A NOTE FROM A TEXAS LITIGATION LAWYER:
I have been practicing law in the area of litigation for over 36 years and the Founder of the Moster Craft Law Firm which has eight offices across Texas. During this time, I have represented clients in small and large cases in Texas and across the country. Clients are often baffled by the litigation and court process in Texas and rightly so. Although you can have an excellent legal claim, you might lose the case before you even start by variables which are often hidden or unknown. That’s what this series is about. It’s an attempt to provide an unorthodox view of the court system and offer tips on avoiding those factors which could destroy your chances of winning even in a great case. Read on!
“Home Cooking” has nothing to do with the local cuisine! This phrase is ubiquitous among lawyers but almost unknown to the general public and particularly clients as it is kept under wraps. Here’s my unorthodox definition:
“Home Cooking” – Refers to close knit and potentially collusive relationships between lawyers and members of the judiciary which could give an unfair advantage to insiders operating within a particular community.
Now, that doesn’t sound good for a reason. As a law student, I was led to believe that you win or lose a case best on the merits and strength of your legal arguments. This is mostly correct, but not always – and therein lies the rub!
In my legal experience as a Texas litigation attorney in other jurisdictions, I learned the hard way all about “Home Cooking”. It typically occurs in smaller jurisdictions, although I have seen it arise in larger cities particularly on the East Coast and Midwest. It is not a phenomenon strictly limited to small Texas towns and municipalities, although it is definitely present.
The major problem relates to a local bar and judiciary which is not fond of outsiders. As an example, a client might have a valid claim against a business in a small or midsize city but finds it difficult to retain local counsel who will typically state that they have a “conflict”. What this means is that a law firm cannot take a case if they are representing another party with an adverse interest to the potential client. In my experience, this is on rare occasions concocted as they simply do not want to take the case as it will ruffle local feathers. Keep in mind, no attorney is forced to take any case, but this exclusion is indicative of good ole Home Cooking.
The problem may also occur if a local firm with tentacles everywhere takes the case. Although the representation may seem proper on the surface, the client’s claim could easily be compromised by attorneys on both sides who have connections going back to the local high school football team. The case may settle and for a low number not justified by the facts of the case.
A problem that I have seen goes to the issue of prejudiced judges. Now, this is a highly controversial issue, and I will stand on my right of free speech to make any comment I want but will leave out the names. In my experience of over three decades, I have appeared before superb and hard-working judges who take their judicial responsibilities seriously. Conversely, and I can count this on one hand, I have appeared before judges which has demonstrated a mean-spirited and highly prejudicial attitude. Sometimes it is obvious and other times subtle. As to the first category, I once had a judge in Rockville, Maryland literally “throw the book” at me. He has passed on to the great courthouse in the sky, so I am not particularly worried about this disclosure.
The latter category is the most disturbing and toxic of all. I can recall recent cases where I have presented exhibit after exhibit of uncontested evidence only to have the judge rule against me. If I discussed the result with anyone outside the district, their jaw would literally drop, followed by a discernable gasp. No exaggeration! My only conclusion would be that the judge was prejudiced in the matter or possibly just lazy or worse. For the record, I have no evidence that the judge or lawyers acted unethically, but something clearly went wrong which I will never be able to prove. Certainly, a suspicion does not rise to the level of reporting misconduct.
When this happens, my heart literally breaks for the client’s sake as I cannot countenance or explain the result. Even after all of these years, I am still shocked and often want to just quit being a lawyer which would not be a good idea at age 68. I’m too old for a backup profession.
Notwithstanding the above, I have come to the conclusion that the legal system is unreliable and cannot be trusted. But Texas litigation is more than winning a lawsuit. We are taught as law students to believe in the sanctity of the legal process and that justice will be done. This underlies the principle of stare decisis which means that the law is objective and constant and always applied in a non-prejudicial manner regardless of the conflict or locality.
My experience is different. Home Cooking can be present anywhere and clients can lose a case just by being an outsider.
So, what is my recommendation after these shocking revelations?
Bottom line is to be mindful of filing your lawsuit in the best jurisdiction or venue that you can find if you want to win a litigation suit. Your lawyer will advise of procedural rules which give some flexibility as to the town or city where you can file a lawsuit. If possible, stay out of small towns and stay the heck away from Dodge.
If you are required to file your Texas lawsuit in an undesirable location, be careful of the local bar given the prevailing “chummy” relationships between counsel. That is not how to choose a Texas litigation attorney. You might be better off hiring an outside lawyer. Best bet would be to find a litigation law firm that has an office in the town where you need to file but offices in other large cities.
On a more esoteric note, ask your attorney if there is a way to file your lawsuit in Federal versus State Court. In my opinion, you are better off in Federal Courts which adhere to a national standard in the avoidance of Home Cooking. However, I have run into my share of ill-tempered, arrogant, and seemingly biased federal judges.
If you want to hedge your bet, have your lawyer allege Texas state claims along with federal claims. That will give you a tactical advantage of getting your case out of state court if everything goes bad.
Finally, if you suspect a judge is biased it is almost impossible to have the case transferred to another court given the strict rules on recusal. I have never seen a recusal objection sustained.
Sorry to say that “Home Cooking” will give you an exceedingly bad taste in your mouth and a potentially horrible litigation result.