Thursday, June 14, 2007

I am running for a seat on the Texas Supreme Court.

I am running for a seat (place 7) on the Texas Supreme Court in 2008 because I believe it is time to break the Republican stranglehold on the Texas Supreme Court, which, in recent years, has pursued an unchecked activist agenda of doing away with individual rights and legal remedies in the Texas courts and I have numerous significant ideas to substantially reform the Texas Rules of Civil Procedure, The Texas Rules of Appellate Procedure, and the Texas Code of Judicial Conduct to substantially reduce litigation costs, make the courts more accessible to the public and eliminate unethical judicial practices which undermine the integrity of the Texas courts.

Once I am elected to the Texas Supreme Court, I will use my position to encourage trial courts throughout Texas to change the way in which they operate and will seek to amend the Texas Rules of Civil Procedure, the Texas Rules of Appellate Procedure, and the Texas Code of Judicial Conduct (each of which have been promulgated, and are amended, by order of the Texas Supreme Court) in the following particulars.

Judges should be prohibited from soliciting or accepting political contributions from parties or attorneys who have cases pending in their courts. (Incredibly, some judges actively solicit campaign contributions from attorneys who have cases pending in their courts!)

Trial courts should implement a submission docket whereby most motions are decided by submission (without hearings) unless a hearing is requested, as is currently done in Collin County -- which will save litigants substantial sums of money and help to expedite the determination of all motions (since there will be far fewer hearings). Under this procedure, responding parties are notified of a submission deadline by which time they must submit any desired response to a motion, after which the trial judge reads the motion and any response and then issues an order. (This will also create a greater incentive for judges to actually read the motions and the responses on which they are ruling -- which it sometimes appears at hearings that a judge has not done.)

Trial judges should be required to read all timely filed motions and responses before ruling on same. (Incredibly, there are judges who do not do this.)

Out of town attorneys should be permitted to appear at non-evidentiary hearings by speaker phone in the courtroom (where the hearing can be heard by everyone) in order to save parties unnecessary travel and litigation expenses.

Mediation should not be automatically ordered in cases in which the pleadings indicate that the amount in controversy is equal to or less than $5,000.00. (Mediation should not be compulsory in such cases because the mediation fees and attorneys' fees imposed by such orders constitute a burden which is disproportionate to the relief sought for litigants in such cases and parties should not be faced with the choice they are currently given in many courts of incurring the cost of preparing an objection to a mediation order and attending a hearing on their objection -- which might be overruled anyway -- or just going ahead and paying a mediator and their attorneys for conducting a mediation. Although mediation orders in such cases do coerce litigants to enter into settlements merely out of a desire to avoid escalating litigation costs, I do not believe it is the role of the Courts to impose litigation costs on parties that are so disproportionate to the relief sought as to coerce settlements. I think it is more important for a judge to reduce the costs of access to the courts than to impose expenses upon litigants which coerce them into settlements.)

When mediation orders are entered in other cases (i.e., cases in which the amount in controversy exceeds $5,000.00) the orders should not designate a mediator nor a mediation deadline, unless the parties have agreed to same. Rather, all parties should be given an opportunity to agree upon a mediator and a mediation deadline in a rule 11 agreement to be filed with the Court or inform the Court if no agreement can be reached. Only then should trial courts be able to appoint a mediator and order a mediation deadline. (Since most experienced attorneys have mediators they prefer to use and file motions for substitution of the mediator when one is appointed by a trial court, this should also save judicial resources since a rule 11 agreement does not have to be reviewed or signed by a judge and the mediation deadline can then be extended by a subsequent rule 11 agreement between the parties without requiring another court order.)

Judges should automatically recuse themselves from all cases in which they are asked to recuse themselves by attorneys who have publicly supported any of their opponents (or who have run against them) if asked to do so by them in a motion for recusal in order to allay any appearance of impropriety or concerns about possible retaliation.

Preference in trial settings should be given to similarly aged cases in which both sides are ready to go to trial, unless a special trial setting has been given to an older case.

The position of cases on every week's trial docket should no longer be kept secret until parties announce "ready" or "not ready" for trial (contrary to the prevailing practice of only disclosing docket positions when parties make their trial announcements the Thursday or Friday before trial) so that attorneys and parties can reasonably anticipate when they will be called to trial and parties are not forced to incur substantial expenses in preparing for trial settings to which they will not be called. (This information should be posted on each Court's website.)

Each side in every case should be permitted one automatic trial continuance, if it is requested.

Cases in which both sides announce "not ready" should not be called to trial unless there are no other cases in which one or both sides have announced "ready".

Agreed Motions for Continuance which comply with all Local Rules (e.g., signed by the clients if the cases are over a year old in Dallas County) should be automatically granted.

Judges should appoint guardians ad litem who will not automatically approve all proposed settlements on behalf of children and incompetent persons but who will do meaningful investigations and reviews of proposed settlements on behalf of children and incompetent persons (i.e., their "wards") and who will reject settlements if they are not in the best interests of their wards.

