Justice for all DanielBlumberg Special to the Star-Telegram
So it's come to this. Authorities launch a formal investigation against a Philadelphia judge after a litigant complains that his adjusting a ceiling vent distracted the jury, denying her a fair trial. A lawyer who accepts a smaller settlement than his clients wanted files a complaint against local judge R. Brent Keis for recommending that they accept the settlement rather than going to trial, spinning a metaphorical roulette wheel and "betting on black."
Worse, judges can't fight back. In fact, according to the Code of Judicial Conduct, they're not even supposed to comment.
Texas judges run for office, sure. But the rules that govern their public statements are amazingly strict because anything that judges might say or do could hint at their position on an issue that might one day come before them.
So it is particularly disturbing that our confrontational society has now progressed to a point where it's open season on even those to whom we entrust the solemn responsibility of administering justice.
Here are the facts in Keis' case, as outlined in a complaint filed against him with the Texas Judicial Conduct Commission and his response to that complaint:
Nuru Witherspoon, a black attorney, appeared before him on behalf of a couple seeking money for injuries sustained in an auto accident. The judge was friendly with the lawyer, asking about his name and, learning that it was African, noting that African-Americans are prized for their athletic prowess.
His Honor also observed that Tarrant County juries often find against those who seek damages in personal injury and property damage cases. The judge commented that even when local jurors find for such claimants, they frequently disappoint them with smaller awards than those they seek. Accordingly, observed the judge, the settlement offer that the defendant's insurer had made was reasonable.
Keis did not mention that, as court records show, Witherspoon had submitted doctors' affidavits regarding his clients' injuries well after the deadline imposed by Texas law. Rather than embarrassing a lawyer in front of his clients, Keis encouraged acceptance of the settlement offered.
I've been a lawyer in Tarrant County for 22 years, and I think that the alternative almost certainly would have been the exclusion of these affidavits from evidence, and a defense verdict. Witherspoon's clients would have gotten nothing and, given his error, might well have sued him for legal malpractice.
Instead, the claimants wisely chose to accept both Keis' recommendation and the settlement offered, forgoing the gamble of a jury trial in favor of the sure thing of a settlement. The judicial conduct commission's records show they signed releases, accepted the insurer's check and walked away. Case closed.
Or was it? The settlement check had barely cleared the bank when Witherspoon filed a complaint with the commission. Keis' comments, he alleged, had inappropriately brought race into the matter. Accordingly, he complained, it had become impossible for his clients to get a fair trial, leaving them with little choice but to accept the settlement offered.
Many lawyers and judges speak of jury trials as gamblers discuss wagers. "Betting on black" and "betting on red" are common phrases, referring to roulette, not race. Yet Witherspoon chose to play the race card, arguing in his complaint and in the interviews he granted reporters that Keis' remarks related to his ethnicity. Keis, unlike the lawyer, could say next to nothing.
I've litigated cases in Keis' court many times. He has sometimes sided with black lawyers' arguments against my own. Yet I have always felt I got a fair shake in his court.
And I have watched with amusement as he warned inexperienced lawyers of what was obviously coming and gave them an opportunity to act before it was too late. His Honor has no obligation to issue such warnings. He does so out of kindness.
It's also a practical measure. Tarrant County sees more cases filed every month than could be tried in a year. Like most judges, Keis is able to keep the period between the filing and trial of lawsuits reasonable by informally mediating cases and asking lawyers and litigants to assess their chances realistically. In this way, judges encourage rational settlements.
As taxpayers, we should be grateful to Keis and the other jurists who keep our system functioning. Without their careful prodding, we would have to elect and pay for many times the number of judges we have now, build additional courtrooms and pay the salaries of many more court personnel. Their efforts also hasten justice.
Judges who accept bribes, favor lawyers or litigants of one race or act inappropriately should be shown the door. However, after my two decades litigating civil cases in Tarrant County, I'm confident that Keis has done none of these things in his 18 years on the bench.
The judicial conduct commission should not merely find him blameless. They should congratulate him on a job well done. So should we. DanielBlumberg, an Arlington attorney, is a member of the Star-Telegram Community Columnist Panel.
Pol. Ad. Paid for by the Judge Brent Keis Campaign: Jan Moncrief, Treasurer. In Compliance with the Voluntary Limits of the Judicial Campaign Fairness Act.
