Biography
The following interview on Thursday, August 22, 2002 is with Otis Carroll who started practicing law as early as 1975 in the gulf coast. The interviewer is Lucinda Presley.
LP is Lucinda Presley
OC is Otis Carroll
Transcript
LP: I wanted to get some background information first. Can you tell me about your experience, your training as a lawyer, how long you've been here.
OC: Okay. I was licensed in 1974, graduated from the University of Texas law school.
LP: Ah, very good.
OC: Yea.
LP: Where did you do your undergraduate?
OC: A&M.
LP: Really?
OC: Uh huh.
LP: That's fantastic.
OC: And I started practicing law with a sole practitioner on the Gulf Cost and had a chance to come to the U.S. Attorney's office in Tyler, and I did in July of '75 and I worked... had a three year commitment and I left in July of '78, had a chance to go to a big firm in Houston. I was there from '78 to '81, had a chance back to Tyler and I did and started what essentially is now this firm, and practiced here since '81.
LP: Impressive. I'm glad... you and I were in school, then, about the same time, but I was in Texas.
OC: Well, I was there... my wife was an undergraduate there and, you know, it was pretty exciting times.
LP: Oh. It very much was.
OC: I mean... I was in law school when the march against the Cambodian invasion occurred.
LP: Really.
OC: And Charlie Wright, who was a professor of the federal courts there...
LP: I knew him.
OC: ... and later Nixon's lawyer during Watergate, went down and got a restraining order against the police who were going to block the march.
LP: Really? So did you get to be a part of what was up?
OC: No, but I had a case with him later when I was with the government here, so...
LP: So, you had already known him.
OC: Well, I knew him... I had him in law school and then in 1975, when I came with the government here, I had a case where he was on the other side.
LP: Okay, so tell me the type of practice that you run now. Is it mainly a plaintiff? What type of projects?
OC: Well, it's general trial practice and we've got five lawyers and one lawyer does almost exclusively appellate work, one exclusively bankruptcy, and the other three of us do trial work. And it's primarily commercial, civil litigation, do a lot of oil and gas work, do a lot of patent work. Our district's getting a lot of patent cases. Do a lot of commercial fraud work. I do federal criminal work and that's pretty much it.
LP: That's a lot.
OC: Well, yea.
LP: Do you have one that you're really drawn to, one area that you're really drawn to more than the others?
OC: No, I enjoy the variety.
LP: Okay. Good. Tell me about, too... so, you've worked with the federal courts since you've been back. Is that right?
OC: Well, I worked with them first in '75. I was an assistant U.S. attorney here for three years and then I went to Houston and then I came back.
LP: Okay. But then you've worked with the courts since you came back.
OC: Oh, yea. Right. More of my practice is in federal court than in state court.
LP: Okay. What judges have you seen? I know you know Hannah, and, of course, the ones that are there now. THis project, really, is going to be a history of you guys and the changes in the court politically...
OC: Well, when I came to the U.S. Attorney's Office, the Eastern District of Texas had, let me think, I can't remember if it's three or four judges. Judge Joe Fisher was the Chief Judge, Wayne Justice, Bill Steger, and that Charlie Rush down in Beaumont, and Joe Huffstutler, who's still alive, was the bankruptcy referee. We didn't even have a full time bankruptcy judge. And the U.S. Attorney's Office had maybe six lawyers in Tyler and three lawyers in Beaumont and today, as contrasted, we've got one federal judge in Sherman, Paul Brown. We've got one federal judge in Texarkana, David Folsom. We've got one federal judge in Marshall, T. John Ward. We've got three federal judges in Tyler, Bill Steger, John Hannah, and Leonard Davis. We've got... let's see... Judge Schell, Judge Cobb, and Judge Heartfield in Beaumont, and there are magistrate judges in Sherman, Texarkana, and two in Tyler, and two or three in Beautmont. And we've got a new division of court that wasn't around when I came here in '75, which is Lufkin. So, we've got one division of court which was here in '75 but is no longer active, and that's Paris. So, we still have six divisions of court and the U.S. Attorney's Office has gone from the nine or ten people when I was there in '75 to probably sixty lawyers, and they've got...
LP: Really.
