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Houston litigator Barbara A. Radnofsky really does have it both ways. Radnofsky does defense work at Vinson & Elkins, but also runs a small plaintiffs’ personal-injury practice within her big firm. It’s an unusual arrangement, but one that works because she picks PI cases in discrete areas and avoids client and issues conflicts. Radnofsky isn’t the only Texas lawyer with defense blood running through her veins who is finding a way to do personal-injury work, but there aren’t too many of them. For that matter, the unusual setup is not encouraged at many other large Texas firms. There’s simply too much potential for conflicts at big full-service firms, and big firms, with their standard of hourly billing, aren’t set up to fund personal-injury litigation, say lawyers at other heavyweight Texas firms. Unless the potential PI client is already an important client, or related to one, the big firms aren’t likely to take on personal-injury clients who come knocking at their doors. “We would turn it down almost all of the time,” says W. Frank Carroll, a senior litigation partner in Dallas’ Winstead Sechrest & Minick. That’s not Radnofsky’s mindset. The V&E partner says she’s taken three plaintiffs’ personal-injury suits to trial and settled seven others during the last decade while at V&E. The cases include premises-liability suits, a wrongful-death suit filed by the family of a woman who died after a Caesarean section, and litigation alleging defective barbecue lighters caused injuries and deaths. “I have generally taken cases involving kids or women,” she says. “It’s got to be that mix of fantastic damages, great cause and no conflict.” She doesn’t see a philosophical disconnect because she believes in the truth in the facts of all of her litigation. “When I take a case, it’s good, it’s got some deserving people,” she says. Former V&E managing partner Harry Reasoner, who signed on to Radnofsky’s idea about 10 years ago when she initially asked the firm to allow her to take some plaintiffs’ personal-injury suits, says it works because of Radnofsky’s careful screening. “She doesn’t bring any cases that don’t deserve to be brought. She’s had some terrific success,” says Reasoner, who says years ago he filed a PI suit against an airline after an airplane went down between Houston and Dallas. Brock Akers of Phillips & Akers in Houston is another Texas defense lawyer who straddles the imaginary plaintiffs-defense bar by taking a select few personal-injury suits when the opportunity arises and he believes in the case. “For a defense lawyer, after a while it gets hard working for some big company trying to keep money out of the hands of orphans and widows,” Akers, a longtime board member on the Texas Association of Defense Counsel, says. “I like to be a nice guy sometimes.” It’s a change of pace, he says. In fact, he says a medical malpractice suit, in which he represented a plaintiff who was unhappy with a penile implant, is “my favorite and funniest lawsuit ever.” Radnofsky joined V&E in 1979 after graduating from the University of Texas School of Law, and she did a variety of litigation over the years. In the early 1980s, she began defending blood banks from litigation filed by people who allegedly contracted HIV from blood transfusions, a practice that led her to expertise in the med-mal area and broader involvement in pro bono work. A decade ago, Radnofsky says she went to Reasoner and asked if she could do some plaintiffs’ personal-injury work. “He was very positive” about the proposal, she says, allowing her to take the giant leap from representing the plaintiff in a commercial case to representing a plaintiff in a personal-injury suit. She handled several suits on behalf of people who were injured or killed in fires she alleges were caused by defective safety mechanisms on multipurpose lighters commonly used to ignite fires for barbecues or fireplaces. Radnofsky worked closely with the Consumer Product Safety Commission, and helped the commission develop safety standards for the lighters that were released in 1999. “It was the best legal work I’ve done and it was the easiest,” says Radnofsky, adding that she no longer takes lighter suits because the standards led to safer products. Radnofsky says she’s taken three plaintiffs’ suits to trial. She lost one in August 2001 in Houston County that was filed on behalf of a girl abducted outside a theater. A lighter suit in federal court in Missouri settled in 2002 for a confidential amount the night before closing argument. And she also reached a confidential settlement during trial in a premises liability suit filed in Dallas. Radnofsky says the most difficult aspect of doing plaintiffs’ personal-injury work at V&E is working around conflicts. She says she looks at about two possible suits a week, and takes only about one in 100. Reasoner says V&E has an elaborate software program to screen for client conflicts, but issues conflicts require more judgment. Any lawyer with a new piece of litigation, particularly when it’s a new client, would need to get approval from a section head before taking the suit. Also, all significant contingent-fee suits must be approved by a committee, he says. “You just have to be sure you communicate,” Reasoner says. Radnofsky says she has two active suits right now, including one filed in 2002 in connection with a drunk-driving death and a different one she is preparing to file but declines to discuss. She also is considering a med-mal suit, and is waiting for the 5th U.S. Circuit Court of Appeals to rule on her appeal of a summary judgment ruling in Bryan Flock, et al. v. Scripto-Tokai Corp., et al., a lighter case pending in federal court in Houston. The 46-year-old member of the Texas Association of Defense Counsel is board certified in personal-injury trial law and civil trial law. She’s also a mediator and arbitrator who serves as head of the firm’s alternative dispute resolution group. Most of her nonplaintiff practice is medical malpractice