked up.
However, both the Microsoft class action and the Disney fraud case that I discussed were pending in fairly remote rural counties. The Disney fraud case, for example, was in Laredo, which is some 430 miles from Ms. Miers' offices in Dallas; the Microsoft class action case, if I recall correctly, was in Marshall, some 150 miles from Dallas. Both Laredo and Marshall are large enough towns that each has several law firms who regularly are hired as local counsel, assisting either out-of-town or out-of-state counsel (and sometimes both). The notion that Ms. Miers personally, or her law firm, would have particular "stroke" with the local judges and jurors in Laredo or Marshall is laughable. So there would have been no reason for Disney or Microsoft to hire Ms. Miers' firm at all if they intended for the substantive work on the case to be done by out-of-state counsel from, say, New York or California; were that the plan, it would have made more sense for them to hire "mail drop" counsel directly in Laredo or Marshall.
I can't speak for Ms. Miers' or her firm's policies, but during my own big-firm days, the firms I was at, which were competitors of and roughly comparable to hers, did their best to avoid being "rocking-chair" counsel -- that is, in between an out-of-state firm that was doing the heavy lifting and a purely local firm in some remote locale whose lawyers were well connected with the local judges and jurors. There was just no upside in it for us; we would basically have been whoring out our firm's name, with no control or even influence over the case, and not much revenue coming in to justify the accompanying risks. If the client wasn't looking for our substantive involvement, we'd typically limit our participation to hooking up the out-of-state lawyers who were going to run the show with local small-town counsel with whom they could deal directly as their "mail drop."
By sharp contrast, it was absolutely routine in my own practice -- and I suspect in Ms. Miers' -- for my firm in Houston to be hired to carry the ball, in which event we'd either work directly with the client or, less commonly, through the client's regular outside, out-of-state counsel who might be monitoring our efforts. There's a good reason that I'm admitted to practice in the U.S. District Courts for the Southern, Northern, Eastern, and Western Districts of Texas -- I've had major cases in each of them, and also in Texas state courts scattered throughout the state, from top to bottom and east to west. As the two largest cities in a very, very large state, Houston and Dallas have been where large out-of-state companies have typically first looked for Texas counsel -- regardless of where in Texas their cases were pending -- for a century and a half. And it is the rare (and very stupid) client who can't grasp that the top Texas firms can provide it with legal services every bit as skilled as the top firms in New York, Chicago, Los Angeles, Washington, etc.
On several occasions I've worked as Texas counsel on cases that had interstate complications -- for example, in a massive insurance antitrust lawsuit in which more than 30 state attorneys general had joined in a consolidated case in federal court in San Francisco, but the Texas AG insisted on proceeding separately in state court in Austin (having successfully defeated our attempts to remove to federal court and transfer). Products liability cases -- e.g., defending a car manufacturer on exploding gas tank charges that were being made simultaneously in several different states at once -- also often caused such multi-state complications. In cases of that sort, we obviously needed to coordinate what we were doing in Texas with our client's "national coordinating counsel"; but sometimes we were the national coordinating counsel, and in any event, what we were doing was very, very substantive. These kinds of cases actually presented an exceptional professional challenge, adding layers of practical (and sometimes quasi-political) complexity to what was already difficult work.
For essentially the same reasons that it's so rarely happened in my own practice, I would be very surprised if Ms. Miers' firm very often just lent its or her name to someone else's work.
Beldar - You have, once again, convinced me that you are a top-flight "law" guy, and that Harriet Miers may be as well. But we're still in the realm of speculation and inference here. (And I should add that I have worked on cases, not in Texas but in other states, where we worked with big-firm local counsel from a big city in another state, while appearing in court elsewhere). Maybe Fund is off base here, but what we need is hard facts.
With John Roberts, there was no difficulty finding people to testify to him being a brilliant advocate on issues of law and provide specific examples of great briefing and argument on his part. Where are the people doing that for Miers? I'd sure like to hear from them.
In his NYT column today, David Brooks not only tees up Ms. Miers but he also whacks her with a Big Bertha driver. If the writing samples he quotes are the most in depth available, then you gotta ask, what was the president thinking? But, I admit, I've been asking that question for 5 years.