OC: Yea. It's a big operation, and they've got big office here, big office in Beaumont, big office in Sherman, big office in Plano, staffed office in Texarkana, staffed office in Lufkin, and one interesting thing to note from a demographic observation is that the biggest city in the Eastern District of Texas is Plano. Collin County is in the Eastern District of Texas, and some of the biggest cases in the bankruptcy world are filed in the Plano division because the bankruptcy county in Plano is fifteen minutes up Central Expressway from downtown Dallas.
LP: Oh. Okay. Then that makes sense. What about the volume in Tyler?
OC: It's really dropped off, and it's... the hot places when I got here in '75 to file cases were Baeumont, which was a real big plaintiff's venue, and Marshall, which had a lot of railroad cases. And Tyler was the first multi-plaintiff asbestos case that I knew of in the United States, a cased called Yandle vs. PPG, and it involved about four hundred former employees of the Owentown plant, at... which was, I think it was a Pittsburgh Plate Glass plant. And it involved... they sued a lot of the people who were involved... the companies who were involved in the manufacture of asbestos, including the U.S. Government. That's how I got involved. And the government got sued because it had stockpiled asbestos as a strategic commodity under the statue that say it's suppose to stockpile commodities that it may need in time of war, and from time to time, when they got too much, they'd just release it. So, they got sued, the government got sued, along with all these manufacturers. Judge Steger was the judge, and he was able to broker a settlement. And we settled that case for three... I think it was four hundred plaintiffs in it... we settled for $20 million bucks, and we thought that was more money than had ever... would ever be paid in any case in the world. And I remember we had to go to Congress to get our share of the money, the government did.
LP: Really. Oh, my goodness. So it was a ground-breaking case.
OC: Yea. The first asbestos case tried in the United States was tried in the Eastern District of Texas, tried in Beaumont, and it was tried by a lawyer named Ward Stephenson in Orange, who's dead now, and Ward was, as a matter of fact, was a cousin of my wife's, and was... he tried the case on a warning... insufficient warning, and Judge Fisher tried and case, and it went to the Fifth Circuit and it was affirmed, and then that led to just an explosion of asbestos litigation. In fact, there was more asbestos cases on file in our district for years than anywhere else, and a bunch of them got tried. And Judge Parker, who is the Fifth Circuit Judge fixing to retire, and was the trail judge before he went on the Fifth Circuit, tried mightily in Beaumont and in Tyler, to figure out a way to deal with the glut of asbestos cases, and he tried some very innovative things. In fact, one, 1993, he imposed a... what the law calls a "non opt out future class" for Fiberboard, which is a big asbestos manufacturer from the West Coast. And the objective there was to give Fiberboard a chance to settle all of its asbestos liability and it's insurers to settle all of their asbestos liability with a class settlement, and it would take care of everybody, present and future. And it was very controversial, very innovative, and it went to the Supreme Court and got reversed, so, you know, we're still seeing asbestos cases filed, more of them filed in state court now than in federal court.
LP: Why are they filed in state court?
OC: Because there's just a general notion that the Fifth Circuit, which is our appellate circuit, has become very hostile to plaintiff's verdicts, and so the plaintiff's lawyers are not going to federal court, which is different. When I started here in '75, federal court was viewed as a very sympathetic forum for plaintiffs. And especially Sherman, for instance, that was a very... kind of agrarian, kind of rural area thought to be pro-plaintiff, and now, you know, the juries are indistinguishable from north Dallas because of the population changes. In Plano, when I started the U.S. Attorney's office, I had a case involving the Plano hospital, and it was (on) a dirt road, two miles north of the hospital. You know, there were maybe 25,000, 30,000 people in Plano at that time, and not it's gigantic. So, you know, the whole... the whole demographics of the district have changed. Beaumont has become kind of a backwater. It was real hot in the '70's. You know, there was a lot of activity down there. It was a big union town. They had a lot of big plaintiff's verdicts, a lot of big cases filed, and now all that's shifted to TExarkana and Marshall and the hottest litigation now is intellectual property, patent law. We've got more patent cases filed than probably any district around, and all the big firms from the West Coast come out here because they can get a trial quick.
LP: Why? Oh, because they're so backed up in the west?
