The U.S. Supreme Court today granted review in an election case that began in Texas, Northwest Austin Municipal Utility District No. 1 v. Mukasey.

The case challenges the continued constitutionality of Section 5 of the Voting Rights Act of 1965. Section 5 is the provision that requires certain political subdivisions to submit every proposed change in their election regulations to the Department of Justice for a review known as “preclearance.” Texas is a covered jurisdiction; every political subdivision within Texas must submit to the process. Because of the extraordinary nature of this requirement, Congress in 1965 gave this provision only a limited lifespan. Since then, Congress has voted to further extend it a number of times. The most recent extension was in 2006. That extension was for another 25 years, putting off this question for another generation.

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Evan Chesler, the managing partner of Cravath, Swaine & Moore, has an article in Forbes with the give-away-the-conclusion title “Kill the Billable Hour”.

He proposes that lawyers and clients agree on a fee for the next few months worth of work, revisiting the agreed price as the case unfolds and everyone has more information about what the litigation will involve.

My reaction, as an appellate lawyer, is that fixed pricing for each stage of a case makes even more sense at the appellate level. In the trial court, the discovery process makes the scope of the case very fluid and unpredictable. Cases tend to grow to the size of their legal teams, especially if one side thinks it can overwhelm the other with paperwork. On appeal, everything is very focused — just a few briefs will decide whether you win or lose, no matter how many dollars or claims are at stake. Those briefs take serious work to prepare (more work than clients may expect, if their experience is with often hastily written trial court motions). But an experienced appellate lawyer can almost always quote a price based on the size of the record, the number of issues, and the stakes.

My preference is to offer clients a fixed price for each phase of the appeal. Yet, once in a while, a client seems to prefer the ongoing suspense of an hourly clock.

I should send them Mr. Chesler’s article.

Via: How Appealing

The Los Angeles Times has this story about a pending California Supreme Court case, Martinez v. Board of Regents of the University of California, that may be of interest in Texas.

The issue involves in-state tuition discounts for public university students. The article notes that ten states, including Texas, offer a discount to in-state residents regardless of citizenship status:

The California Supreme Court case revolves around a 2001 state law, known as AB 540, that permits the tuition breaks. Under the law, illegal immigrant students qualify for in-state rates if they attended a California high school for three years, graduated here and signed an affidavit saying they will apply for permanent residency as soon as they are eligible. The law has remained in effect during the legal challenge.

The plaintiffs argue that the California law violates a federal immigration statute by offering tuition discounts to illegal immigrants on different terms than to U.S. citizens who happen to reside in another state.

Texas has a similar law. And, in fact, a member of the Texas House of Representatives (Rep. Leo Berman of Smith County) has recently requested a Texas AG opinion on whether Texas is also in violation of federal law. (( Like the California law, the Texas statute that permits undocumented immigrants to be classified as residents for tuition purposes was passed in 2001. I haven’t investigated how close the two statutes are in structure. ))

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The Court is officially closed today, tomorrow, and Friday (the 26th). By an email, the Court says that emergency requests should be directed by email to the Clerk of the Court. (Sorry, Blake.) The Court will also be closed next Thursday (January 1st) and Friday.

I expect that the blog will be similarly quiet for the next two weeks, as I spend some time with family and work on some other things.

One unresolved item: The holiday has delayed my promised follow-up post about the important decision last week in Southwestern Bell Telephone Co., L.P. v. Mitchell, No. 05-0171. That post is on its way. The elves are hard at work on it now.

A plaintiff in a fraud lawsuit against Mac Haik Ford placed a six-minute-long excerpt of a video deposition onto YouTube. The video clip included one of Mac Haik’s officers talking about which financing charges were customary and why it had not been fraud to include them in a contract.

I can’t post the YouTube link here (aren’t you disappointed?) because a Texas state county-court-at-law judge has ordered that the clip be taken down.

The judge concluded that, because the video and the deposition had not yet been filed with the court, they were not yet “public records” and thus couldn’t be posted. That seems like a puzzling ruling, although the sentiment is understandable. (( If the same deposition clip were chosen for broadcast on the local news, I can’t imagine that the trial judge would have stopped it. But this highlights how disruptive the new technology is. Anyone who can figure out how to encode their video (and it’s not hard) can “broadcast” to the whole planet at essentially no cost. ))

So, if the plaintiff ever does file the deposition with the court, we may get to see if a videographed deposition can compete with the campaign for free hugs, a three-year-old’s explanation of the plot of Star Wars, the OK Go music video on treadmills, or geography lessons from Miss Teen South Carolina.

Or maybe not. The defendant seems to think that only a whole, unexercepted (and thus longer than mere YouTube mortals are permitted to upload without special permission) video would be acceptable:

“If he chooses to publish [post on YouTube] the entire deposition under the proper circumstances … I wouldn’t have a reasonable objection if the entire deposition was published and it wasn’t altered,” says Robertson, a solo practitioner in Houston.

Funny. I suspect if someone tried to read that deposition whole to the jury, the defendant might find some reason to carve parts of it out as being misleading. Whatever the defendant’s objection to having discovery used this way, whether it’s “misleading” doesn’t seem like quite the right framework.

In this Google-driven world in which all data lives forever, there are strong reasons to hope that discovery materials will start to be classified as private by default until they are incorporated into an actual motion or are introduced as evidence. Perhaps this will be taken up eventually by the Texas Supreme Court’s rules advisory committee.

The Statesman’s legal beat writer reports “Justice fined by ethics commission”

More context on today’s hearing is provided by the Houston Chronicle. The legal fees at the heart of this complaint were incurred as Justice Hecht defended himself from charges that it was improper for him to have publicly endorsed Harriet Myers as a potential U.S. Supreme Court justice. Justice Hecht was ultimately exonerated from those charges, but a discount he received on the legal fees incurred in that defense led to this complaint.

