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November 2018 - A Kiss is Just a Kiss, or Remember the Alamo

by Richard W. Millar, Jr.

I love to read cases coming out of Texas. The entertainment value is usually high and the phrase “Don’t Mess with Texas” oft comes to mind.

I remember the first time I saw the Alamo, I was surprised it was so small. It was so much bigger in CinemaScope. For those of us raised in the age of western movies, its legend is larger than life and seeing it in person is an emotional experience.

I have often thought about the Alamo over the years, but never in the context of sanctions. Nor, I suspect, did Jim Bowie, Davey Crockett, or Sam Houston ever think that the place of their last stand would make it into a sanction ruling.

In keeping with bar examination trends toward multiple-choice questions, I offer the following: United States District Judge Fred Biery (a) has a sense of humor, (b) doesn’t like disputatious lawyers, or (c) both of the above. If you went with “(c)” you would be right on target.

In response to a flurry of motions to dismiss or transfer and injunction requests in a “long-running dispute” involving home lenders, appraisals, and trade secrets, Judge Biery set an initial status conference in an order which, if nothing else, is certainly unique.

He started with a quote from Elvis Presley: “Truth is like the sun. You can shut it out for a time, but it ain’t going away.” Then he says that, with the assistance of counsel, the court, by this order, begins its search for the truth. The word “counsel,” however, comes with a qualifying footnote:

Many of whom no doubt have academic credentials of cum laude.

When the chief financial officers of the parties receive the bills, they may say, “Lordy, how come?”

(Having a Texas accent helps, but I digress.)

His order requires the lawyers to “make time for earspace, i.e., talking and listening as opposed to texting and e-mailing,” and to avoid “Rambo tactics and other forms of elementary-school behavior.”

Conceding on the one hand that he expects “vigorous advocacy,” and that he does not expect that the lawyers will “hold hands and sing Kumbaya,” he warns that “unprofessional conduct or acerbic shrillness in . . . pleadings” are likely to provoke sanctions. He lists three possibilities.

The first possibility is the revocation of pro hac vice privileges, citing a case in which such sanctions were imposed.

The second was “sitting in timeout in the rotunda of the courthouse,” again citing a case in which that was imposed.

The third, which is my personal favorite, and which accounts for the title of this column, was previously threatened in another case but the misconduct stopped: “opposing counsel kissing each other on the lips in front of the Alamo with cameras present.”

In replying to the suggestion of one of the parties that a special master be appointed, the court offered to appoint on local counsel, “a friend of the court or, in South Texas parlance, a ‘curious amigo.’”

In an attempt to put the dispute at hand in perspective, the court attached the History of Earth in 24-hour Clock, reducing this litigation to “a nanosecond blink of an eye.”

Harking back to a more amicable past, the court noted that the San Antonio legal community of trial lawyers used to be about 300 lawyers who knew each other professionally and socially, and whose handshake agreements were kept, rendering multiple court orders unnecessary. But now, “for reasons known only to the parties who pay the bills, the more recent phenomenon is for equally capable counsel to immigrate into Texas,” which prompted another local lawyer to be fond of saying, “Texans, you are guarding the wrong river.”

He concluded the order by requiring the “businesspeople,” several of whom he named, to be present at the scheduled status conference.

Looking back at some of our colorful judicial ancestors, we should be thankful that the Alamo is not in Orange County.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.