OC: Well, no. Because in 1985, I guess, or '86, Judge Parker promulgated a plan in our district which was revolutionary. The Congress has passed a law called civil Justice Delay and Reform Act or Reform and Delay Act, and it called upon every - and there are ninety-four federal districts in the United States, four of them in Texas, East, North, South, and West. The Eastern District as forty-three counties from Beaumont to Texarkana to Sherman, and it's kind of an inverted "L". It goes up and over Dallas - goes all the way to Cook County. Munster is the Eastern District, which is kind of in the north central part of Texas. But, anyway, the Congress wanted every district to propose a plan to make litigation more efficient and more affordable. So Judge Parker assembled a panel of lawyers and judges and did a lot of research and came up with a plan which was very controversial and revolutionary and has affected the way we try cases in this district to this day. That is, he believed that what made litigation prohibitively expensive for all but the wealthiest litigations was that discovery had become more important to lawyers - some lawyers at least - than the actual trial and resolution of the case, so that an inordinate amount of time was spent battling over efforts to disclose documents and get testimony. So, Judge Parker's plan required prompt and very, very early in the game, voluntary, mandatory disclosure. So, both sides would have to cough up everything they had, good and bad, which bore significantly on any claim or defence, and that simply meant that you had to give it all up and that didn't mean that it was going to come in but meant that it was coughed up and then there were limits on the number of depositions you could take. There were limits on the number of hours of depositions you could take, and the trial was set promptly within twelve months. A whole generation of trial lawyers kind of cut their teeth - some of them very begrudgingly - on those rules, and the plan is no longer mandatory, but we have judges who still use it on a case by case basis, and one of the reasons we get such bit-time patent law suits, in Marshall, for instance, where Judge Ward is, is because he still uses the plan. WE tried a case in July in Judge War'd court, and it was a huge patent case involving a company from Huntsville, Alabama, which had sued Intel, the largest chip manufacturer in the world. our suit was filed against Intel in July of 2001 and went to trial in July of 2002. They had a companion suit in Birmingham which had been filed in 1996 and still hadn't gone to trial. We ended up... the judge ordered both sides of the cases. our judge ordered both of the cases mediated, and we ended up settling the Birmingham litigation because of our case. So, that's why (we) get those kinds of cases because we have judges who have a reputation of being smart and innovative and efficient in moving their dockets, and it's, you know, I think it's a tribute to the judges in the district.
LP: You're exactly right. And this shows my ignorance, but attorneys from outside the district, like the California attorneys, can bring their cases in? Does it have to have some relevance to the area?
OC: Well, you know, a lot of times, for instance, Intel got sued in our district over their pentium chip. Well, the law says that patent cases have to be brought in federal court because the Constitution says the federal government has the authority to grant patents. So, you've got to go to a federal court. The only restriction is the defendant has to have some business contact in the area and so, Intell sells chips everywhere. So, you know, that's how all that happens.
LP: Okay. That's great. Have there been any changes in the interpretation of the law i the federal courts since you've been here... how they perceive the law and hand down their verdicts?