Rule 173 Tex.R.Civ.Pro. (concerning the role of guardians ad litem) should be revised to clarify that guardians ad litem appointed to review proposed settlements on behalf of injured minors and incompetent persons are authorized to: (a) consult medical experts if they believe this is necessary to evaluate an injured minor's or incompetent person's damages; and (b) fire and replace Plaintiff's attorneys who have not adequately represented the interests of their minor or incompetent clients. Until this is done, I will encourage trial judges to expressly give this authorization to guardians ad litem in their orders appointing guardians ad litem.

Rule 173 Tex.R.Civ.Pro. (concerning the role of guardians ad litem) should further be amended to permit a guardian ad litem to participate in discovery, trial, or any other part of the litigation to the extent necessary to protect his/her ward's interest without a written order justifying same (as is currently required) because a guardian ad litem cannot anticipate when it will be necessary for him/her to intervene to protect the interests of his/her ward and request a court order permitting same. For example, as a guardian ad litem I once attended a deposition at which the Plaintiff's attorney failed to ask a medical expert the questions necessary to qualify him as an expert and to ask him if his opinions were being given to a reasonable medical probability (the standard of proof required for such testimony) even after we took a break and I instructed him to do so! A guardian ad litem must have authority under these circumstances to intervene and ask questions in a mediation, evidentiary hearing, or trial as necessary to protect the interests of his/her ward without obtaining an order authorizing him/her to do so and should be permitted compensation for his/her work when he is required to intervene in such a manner (which is not currently permitted).

Rule 173 Tex.R.Civ.Pro. (concerning the role of guardians ad litem) should further be amended to permit a guardian ad litem to conduct discovery in order to evaluate his/her ward's damages because a guardian ad litem cannot always rely on the adequacy of discovery conducted by a Plaintiff's attorney prior to settlement -- it is not unusual for cases to settle before any discovery has been done -- and Defendants sometimes refuse to provide documents or information to a guardian ad litem which the Plaintiff's attorney has not previously requested in discovery. (As a guardian ad litem, I have faced precisely this situation, where a Plaintiff's attorney had done no discovery before settling a case and the Defendant's counsel refused to provide me copies of any relevant records necessary to evaluate my ward's claims because the Plaintiff''s attorney had not previously requested them through discovery!)

Trial judges should automatically conduct Batson hearings (to determine whether jurors have been excluded for a discriminatory reason) whenever it appears to the trial judge that one or more jurors may have been excluded for an improper reason.

When Batson hearings (to determine whether jurors have been improperly excluded for a discriminatory reason) are conducted, special procedural rules should be adopted so that all persons who participated in jury selection for the party whose motivations are in question, other than the lead attorney for that party, should not be given the opportunity to overhear the testimony of their lead attorney and of witnesses who have not yet testified as to the reasons why a juror was excluded. In other words, "the rule" should equally apply to all witnesses in the context of Batson hearings.

Parties should be permitted to submit jury questionnaires (previously submitted to the Court and to which opposing counsel has had an opportunity to object) to jury panels for use in voir dire (in addition to oral voir dire) in cases in which the amount in controversy exceeds $50,000.00.

Parties should not be permitted to agree to excuse attorneys or others from jury duty "for cause" who have not disqualified themselves by their answers in voir dire (i.e., jury selection). (For example, parties may not simply agree to exclude all attorneys from a jury.)

Jurors should not be permitted to ask questions of witnesses (which at least one current judge in Dallas County permits) because jurors should be listening attentively to the evidence and not thinking about what questions they may want to ask or wondering why they have not been permitted to ask certain questions.

Video and audio feeds should be installed in all courtrooms (including the Texas Supreme Court) so that the public has meaningful access to the courts. Only bench conferences, voir dires (i.e., jury selections), witnesses whose identities would normally be protected, and jurors themselves should generally not be shown.

Judges should be required to disclose on their court websites all political contributions they have received in excess of $50.00. (These donations must already be reported on judges' public Campaign Finance Reports which are filed with the Texas Ethics Commission and/or their local county clerks' offices, but this information cannot easily be accessed by persons who are unfamiliar with the judicial campaign finance filing system and requirements.)

In addition, I believe the Texas Rules of Appellate procedure should be changed to require all appellate court decisions to be published because the current practice of permitting appellate courts to issue unpublished opinions (which may not be cited as precedent) is inconsistent with common law principles and the concept of stare decisis. Appellate courts should simply not be permitted to issue opinions which they are unwilling to have cited as precedent.

Appellate courts should also be required to make all of their opinions available on their websites. (Most opinions can be found on their respective Texas appellate court websites but, inexplicably, some cannot.)

The search engines on the Texas appellate court websites should make all cases they have reviewed searchable by reference to the trial courts and judges whose decisions they have reviewed, as this information is not readily available to the public, all state court judges in Texas are elected, and some judges actively misrepresent the number of decisions they have had reversed.

Political advertising paid for by Baltasar D. Cruz Campaign Fund, John Kechejian, Treasurer, in compliance with the Judicial Campaign Fairness Act.