defense, mediation and arbitration. She says she’s learned a lot about the practice of law by doing plaintiffs’ work. For instance, she’s learned that a principle or an equitable remedy may be a more important goal for plaintiffs than money. “They want for it to have not been in vain,” says Radnofsky. She believes representing plaintiffs makes her a better defense lawyer because she has a greater understanding of what plaintiffs’ lawyers want. For instance, she says, she now knows how desperately the plaintiffs’ bar wants a trial setting. And she can better gauge who on the other side is undervaluing their cases. Radnofsky says she hasn’t had any problems with her defense clients because of her plaintiffs’ work. But she hears amusing stories often about competitors who approach her clients at cocktail parties and try to steal them by informing them about her work on the other side of the docket. “People know what they are getting, I hope,” she says. “The ones who like me think it makes me a better lawyer,” she adds. Bill Teague, the chief executive officer of Gulf Coast Regional Blood Center in Houston, has nothing but praise for his outside counsel, Radnofsky, and her skills. He says she’s nationally recognized as an expert in litigation stemming from blood donations, particularly as it relates to HIV and hepatitis. Representing plaintiffs in personal-injury litigation simply shows her commitment to justice, suggests Teague, who has worked with Radnofsky for more than two decades. “It also, to me, demonstrates her commitment to whoever she thinks is right. If she thinks somebody is being ripped off, she’s going to do her best to take care of them [or] if she thinks somebody is being falsely accused,” he says. Reasoner, V&E’s former managing partner, says he’s heard some low-level complaints about the plaintiffs’ practice from some defense partners at V&E who are uncomfortable with it because “they are just kind of defense lawyers to their very soul.” But Reasoner points out that those lawyers aren’t turning down any share in contingent-fee profits. She won’t put an exact dollar figure on it, but Radnofsky says the “overwhelming portion” of the revenues she brings into the firm comes from her contingent-fee work. Radnofsky says the potential riches of a plaintiffs’ PI practice will not lure her from V&E, her firm home for 23 years. She appreciates the firm’s support for pro bono work, and likes the strength of a large firm. “Nothing could compare to this,” she says. BOTH SIDES Firm consultant William C. Cobb of Houston says lawyers such as Radnofsky can maintain a plaintiffs’ practice within a large firm as long as the lawyer truly understands the risks and potential rewards of investing in contingent-fee litigation, and appreciates the fact the firm is essentially a venture-capital partner in the litigation. “There will have to be a tremendous amount of trust,” Cobb says. He also says that large firms should avoid investing more than 5 percent of their annual revenues in contingent-fee cases. Tom Crosley, president of the San Antonio Trial Lawyers Association, says it’s unusual for a firm the size of V&E to have a lawyer doing plaintiffs’ work, but not so extraordinary at smaller trial firms with defense dockets. “Ten years ago, I’d say very unusual, but I’ve seen more and more defense firms cherry picking plaintiffs’ cases,” says Crosley, a partner in Branton & Hall in San Antonio. Carroll, the Winstead lawyer, says attorneys at his firm will occasionally handle a traditional plaintiffs’ suit, but almost always when it’s an existing business client, or one of their relatives. “We sort of do it as an accommodation to our regular clients, like we don’t regularly do domestic relations things,” he says. At Baker Botts, Joseph Cheavens, the head of the firm’s trial practice, says lawyers have taken on only a very few personal-injury, contingent-fee suits over the years. The firm wants to avoid issue conflicts with regular clients, he says. Baker Botts lawyers will refer cases to personal-injury lawyers they know, but the firm doesn’t take a referral fee. “Say the general counsel of ‘X’ company calls me and says, ‘One of our guys just got real bad hurt in a car wreck’ or had a med-mal [problem] or their kid was killed or something horrible; depending on the type of case, the amount of money, there’s any number of good lawyers to refer it to,” Cheavens says. Cheavens says he considers it a personal favor to refer a case from a client under those circumstances. (He doesn’t expect a fee, but a bottle of wine at the holidays from the plaintiffs’ lawyer might be nice. He says he once referred a case to a prominent plaintiffs’ lawyer in town, and the lawyer later sent him a shirt.) Like Radnofsky, Jenkens & Gilchrist shareholder Robert Thackston says plaintiffs’ personal-injury work has made him a better defense attorney. “I did learn that some defendants will literally try to bury you in paper. It’s possible. I’ve heard plaintiffs’ lawyers say that it is very frustrating to work against people who are billing by the hour … perhaps designed to just wear you down,” says Thackston. Thackston, of Dallas, says he’s handled a few plaintiffs’ personal-injury suits over the years. He says he recently assisted shareholder Christopher Brown of Houston with a suit filed on behalf of the family of Kristie Tautenhahn, a law firm employee killed in an elevator in a downtown Houston building during flooding from Tropical Storm Allison. The suit, Carl Tautenhahn, et al. v. Hines Interests Limited Partnerships, et al., filed in 2001 in probate court in Harris County, settled in 2002 under confidential terms. Thackston says plaintiffs’ lawyers are usually scrappier than defense lawyers, and he’s tried in a sense to emulate that drive by being aggressive instead of defensive. He says, “It’s a different perspective when you are not getting paid by the hour and you are not going to get paid unless you win. It’s interesting to see both sides of it.”

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