OC: The courts in the '70s in the Eastern District of Texas were very much involved in integration cases. All of the judges, Judge Steger, Judge Justice, Judge Fisher, they all had very important and difficult integration cases going on. The Warren Court had just gone away and the Burger Court had just come in, so there was this transition between, I guess, philosophies from the Supreme Court and, more importantly, in the '70s, the Fifth Circuit, which is the Supreme Court as far as the Eastern District is concerned, was a totally different circuit court that it is today. Number one, it physically was different, and I can't remember the exact year, but the old Fifth Circuit involved or included: Texas, Louisiana, Mississippi, Alabama, Georgia, and Florida. That was deemed too big, and Congress created the Eleventh Circuit out of the olf Fifth and the new Fifth had Texas, Louisiana, and Mississippi, and the Eleventh had Florida, Georgia, and Alabama. The old Fifth was famous for legendary courageous appellate judges, judges who had affirmed very controversial integration orders. John Minor Wisdom, Irving Goldberg from Dallas... trying to think of his name... Homer Thornberry from Austin, who swore in Lyndon Johnson after Kennedy got killed. They just (were) powerful intellects, powerful intellectuals. John... trying to think of the old Chief Judge's name... who had a handlebar moustache... was was his name... John R. Brown. And that court, in my mind, set a standard of excellence for judges that encouraged judges, and I mean this sounds kind of silly, but to take chances, not be afraid of getting reversed. At a day, and I don't know why and can't put my finger on the wherefores, but today the mood is completely different, and there are elements in the Fifth Circuit which seem hostile to litigation. I mean, they're happy for the federal courts to be relegated to trying criminal cases. It's just this notion, this, I guess, this political notion that federalism dictates that federal courts take a junior role to state courts... that all of the important issues should be dealt with by state courts rather than federal. Of course, in the '70s, that was very much the opposite because federal courts were doing things that Congress mandated because the state courts wouldn't do them - the Voting Rights Act, Public Accommodations, OSHA. In 1975, in this district we tried the first constitutional challenge to warrant with searches under OSHA. It's called Gibsons vs. Brennan. Brennan was the Secretary of Labor, and it was the old Gibsons store chains, and they refused... old man Gobson was a real right wing anti-government person and was looking for a way to challenge OSHA and it was the brand new laws passed in 1970 and he decreed that the OSHA inspectors couldn't go into his stores in the non-public areas without a warrant and that case got... occurred... or, the facts occurred in the Gibson store in Plano, and it ended up getting filed and that's the one Charlie Wright and I tried and it was tried with a three judge court panel, Judge Steger, Judge Justice, and a Fifth Circuit judge who's dead now named Tom Gee. And they ruled that the Occupational Safety and Health Act, as written, required warrants. And about six mon ths later, a court in Idaho, a three judge court, tested the same issue and agreed with the decision... or agreed with the decision of our court, but said they disagreed that the law was written that way and, therefore, they ruled it unconstitutional and it went to the Supreme Court directly.
LP: And what happened there?
OC: It was affirmed. And the warrants were required. And then we had a lot of cases involving oh, what would you say, the EEOC had a lot of racially motivated firing cases, a lot of teacher firing cases. All of those happened in federal court. Had a lot of free speech issues. You just don't see those and I'm not sure why, but one of the things that I think is... explains that is the fact we've got a Fifth Circuit was very reluctant to disturb a jury verdict. Now, they would turn a case over if they disagree with the application of the law, but it was very unusual for them to substitute themselves for the jury's decision and now Judge Parker told me the other day that statistics are that they reverse sixty percent of their cases for... because they disagree with what the jury did and what that means is that, you know, they don't trust the jury system, which is a very telling comment.
LP: Right. Keep going. It's a very telling comment concerning...
OC: Well, it... the jury system is under attack in this country and some say that juries are a relic of the past, that litigation is too complicated for juries to deal with and, I think, you know, jury verdicts and trial lawyers are political whipping boys.
LP: How so?
OC: Well, you know, every time you pick up the paper and some candidate on the right's running, his platform is "I'm gonna', you know, I'm gonna' to do away with junk lawsuits and crazy jury verdicts and greedy trial lawyers and all that stuff." And the interesting thing is you can never find a lawsuit which has resulted in a big controversial verdict which did not come from a bunch of citizen jurors. So, when people complain about junk lawsuits, there's always a bunch of citizens who sat on the jury getting paid five dollars a day who issued that verdict. And so what it is is is that people don't like outcomes and they don't want to blame the facts. They want to blame the people who sat in judgement of them. And it's... you know, one of the things that we've got today that we didn't have thirty years ago is we have a huge alternative to civil litigation and that's the alternative dispute resolution.
LP: Oh, the mediation?
