Pre-trial surveys are a tactic used by attorneys sometimes to gauge public awareness of an issue or to get a read on a community. These types of pre-trial activities can draw heavy scrutiny from the court and opposing counsel as they may believe that the attorney conducting the survey is attempting to sway public opinion on the matter. Surveys like these must be neutral and used for informative purposes. Texas attorney, William A. Brewer III, was sanctioned for use of a “push poll,” in a recent appellate decision, Brewer v. Lennox Hearth Products LLC et al., No. 07-16-00121-CV.
Brewer represented Titeflex Corporation in a products liability/wrongful death cause of action where an explosion and fire allegedly caused by Titeflex’s product caused the death of Brennen Teel. Following the explosion in Lubbock, Texas, Brewer developed and personally approved survey questions that were to be disseminated among the local community in an attempt to gauge attitudes and opinions among Lubbock homeowners. Brewer then partnered with Survey Sampling International, LLC, in order to phone randomly selected numbers in the area. The call selection was random, as well as the order in which the questions were asked.
After the surveys were completed, Brewer filed ethics complaints against city officials who would be testifying witnesses. Opposing council sought sanctions against Brewer, alleging that the survey was designed to intimidate witnesses, contaminate the jury pool, and delay the trial date. This motion alleged that SSI had contacted third parties with the survey in an attempt to sway their opinions, and the motion further alleged that Brewer denied knowledge of the surveys when questioned about them. On January 22, 2016, the trial court sanctioned Brewer, individually, ordering him to pay expenses totaling $133,415.27, plus contingent fees and expenses totaling $43,590.00. The court also ordered Brewer to complete ten hours of ethics CLE.
Brewer appealed the sanctions, alleging that the trial court abused its discretion. Brewer maintained, among other allegations, that a survey poll is not a bad faith abuse of the judicial process; a bad faith finding cannot be based on mere gross negligence; and the court erred in concluding, as a matter of fact, that he acted in bad faith.
The appellate court found that the trial court did not abuse its discretion and affirmed the trial court’s sanctions. While noting that courts have a wide degree of freedom to impose sanctions, the court also recognized a two-part analysis courts should use to determine the validity of sanction orders: “(1) there is a direct relationship between the offensive conduct and the sanction imposed and (2) the sanction imposed is reasonable and not excessive.” Here, the trial court examined all aspects surrounding the use of the survey and determined that its specific “implementation and utilization” was an issue. The court then explained that the trial court’s bad faith reasoning held up and listed the behavior that contributed to the decision. This included behavior such as, having a nonchalant and uncaring demeanor; being evasive when answering questions; and disrespecting the judicial system.
Brewer argued that his actions were fine because the voir dire process would eliminate any bias that his actions may have caused. However, the court explains that this line of reasoning would mean that “it would be permissible to improperly influence a jury panel so long as we have a competent set of attorneys and a diligent trial judge willing to parse through the venire and eliminate any potential bias injected into the jury by that improper influence.” Finally, the court concluded that the sanctions were reasonable because the survey was determined to be similar to a “push poll” that attempted to sway public opinion and Brewer’s conduct reflected negatively upon the integrity of the judicial system.
Brewer’s actions give fair warning to other attorneys about professional conduct. Pre-trial surveys or polls should be used carefully. Have several sets of eyes evaluate these questionnaires before sending them out into the world. Try to objectively evaluate the neutrality of the survey or poll and scrutinize it from the judge’s point-of-view. Although there are some guidelines for sanctions, judges have wide latitude when assessing sanctions. Judges and attorneys must protect the integrity of the judicial system so in summary, be courteous and respect the judicial process.
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