Lawyer Slapped With Big Sanctions For 'Push Polling' Potential Jurors

Scathing benchslap for a high-profile lawyer accused of attempting to taint a jury pool.

smack slap benchslap benchslapsObviously not every poll is created equal. Some incorporate house biases, others are tinkered with to match the results of the dominant narrative spun by their competitors, and some keep showing Donald Trump winning no matter how many times Nate Silver tells us it can’t be true. But most of the time, regardless of their faults, polls are crafted to provide a reasonably scientific measure of the prevailing mood or at least compelling fodder for the latest incarnation of Family Feud. But sometimes you don’t want to read the populace as much as you want to poison the well, and that’s why God made “push polls.”

Perhaps the most famous push poll in history is the one that many believe derailed Senator John McCain’s 2000 presidential bid. Then-Governor George W. Bush put the following poll question out to thousands of South Carolina registered Republicans.

“Would you be more or less likely to vote for John McCain… if you knew he had fathered an illegitimate black child?”

Hey, he’s just, you know, askin’ questions! He’s not saying it’s “true” or anything.

A high-profile Dallas lawyer earned a hefty sanction after Judge Ruben Reyes determined that Bill Brewer (formerly of Bickel & Brewer) constructed a push poll of the potential jury pool supporting his chosen defense strategy:

In a scathing ruling issued Friday, a state judge in Lubbock declared that prominent Dallas trial lawyer Bill Brewer committed misconduct when he used so-called push polling to improperly influence potential jurors in a West Texas wrongful death and products liability case.

State District Judge Ruben Reyes described Brewer’s conduct as “unprofessional” and “unethical” — findings that Brewer adamantly denies — and ordered the hard-charging trial lawyer to pay more than $133,000 in sanctions and take 10 hours of legal ethics courses.

Brewer’s client, Titeflex Corp., faces allegations that poorly made tubing caused the gas explosion that killed a boy. Titeflex, through Brewer, argued that the explosion was the fault of just about everyone else. In the lead-up to the case, Brewer brought on the polling firm of Public Opinion Strategies to survey the population. Unfortunately, Judge Reyes determined this poll went far beyond simple polling and really crossed the line when it started calling witnesses and other parties to the case.

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For his part, Brewer claimed that the polling was on the up-and-up and any contact with people directly involved with the case was purely coincidental. Judge Reyes, um, disagreed:

“The court finds Mr. Brewer’s actions were not merely a negligent act, a mistake or the result of poor judgment, and Mr. Brewer’s explanation that he bears clean hands because the poll was a blind study conducted by a third party vendor is insulting to the court,” Reyes wrote in his Jan. 22 ruling.

Reyes noted he was concerned that Brewer was “nonchalant and uncaring” during his sanctions hearing and that Brewer was repeatedly evasive when answering questions about his behavior on the witness stand.

Reyes also concluded that Brewer’s attempts to avoid responsibility “to be at the very least unpersuasive and at the worst in bad faith, unprofessional and unethical” and that his conduct was “threatening to the judicial system.”

For his part, Brewer still says he didn’t do anything wrong. But if he hopes to vindicate himself in court, he’d better weigh the costs carefully:

If Brewer appeals the sanctions order and loses, the judge said, the sanctions would increase to $173,000.

I’m assuming that means the judge will tack on $40K for attorneys fees if Brewer appeals. Because punitive disincentives to exercising your rights to appeal don’t seem too kosher. You shouldn’t have to lose a timeout if this call stands.

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Judge sanctions prominent Dallas lawyer for misconduct [Dallas Morning News]
Judge Sanctions Bill Brewer Over Jury Survey [Texas Lawyer]