OC: Well, and arbitration. It's very rare to see a sophisticated business contract today that does not have an arbitration clause. And the courts have time and again favored them and said that you're stuck with them. You cannot buy a share of stock. You cannot... when you sign an agreement with the stockbroker to go into the market and buy stock for you, part of the language in your agreement is an arbitration clause. And if that stockbroker steals from you or is negligent and loses your money, you cannot go to court and sue him. You have to go in front of an arbitrator. You don't get a jury. And if you don't sign that, the stockbroker won't work for you. So, the reason for that is the business community, in Judge Parker's words, has lost faith in the jury system and one of the things that I think could happen is that if judges and lawyers gave juries a chance to be more interactive in the way they handle their business, they'd see more reliable verdicts. For instance, when Judge Parker tried a big case in Beaumont a number of years ago, which was very famous, very complicated anti-trust case, and traditionally jurors never hear final arguments from lawyers until the case is over, getting ready to decide. In this case, Judge Parker allowed the lawyers a set amount of time, I think it was two hours, where any time during the trial a lawyer could stand up and use any part of that time to comment to the jury about something of significance that had happened. So, if a witness testified about something that was important, the lawyer after the witness testified could stand up and ask the judge to use the time and say, "Now, members of the jury, you remember this case is about... this issue and this issue has to be this element provided. Mr. Jones, the witness, just admitted that very element, so remember that." Now, you know, how much more important is it to hear that right after the event than three or four weeks later when it's cold in your mind? So, those kind of things are important. You know, judges have wrestled with the question of whether jurors ought to be allowed to ask questions. The whole process, I think, of the jury system is a collective vote on... on a theme. I mean, you know, it's... it's very rare, I think, that jurors decide cases based on any one fact or any one piece of evidence. Over a long trial, jurors hear a bunch of evidence and they get it in their mind pretty generally what the case is about, pretty generally which side has brought witnesses which are reliable and believable and reasonable and which side haven't and then that, I think, flavors their... the outcome. But, you know, I think what we never have and don't want to have are jurors who are professional jurors and that is jurors who are like arbitrators and who have expertise and... you know, that's all they do for a living is hear cases because, to me, that takes away what the jury brings and that is some kind of representative reaction to a set of facts, you know? And you get... you draw six or ten people from the area and you tell them a set of facts and their reaction is going to be based on a lot of things... what the judge says, what the lawyers do, how the witnesses comport themselves. But, really and truly, it's going to be a representation of how this particular area responds to those kinds of facts. You know, you try the same case in Tyler, Texas, that you try in Oakland, California, and you're likely going to have a different result. If somebody files a lawsuit here claiming they've been fired because of racial reasons, the outcome in Tyler may well be different from the outcome in Beaumont because of the composition of the juries.
LP: That makes sense.
OC: Where you have panel members who have more history with you... you know, hands-on history with discrimination, where do you have more black panel members, where do you have more brown panel members. And that, you know that's... that's... I think that's a healthy thing. We had a case in this district last year that I filed along with a lawyer in Marshall that challenged the congressional districts in the state after redistricting and it was a big battle and our court and our cases ended up being the one that was used to redistrict the state and Judge Ward and Judge Hannah and Pat Higginbotham, the Fifth Circuit Judge from Dallas, tried the case. And one of the very powerful facts that came out during the redistricting trial is that by leaps and bounds we are becoming a state where the majority of the populace are not Anglos and it's clear that by the next time we have a census, 2010, Latinos will be the majority in the state. They are the fastest-growing subset... population subset of the state. And once they get organized and start, you know, registering to vote and show up for jury duty, then I think you're going to see a different type of results in a lot of cases. We have very conservative juries, in, for instance, in Tyler. A lot of it, I think, is because we have a large retired population, people who are, you know, worried about their money, and we've got a population who won't vote for school bonds, won't vote for taxes, and, you know, kind of "I've got mine, to hell with everybody else". Well, when the young Latinos start showing up for jury duty, they're going to have a different attitude. They're going to bring a different perspective. In my view, it won't be pro-business. Anybody who files a lawsuit is a malingerer and out for something that's not hers or his. Very much is that the case in South Texas right now, in the Valley. They have jury verdicts in Starr and Hidalgo and in Corrizo Springs that kind of shock everybody because it's... a lot of people view it as being third world justice. But it's because you've got people down there who were under somebody else's foot for so long and now they have political power and they're exercising it. And what's... you know, to me, that's part of the jury system.
LP: What's an example, like a specific example of a Latino jury decision?
