Thursday, September 23, 2004

Sometimes you win even when it looks like a loss.

Yes, sometimes what looks like a loss is really a win. Case in point, In re Fire Insurance Exchange, in the Beaumont Court of Appeals. The court's opinion is hardly a model of clarity, but what is clear is that the bad guys (Farmers a/k/a Fire Insurance Exchange) lost again on the their challange to the protective order, which was the main issue. And the stuff that they appear to have won, they will ultimately lose.


Win some....

Although the Supreme Cort of Texas seems intent on doing me wrong every chance it gets, there are other courts. And one of those courts is the very conservative Houston [14th] Court of Appeals. And the case I have in mind is In re: Union Carbide.

Perhaps a little background is in order.

In the last round of "tort reform," the Texas Legislature enacted a state multidistrict Litigation (MDL) provision. In theory, MDL provides a means of streamlining mass tort litigation. Rather than repeat the same pretrial proceedings over and over, all cases are transferred to one court where al the pretrial stuff (discovery ad so forth) is coordinated and disposed of expeditiously, and then the case is sent back or trial to the court in which it was filed. In practice, MDL is a judicial oubliette--it's a place where cases are sent to be forgotten. Needless to say, corporate wrongdoers love it.

Which brings us to In re: Union Carbide.

The first thing Texas courts did when they got MDL was transfer all new asbestos cases to the MDL court. Nevermind the fact that Texas courts had already developed procedures to deal with asbestos cases and there was really no need for a change.

But that's neither her nor there. Once things started getting transferred to the MDL court, the Defendants tried to get what they call an "unimpaired docket" established, the purpose of which is to deprive people who cannot demonstrate some arbitrary level of impairment their right to their day in court.

Imagine, if you will, an Olympic athelete. Someone who can do all kinds of stuff that you and I could never do. Now imagine that you cut back his abilities so that he's only a bit less capable than we are. That's what "unimpaired" means in this context. It has nothing to do with what's lost--it only looks at how far below average a person has to be pushed before they're willing to conceed that there's an "injury."

Anyway, the Defendants filed their motion to create an unimpaired docket, and the MDL court indicated a willingness to do so in theory, but said it wouldn't becase the judge thought it would violate the Texas Constitution.

So the Defendants filed a mandamus petition in the Court of Appeals. (In this context, a mandamus proceeding is where a party in litigation tries to get a higher court to order a lower court to do something.) They all argued that the MDL court was wrong, that it wasn't unconstitutional, and so forth. And the lawyers for the Plaintiffs generally argued that it was indeed unconstitutional. And that's what I was going to do too.

But I'm lazy and my eye hurt. So I talked to the lawyer for some of the other plaintiffs, and he said he was covering those issues in his brief. Which left me free to argue whatever I wanted to argue.

So I said none of that stuff matters--the only real issue is whether the requirements for mandamus were met (i.e., "clear abuse of discretion"), and they clearly weren't in this case. It was a very short brief. In fact, I was told by one of the guys who did the hard work to respond to the arguements in the Defendants' briefs (and a damn good lawyer) that it was a "perfect" brief. I was enormously pleased with myself.

I'll give you one guess on the court's reasons for denying the mandamus petition.


And behold, I saw a pale horse....

And behold, I saw a Pale Horse, and the name of him that sat on it was Hecht. And Hell followed with him.

Those in the know will recognize that something's up in the Supreme Court of Texas. In this case, it's an absolutely atrocious, and damn near incohrernt opinion by Nathan Hecht in Humble Sand and Gravel v. Gomez, yet another case on which I did all the breifing for the Good Guys. Unfortuneately, I'm beginning to feel a bit like Job. At least in the Supreme Court. Maybe one of these days I'll write down my analysis of the opinion. Right now, I think that my language might be so intemperate that it could get even an off-duty lawyer in trouble. So I'll hold my tongue for now.

Justice O'Neill, joined by Justice Scheinder wrote a cogent and coherent dissenting opinion that pretty well lays out what is wrong with the majority opinion. Justice Schneider, who has since resigned from the court to become a United States District Judge for the Eastern District of Texas, wisely joined Justice o'Neill in her dissenting opinion. While Bush was Governor of Texas, I thought his judicial appointees were one of his strong points. I haven't gotten the same impresion of his appointees (or attempted appointees) as President. His appointment of Justice Schneider is a hopeful sign.

But it leaves the Supreme Court with one Justice, six Adjusters, and two empty seats.

God save this Court and these United States.

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Thursday, September 16, 2004

As the sun sets on the AWB...

For months I had heard from gun control groups that if the sun were allowed to set on the "assault weapons" ban, the streets would be flooded with Uzis and AK47s. I was really looking foreward to this. I was hoping to pick up a few. Imagine my disappointment when Monday morning rolled around and there was not an Uzi or an AK or an AR in sight. Not even a lousey Tec-9. The streets were utterly devoid of firearms of any kind. It was just like any other day. I feel cheated. Damn you, Sarah Brady, you promised!

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Wednesday, September 08, 2004

Another impression, not review--Firefly.

"Firefly-The Complete Series" is one of those things that I bought sight unseen based on Amazon reviews. Only problem is that I think that, with the help of a couple bottles of Yellow Tail Shiraz (four plastic corks on my $5 wine scale), I had it confused with Farscape--another series that I never saw. As it happens, it was a happy accident. I have now watched 12 of 14 episodes, and I think it's just smashing. Too bad it got cancelled after less than a full season. This is really good stuff. At least that's what I think people who liked Babylon 5 and/or DS9 would think.

It's basically a post Civil War western set in space. The Union (or in this case, the Alliance) has won the war, and the disaffected losers have headed to the frontiers to make a life for themselves as Wild West outlaws. (I don't know why, but i really identify with disaffected losers. (Insert appropriate emoticon here.))Some people would no doubt find this annoying. I didn't. It's certainly no dumber that what passes for "science" on the various Star Trek series, and I willingly suspended disbelief because it had good characters, good acting, and really good writing.

It's worth the thirty-five bucks. Check it out.