Bill Brewer. Photo: Photo Mark Graham

The outcome of a $177,000 sanctions fight involving firebrand Texas attorney Bill Brewer may rest on whether Texas Supreme Court justices believe a pretrial telephone survey that Brewer conducted was fair and balanced, as he claims, or untruthful and biased, as opponents allege.

In an oral argument, justices on the Texas Supreme Court peppered attorneys with questions about the circumstances where trial courts can sanction a lawyer for sending out a pretrial survey about a case.

The case, Brewer v. Lennox Hearth Products, involves Brewer Attorneys & Counselors partner Brewer of Dallas and New York, who conducted a pretrial public opinion survey while representing a defendant in a multimillion dollar products liability and wrongful death case. Although he maintains the survey was fair and balanced, his opponents characterize it as a "push poll" that used biased information and tainted the potential jury pool. The trial court issued $177,000 in sanctions against Brewer, and he appealed.

Throughout the 50-minute argument, justices scrutinized both sides' competing claims that it was either a balanced survey, or a biased push poll. Justices also questioned both sides on the elements that were needed to sanction a lawyer: whether a court must find he acted with bad faith, and his conduct substantially interfered with the judicial process.

It was a problem that the trial court that sanctioned Brewer make those two findings, said Vinson & Elkins partner George Kryder III of Dallas, who represented Brewer.

In Brewer's case, the court found that his attitude at a hearing on the motion for sanctions was nonchalant and combative, noted Justice Eva Guzman. She asked Kryder whether the trial court could base the sanction on Brewer's behavior at the hearing, or did it have to find that Brewer acted in bad faith at the time he commissioned the survey.

"You look at the conduct of the lawyer at the time he or she makes a decision," Kryder said.

Guzman asked Kryder how much Brewer's survey interfered with the court's function here, because it turned out there was never a trial and the case was over.

Kryder, agreeing that there was never a jury summoned, was interrupted by Justice Brett Busby. The justice said that if the Supreme Court ruled that a push poll was OK as long as there was never a trial, then attorneys could have as much influence on a jury pool as they wanted, so long as a trial didn't occur.

Kryder noted that he disagrees with his opponents' characterization of the survey as a push poll. He said it was balanced with questions that were beneficial and harmful to Brewer's client.

But Busby replied that both the trial court and an amicus brief in the case had alleged the survey was untruthful and inaccurate. If the evidence supports those claims, then why couldn't it support a bad-faith finding, he asked. Also, hypothetically, if the survey here really were a push poll, then could a court sanction a lawyer for it?

Kryder throughout his argument maintained that Brewer's survey was balanced and didn't count as a push pull, but he added that a sanction for a real push poll would be appropriate.

Ben Taylor of Ted B. Lyon & Associates in Mesquite, who represented appellees Ken and Becky Teel and Ross and Meg Rushing, said the judge who sanctioned Brewer heard days of testimony, reviewed exhibits and deliberated on the sanction for a year. He urged the court to defer to the trial court's fact-finding role, rather than reopening the issue to determine if justices believed it was a balanced survey versus a push poll.

Boyd said that Taylor's brief argued that it was not the right standard to find that an attorney can only face sanctions if there was bad faith conduct. He said, "Can you tell me what you think the correct standard is?"

Taylor cited Supreme Court precedent in In Re Bennett, explaining the standard is, "Conduct that threatens the integrity of the judicial system, and is intolerable."

Amicus attorney Brian Lauten, who argued on behalf of legal organizations that filed an amicus brief on the case, said that the justices should forget the term "push poll" or questions about whether the survey had questions both helpful and harmful to Brewer's client.

"There are lies in this poll," he explained, citing an example question from Brewer's survey that allegedly gave "completely false" information about the quality of insulation work and its role in the fire. "That false disinformation is completely wrong, and it's being given to the venire."

He pleaded with the court to prohibit this type of conduct.

"He wants to keep doing this," Lauten said about Brewer. "This is an incredible threat to the civil justice system."

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