OC: Well, one real good example is Latinos historically are anti-capital punishment and in this district, we have... of course the federal government has now just gotten back in the death penalty business in the last ten years... but we've only tried on death penalty case and I was involved in that one. We had two Hispanic brothers who were involved in the death of a constable in Garrison, which is over in Shelby County. On Highway 59, he stopped these three Hispanic kids from South Texas who were driving to Chicago late at night and they had marijuana in the trunk and he searched their car and there was a scuffle and his gun came out and he got killed. And what made it so notorious is that he had a camcorder on his dashboard that recorded everything. That was, of course, the evidence against these guys and they indicted them... the feds indicted them under the federal death penalty law, which had just been put on the books that made it a federal capital crime to kill a police officer in a drug deal. You know, we had a big trial. Judge Parker tried it and the jury convicted them. But the federal death penalty law was dramatically different from the state death penalty law because it required the jury to do a much more thorough investigation of mitigating factors and answer a bunch of questions. This jury, which was a very representative Tyler jury, did not recommend the death penalty. And, instead... and Judge Parker... in the federal system, the judge sentence and the juries don't. And the judge gave the shooter, my client, life without parol and the other brother, I think, that set forty or fifty years, which in the federal system is real time. You do ninety percent of your time.
LP: Really?
OC: Yea. There's no parole in the federal system.
LP: That's interesting.
OC: As a matter of fact, one of the things that was interesting about that case, Davor Jedlicka, from UT Tyler, testified for me in that case during the punishment phase about a study which had been done in Oklahoma. First of all, he testified about the relative peacefulness of the Latino subculture in South Texas before drug came in, that how... how it was a very law-abiding, authority-respectful culture, a very family oriented, you know... you didn't do things because it would embarrass your family... and all that kind of stuff. Violent crime was non-existent until drugs came in. And he also testified about a study they'd done... been done in Oklahoma about how cost-ineffective the death penalty was, that converting death penalty sentences to life in prison saved the state hundreds of thousands of dollars per inmate. And the jury was shocked by that testimony. I had one of the jurors tell me later that that was very important because there was this discussion about, well, if, you know... if we put him away, the judge puts him away for life, it would be so expensive. And most people think that, but the reverse is true, you know...
LP: Keep going. Because...
OC: It's more expensive to try and kill 'em than to put 'em in prison for life.
LP: Because they're on death row so much longer?
OC: Well, no, because of the appellate process. Lawyers, judges, you know... all the things that have to go. I mean, we, you know, we rightly make it difficult to put somebody to death. It's a very expensive procedure.
LP: Makes sense.
OC: And, I think, you know, that will... I know that was important for that jury because... the judge... the federal system... the judge told them going in that one of the options that he had if they recommended not to impose the death penalty was to give them life without parole. And, you know, that... that gave them a comfort factor. That if... that, number one, it was out of their hands if they said no death penalty. But, number two, the judge could and probably would put them away where they never would hurt anybody again.
LP: You're right. Do you think the public option... I've got to let you go... public opinion has changed the court's verdicts at all within the last thirty years?
OC: The court's verdicts or the jury's verdicts?
LP: Well, what the juries come up with, but in the federal court.
OC: Oh, yea. I mean, we see, you know, we see jurors who are very hostile to what they believe to be meritless lawsuits. For instance, we see jurors who will not accept the judge's pronouncement about what the law is. Judge says, "You're instructed that the law is that if Joe Smith, employee, is driving a WalMart truck and runs into Sara Jones, WalMart is liable because Joe Smith was working for WalMart." You see jurors who won't accept that. They say, "Well, WalMart didn't do anything. It was Joe Smith."
LP: Interesting.
OC: And it's because of these notorious high-profile verdicts, you know, the McDonald's coffee cup. And people say, "I'll never be a part of that... I don't wanna'... I'm not giving anybody anything". And, you know, it's... but, I mean, those are personal injury suits. The flip side is in this district, we find jurors who are very hostile against, for instance, coporate fraud. And you get jurors who you wouldn't think would ever give any money to a plaintiff who are very generous when a plaintiff has been defrauded or, you know, a company has been the victim of another company's sharp business practices, anything like that.
LP: Okay. That makes sense. That's interesting, and I know you are busy and have got a lot to do and I'm so grateful to you for having taken the time to do this.
OC: I'm sorry. You're welcome. Good luck on your book.
LP: Thank you. It's not mine. It's Dr. Cothrum's, but I'll tell him what you said.