I don’t know enough about these particular facts to comment on how the Ethics Commission’s decision squares with its own rules.

But it’s very difficult to understand how Texas thinks it has a good system for resolving ethical complaints against judges when — if I’m understanding this correctly — the Texas Ethics Commission says that it is improper for law firms to do significant portions of this work pro bono and that, instead, judges are supposed to solicit additional campaign funds to pay full freight legal fees.

This reminds me of the multiple-choice ethics test that law students have to take before being admitted to the bar (the MPRE, Multistate Professional Responsibility Exam).

What advice are law students given about how to pass? “The ‘correct’ answer is usually the second most ethical option.”

An ethics commission asking judges to raise more campaign money to pay legal fees strikes me as a “second most ethical” answer.

Earlier this fall, the Texas Supreme Court heard oral argument in Tanner v. Nationwide Mutual Fire Insurance Co., No. 07-0760 (details on DocketDB).

This case asks if an intentional-acts exclusion in an automotive insurance policy gets the insurer off the hook when its policyholder was in a high-speed chase with police and was unable to stop his car at an intersection, ramming into another vehicle and seriously injuring its occupants, the Tanners. The Tanners say Nationwide should pay; Nationwide says that this sort of accident is not covered because the chain of events began with its policyholder’s intentional decision to break the law.

Over the past week, this case has gotten an increasing amount of press attention. In an article appearing just before Thanksgiving, the Austin American-Statesman offered a good summary including these snippets from oral argument:

“So,” [Justice Scott] Brister said, “if you are escaping the police and you run a stop sign, shouldn’t you ‘ought to know’ that bodily injury would result from that?”

[The Tanner’s lawyer, Don] Cotton: “But your honor, follow that logic. If you are not escaping the police, but you are simply going too fast and you run a stop sign, you ‘ought to know’ that bodily injury is likely as well. And we don’t want to exclude coverage in every case where that happens because, really, we wouldn’t have liability coverage.”

That argument seemed to catch the ear of Chief Justice Wallace Jefferson, who questioned Nationwide’s lawyer to determine how far the insurance company would take the Ohio exclusion.

“If I intentionally run a stop sign and I hit somebody, is there coverage under your analysis?” Jefferson asked.

No, [Nationwide’s lawyer Chris] Heinemeyer replied.

“What if I’ve got a kid in the back seat and I intentionally turn to scold the kid and then run into somebody?” Jefferson continued.

Heinemeyer: “The policies are designed to cover inadvertence and negligence. In that situation, that’s an error of judgment … and that would be covered, I believe.”

Jefferson: “So anytime a driver runs a red light intentionally, there would be no coverage if you hit somebody in the intersection?”

Heinemeyer: “I think if they say, ‘I intentionally ran the red light,’ then there is no coverage.”

“Then,” Jefferson said, “there is a lot of noncoverage out there in Texas.”

From: “Case debates if man’s insurer should pay in wreck”

One saving grace for Texas drivers might be that this particular Nationwide policy was issued in Ohio, which seems to have particularly broad policy language.

Even so, the case sparked an editorial on Monday from the Statesman, which lumped this case together with other recent, high-profile cases in which, the Statesman says, “[t]he Supreme Court has embarrassed Texas with its demonstrable tilt toward insurers and other corporate defendants.”

Meanwhile, Texas Lawyer‘s blog Tex Parte took a more moderated tone:

[T]he Statesman editorial board made the case that the high court rules for the insurance industry far too often. I bet most insurance lawyers would disagree with this assessment. In Frank’s Casing and Lamar Homes — two recent high dollar decisions that are representative of many business/insurance disputes at the court — the justices pretty much told the insurance companies to get stuffed.

That debate won’t get settled anytime soon. And the Tanner case, despite its easy-to-grasp and sympathetic facts, may not be the best vehicle for advancing it. The wrinkle that this insurance policy was issued in Ohio may bring other factors into play, such as whether the Texas court has latitude to apply a definition inconsistent with Ohio law.

But the Tanner case might turn out to be very meaningful for Texas insurers if it prompts action by the Legislature or the Texas Department of Insurance to make sure those hypothetical questions at oral argument don’t become a reality here. (( This footnote is veering toward economics more than law, so stop reading if you don’t want my non-expert opinion. But it seems to me that Nationwide’s argument in the Tanner case destroys the insurance industry’s argument for why states should mandate that every driver buy liability coverage. If that coverage doesn’t protect me from cars that are speeding or changing lanes without signaling, then it probably doesn’t apply to half the cars on I-35.

I recognize that the Court is bound by the policy language here and that Ohio may have permitted its insurers to issue a policy that doesn’t really mean much. But if I were suggesting to Texas policymakers a fair balance between the moral hazards caused by “intentional acts” and the social benefits provided by mandating that all drivers have liability coverage, it might be that a broad intentional acts exclusion could prevent the policyholder from himself collecting but that it does not absolve the insurer from accountability to third parties. After all, in a system with mandated liability coverage, the insurance policy is what makes it legal for the policyholder to even get behind the wheel. The protection the system affords to the public at large shouldn’t be lost, even if just for a few moments, each time that driver changes lanes or makes an illegal right turn on red. ))

The Court is closing down for a long weekend, and so am I. See you Monday!

In the meantime, if you want a little something extra to be thankful for, you can remember that the character featured in this article today from The Onion is not your client: “Ask A Guy Who Knows A Little Bit About Dealing With These Lawyer Types”