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At least a verdict in Robert W. Francis v. Gaylord Broadcasting and Angela Hale would have given one side vindication: either for the judge who alleged he was libeled in a television broadcast accusing him of “hardly working,” or for the reporter who maintained the accuracy of her work. But after a costly three-year fight, no one came out an obvious winner. Judge Robert Francis, of Dallas County Criminal District No. 3, settled his libel suit against Hale and Gaylord Broadcasting on March 1, four days before jury selection was to begin before Judge Merrill Hartman in Dallas’ 192nd District Court. The settlement terms are confidential. “I think a lot of people were interested in seeing that one,” says Joe Chumlea, Francis’ lawyer, of a possible trial. “But the matter has been resolved. I can say there’s been a settlement and we’re pleased with the results. But I can’t say anything about the details.” Marshall Searcy — who represented Hale and her employer, KTVT Channel 11 in Dallas — also declines to discuss the terms of the settlement. “I just think it’s a good resolution for everyone,” says Searcy, a partner in Fort Worth, Texas’ Kelly Hart & Hallman. Hale did not return a call seeking comment. The controversy started when Texas Lawyer obtained a seven-week block of parking records from a Dallas County commissioner in 1997; the commissioner was examining the records to determine whether to continue funding for two Dallas drug courts. After Texas Lawyer reported the existence of the parking records, Dallas criminal district judges, citing fears for their personal safety, issued an order demanding the return of the records and forbidding their release to other media. See “Parking Passes Dishing Up Campaign Dirt,” Texas Lawyer, Sept. 8, 1997, p. 1, and “Dallas Criminal Judges Want Parking Records Kept Secret,” Texas Lawyer, Sept. 22, 1997, p. 4. A subsequent Texas Lawyer article reported that several judges did not put in eight-hour workdays and left the courthouse at 3 p.m. or earlier, according to the records. But most of the records were spotty at best. For example, some records showed judges entering the courthouse on a particular day but never leaving. See “ParkingGate?” Texas Lawyer, Nov. 10, 1997, p. 1. KTVT Channel 11 also obtained the parking records and used them as part of a three-part series that aired in November 1997. Reporter Hale and a photojournalist followed the judges in secret as they left the courthouse during business hours, according to a Texas Court of Appeals opinion in the case. In her report, Hale alleged Francis was “hardly working,” leaving the courthouse early 67 percent of the time and working half-days 50 percent of the time, the court noted. The station stood by the accuracy of its broadcasts, saying it was substantially true and represented a fair comment on a public official. Francis sued in April 1998 alleging the characterization of his work habits was inaccurate and the information used was erroneously interpreted, poorly utilized and incomplete. In March 1999, Judge Hartman denied Gaylord and Hale’s motion for summary judgment and they appealed. In a Nov. 24, 1999, opinion in Gaylord Broadcasting and Angela Hale v. Robert W. Francis, a three-justice panel of Texas’ Court of Appeals for the 5th District affirmed the denial of the summary judgment and remanded the case to the trial court. In the opinion, Justice Tom James questioned whether the reporting was “reasonable and fair.” He also concluded there was some question as to whether the station acted with “actual malice” — the hardest burden for a plaintiff to overcome in a libel suit. “The summary judgment suggests that some of the evidence used in the broadcast may have been fabricated or improperly extrapolated from other evidence,” James wrote. “We conclude that Francis’ summary judgment evidence creates a fact issue as to whether Hale acted with knowledge of the falsity of her statements or a ‘high degree of awareness of … probable falsity.’ “ On June 8, 2000, the Texas Supreme Court declined to review the case. But in a published dissent, Justice Nathan Hecht wrote a stinging rebuke stating that by not reviewing such a case, the court was creating the public impression that judges are protecting themselves against critical journalism. “The Court invites the charge that defamation suits against broadcasters critical of judges are not given the same scrutiny as defamation suits against broadcasters critical of other public officials,” Hecht wrote. Last-minute confidential settlements are common at any courthouse, allowing both sides to save face without having to expose the weaknesses in their cases before a jury. But there’s no way to know why both sides came all this way only to forgo the trial. Chumlea says the conclusion of the case is a victory for Francis. “We achieved a significant outcome in the 5th Court of Appeals,” says Chumlea, of Dallas’ Bragg, Chumlea, McQuality & Smithers. Trial or not, Francis says he’s happy with the outcome, even though it didn’t involve a public apology or a retraction from the defendants. “I’m very pleased with the way things have worked out,” says Francis. “That’s about all you can get me to say. Read that [Texas 5th District] opinion and tell me that it didn’t go my way — exactly the way I wanted.” But Searcy says the Texas Court of Appeals decision resolved nothing. “All that opinion says is there is an issue to be resolved by the trial court,” Searcy says. “I think Judge Hecht’s opinion best expresses what I would say” about the case. RISKY BUSINESS Three Texas media lawyers agree that most libel cases go to trial — or get close to it — only if there are strong facts on both sides. The easiest cases, where a correction or retraction can fix the damage, usually settle within months, they say. Gary Richardson, a Tulsa, Okla., lawyer who in the early 1990s popped a Dallas television station with a $58 million libel verdict over a series of stories it did on the then-McLennan County district attorney, says he thinks a lawyer for a media defendant might not want to risk making a case worse by going to trial after losing a summary judgment in a written appellate opinion. Maybe “the media became … overly concerned about the fact that their case had set some strong precedent that was not necessarily favorable to the media from a legal standpoint,” says Richardson, a named partner in Tulsa’s Richardson, Stoops, Richardson and Ward. Also, a trial makes everything fair game. According to court records in the case, defense lawyers attempted to pry into Francis’ personal life to show what he did on court time may not have always been court-related business. Chumlea says he expected as much. “I will tell anyone who anticipates filing a libel suit, the defense will try to throw whatever mud is available,” Chumlea alleges. “We wouldn’t call it mud,” Searcy says. “We certainly would try to bring in all relevant facts.” The Texas Court of Appeals ordered the defendants to pay Chumlea’s legal fees for costs associated with the appeal of the denial of the summary judgment. Chumlea says the defense paid him some $15,000 in attorneys’ fees after the Supreme Court declined to hear the appeal. Chumlea will not comment on his fee arrangement with Francis. But generally, he says, such libel cases can cost a plaintiff over $100,000 to litigate. Notes Francis, “All I can say is he didn’t represent me for free.” Roger Diseker, another attorney who represented the television station, says he cannot discuss the defense costs in the case other than to say “it wasn’t cheap.”

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