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Is it the climate? Something in the water? A diet of red meat? There must be some explanation for the quality of the plaintiffs bar in Texas. Asked which states have pre-eminent plaintiffs bars, Carlton Carl, spokesman for the Association of Trial Lawyers of America, and Leslie Fagen, a partner at New York’s Paul, Weiss, Rifkind, Wharton & Garrison who defends cases all over, both mentioned Texas first. Five Texas firms made The National Law Journal‘s Plaintiffs’ Hot List — the most of any state, even though American Bar Association statistics show New York and California have twice the lawyers. Eleven of the top 100 jury verdicts of 2003 were won by lawyers from Texas. What makes them so good? The explanation, gleaned from recent interviews with more than a dozen prominent lawyers from both sides of the docket, boils down to a rich tradition, a nurturing culture and an appetite for risk. Many of the lawyers added that despite the bar’s vigor, they fear that trial lawyers, and the jury trial itself, may be endangered — threatened by tort reform, arbitration and escalating litigation costs. David Beck, a Houston lawyer who tries cases for both sides, traced the qualities that make Texas lawyers successful to the pioneers who first settled there. “Remember that those people were not afraid to take risks,” Beck said. “And that’s really what litigation is all about. “People in this part of the United States,” he continued, “are a fiercely independent group. That applies not only to lawyers, but it also applies in many respects to the business community. People believe very strongly in things. And if they believe they’re right, they will try a case. No matter what it costs.” What draws the lawyers isn’t the money, said Lee Godfrey of Houston’s Susman Godfrey, one of the firms on the Hot List. “We went into it because it was the greatest game in town,” he said, “This is for people who are unable to play football.” Texas-sized egos are a big factor, according to Joe Jamail, best known for his $10.5 billion verdict in Pennzoil v. Texaco. “I’ve got a hell of an ego,” Jamail said. “I think it’s a necessary ingredient. It’s a part of a lot of trial lawyers, but I think we have an abundance of it here. It’s: I’m going to kick your ass and you know it.” Virtually all of the lawyers spoke about tradition, several with nods to the state’s history, mythology and gunslinger past. Sitting in his Houston office, chewing gum and radiating intensity, John O’Quinn reminisced about learning to be a man and a lawyer. He spoke of John Wayne. He recounted the “true story” of a single Texas Ranger who arrived to quell a riot on the Rio Grande in 1920. The mayor had expected a posse. Where were the ranger’s companions? “The governor heard you only had one riot,” the ranger replied. “It only takes one ranger to handle one riot.” He did, killing all of the troublemakers, O’Quinn said. To O’Quinn of O’Quinn, Laminack & Pirtle (also listed), a plaintiffs lawyer is the modern incarnation of that ranger. He often finds himself “outgunned” by Harvard-trained defense lawyers, he said, pausing and leaning forward. “But ultimately only one of them gets to talk.” Others filled in the subtext: Many successful trial lawyers rose from blue-collar roots in small communities. And that worked to their advantage, said Ronald Krist, the veteran Houston lawyer. Many great ones learned from experience how to blend with, and talk to, people from all walks of life, Krist said, adding that there’s more of a “caste system” in the Northeast. “I believe we communicate more readily with the various strands of society than they do,” he said, which serves lawyers well in jury trials. Tradition was also grounded in opportunity. “When Texas was a have-not state, which it was for a long time, almost all the lawyers in Texas were trial lawyers,” said William Barnett, who was managing partner of Houston’s Baker Botts from 1984 to 1998. In the old days, he said, there was railroad litigation. When he started practicing, in 1958, the focus was on personal injury and insurance cases. Lawyers like O’Quinn and Wayne Fisher were profoundly influenced by the lawyers they watched years ago. They rattle off names like a baseball fan recalling stars or an Academy Award winner thanking actors who inspired him. Plaintiffs lawyers also credited the other side. “You can’t have a strong plaintiffs bar without a very strong defense bar,” Jamail said. “I don’t know of a place where the bar is stronger on both sides.” Firms like Baker Botts, Vinson & Elkins and Fulbright & Jaworski not only provided competition, many plaintiffs lawyers began careers there. But several lawyers voiced deep concern about the state of the profession. Krist noted that his 1976 lawsuit, the state’s first crashworthiness case, cost $25,000 in expenses. The tab for his most recent one was $400,000, and it settled. The cost — partly attributable to the stringent Daubert evidentiary standards — coupled with the unpredictability of judges, makes trying or even taking such cases too risky. These trends, along with tort reforms like the state’s $250,000 cap on noneconomic damages in medical negligence cases, worry Krist. FOR YOUNG LAWYERS, ‘A LOST ART’ Fred Baron of Dallas’ Baron & Budd (another firm listed) fears that, amid all the arbitration clauses, trying cases is “becoming a lost art.” As fewer go to court, a new tradition may supplant trials. “If you’re a lawyer and you have a difficult case and you’re trained to bring in a mediator,” he said, “that’s your tradition.” Many young lawyers have a hard time getting into courtrooms. Baron cut his teeth on workers’ compensation cases, but now these are resolved administratively. Insurance cases almost all settle. So, increasingly, only the biggest cases are tried, and clients demand not just brand-name firms but brand-name lawyers. Several Texas law schools have strong trial training programs, but law school preparation only goes so far. One of the University of Texas School of Law’s acclaimed graduates in recent years is Mikal Watts, who graduated at age 21. He’d won trial competitions and seemed sure to succeed, but four years later he was toiling at a small firm, no closer to a courtroom than the day he arrived. Now 37, Watts recalled those days in an Austin bar not far from his old school. His firm, the Watts Law Firm in Corpus Christi, is on the list. But he learned his craft only after he took aside his boss and complained that he wasn’t trying cases. A docket was created, and he finally learned how to pick a jury. He’s in court all the time now, and his opponents may be the ones feeling inexperienced. Even among successful lawyers, very few ever try the amount lawyers once tried in a year or two. Krist has reviewed applications for membership in prestigious associations, “and it’s gotten hard to find lawyers who have tried even 10 cases in their careers,” he said. “And I’m talking about lawyers who are 50.” Robin Gibbs of Houston’s Gibbs & Bruns (also listed) said training young lawyers is essential for a firm. Gibbs tries to get them into court, but it can be hard to persuade experienced lawyers to delegate. If a firm is to survive, however, “I don’t think you have any choice,” he said. In that Austin bar, seated across the table from Watts, Tom Bullion nursed a beer and thought about his friend’s success. “A lot of people are concerned about their reputation,” offered Bullion, a defense lawyer who has opposed Watts in court. “And if they lose a case, how that’s going to affect their reputation. Watts is not afraid to lose.” Later, Watts added: “I will try a lawsuit, win, lose or draw. And that scares the hell out of them.” He’s lost his share, like the first Baycol case. “You gotta be willing to lose,” he said, and move on. It’s a lesson that Jamail and others touched on, and before drinking up, Watts paid tribute to the 78-year-old dean of the Texas plaintiffs bar. “A lot of people in Texas were raised as his disciples,” Watts said. “His appetite for risk has nurtured a lot of people like me. “Joe has taught us that what the jury says isn’t bad; it’s the truth. I hope I’m part of that lineage.” Check out The Plaintiffs’ Hot List, and find out how the Hot List was determined.

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