Who You Callin' a Trial Lawyer?

Ask Gov. Rick Perry’s chief spokesman, Mark Miner, a question on any issue these days and the answer will invariably begin, “Liberal trial lawyer Bill White …”

The gruff but disciplined operative is expert at staying on message, and he’s determined to hang the liberal-lawyer stereotype — conjuring a vision of the greedy ambulance-chaser — firmly around the Democratic gubernatorial nominee's neck and to make him confront it. White has obliged, realizing, surely, that labels can trump issues in any campaign dogfight and that “trial lawyer” is a four-letter word in much of Texas.

So is he one or isn’t he? More importantly, does it matter?

White appears to think so. At a Texas Tribune event in March, shortly after White cruised to victory in the Democratic primary, Tribune CEO and Editor in Chief Evan Smith put the question to him: “They call you a trial lawyer. True?”

“I mean, I tried lawsuits, but never plaintiff’s personal injury. I represented businesses — that’s who I represented,” White said. When Smith asked if being labeled a trial lawyer during a 2010 election in Texas was a negative, he responded, “Well, if it was true, absolutely. If it’s false, then maybe people would see there’s enough falsehoods, and they shouldn’t trust people with no credibility.” He added, “Including journalists who repeat these things.”

The Perry team set all this in motion even before the general election line-up had been fixed. In late February, a memo written by Perry adviser Dave Carney articulated a caricature of White, the opponent he expected his boss to meet in November: “In this political environment no competitive state will elect a big city trial lawyer, anti gun, sanctuary city promoting, Clinton protégé DC politician, let alone a conservative state like Texas.“

Since then, the campaign has relentlessly sought to force "trial lawyer" deep into the subconscious of voters — there’s no issue too tangential to prevent its inclusion in a Perry campaign press blast. For example, when White criticized Perry’s calculation of the dropout rate, a release shot back, “Liberal trial lawyer Bill White ignores facts when they don’t suit his agenda." A release about Houston libraries shutting down for budgetary reasons: “For 32 days liberal trial lawyer Bill White has hidden the truth from Texans. ...” A release detailing the firing of a government whistleblower: “On Day 44 of liberal trial lawyer Bill White hiding his tax returns from the people of Texas. ...”

Trial lawyer or not, White at this point is far removed from being a practicing lawyer of any kind. His legal career began when he graduated from the University of Texas School of Law in 1979 and took a job at a Houston firm then known as Susman, Godfrey & McGowan. He quit the firm in 1993 and has since served as the U.S. deputy secretary of energy under Bill Clinton; headed up companies like Frontera Resources, Howe-Baker and WEDGE Group; and, most recently, served three terms as the mayor of Houston.

The case history

Nonetheless, the Perry campaign seems intent on taking voters back two decades, highlighting cases White worked on involving tort claims that they contend justify the “plaintiff’s personal injury” tag he specifically denies. In general, the definition of "tort" includes all civil wrongs other than a breach of contract — including, but not limited to, in lawyer parlance, the kind of personal injury cases that generally define “trial lawyers” in the public mind. Predictably, the Perry camp defines "trial lawyer" more broadly than the White camp does.

In one of the cases Perry’s campaign cites, White represented the now-deceased Billy Goldberg, a Democratic heavyweight from Houston, in a 1987 tort claim seeking damages from a construction company for “emotional distress.” Spinning out of a previous business dispute, Goldberg sought personal compensatory damages from R. J. Longo Construction Company for, among other things, “distress he has suffered and continues to suffer as a result of Longo’s wrongful conduct.” In the course of seizing property from Goldberg’s company to satisfy a business debt, federal marshals — acting at the direction of Longo — rifled through and took Goldberg’s personal property, causing him distress, White asserted on Goldberg’s behalf. According to the petition, “This distress continues to this day even though his personal property has been returned because of the reasonable perception that the defendants rifled through his personal papers and belongings, gaining access to confidential information that they are not entitled to have.”

Does that make White a personal-injury trial lawyer? Perry spokesman Catherine Frazier says it does. "There are numerous cases that show he did serve in that capacity," she says. But White spokesman Katy Bacon doesn't buy that there's a “personal injury” in the Goldberg case or, for that matter, in any other case that White took on. “This isn’t a case where someone’s coffee was too hot or they found a rat in their food and were grossed out so they got money,” she says. “That's a completely different type of case. This is a property case — not a personal injury case. I don’t have to tell you that personal property in Texas is a big deal."

“Most Texans know Bill White as the popular mayor of Houston and a successful businessman,” she insists.

Bacon doesn't dispute that when White was a practicing lawyer, he represented businesses on both sides of the docket — as plaintiffs and defendants — or that he often asked the courts to add on punitive or exemplary awards in additional to actual damages, a practice that draws the ire of advocates of the tort reform movement, which largely turned “trial lawyer” into a cuss word. Yet in some cases, Bacon says, White attempted to lower punitive damages. 

The making of an epithet

Most lay people hear “tort” and think “tort reform,” another controversial phrase in state politics. Sherry Sylvester, a spokeswoman for tort reform advocacy group Texans for Lawsuit Reform, says of trial lawyers: “Their agenda is to push legislation that tilts the court in favor of their client so they can make more money. That’s how we define it.” 

TLR formed in 1993 — just as White quit practicing law, and a year before Texas was called the “lawsuit capital of the world,” by The Wall Street Journal. TLR’s agenda struggled at first, but its fortunes turned when Republican George W. Bush took office as governor of Texas in 1995, a year in which it saw significant success in tightening restrictions on punitive damages. In 2003, when Republicans gained control of the Texas House, another wave of tort reform legislation swept over the state. 

Sylvester contends that the public, like the Legislature, has come around to TLR's way of thinking. “58 percent of Texans support tort reform — and want more,” she says. “That’s a majority of Democrats and over 80 percent of Republicans.” Perry, she says, “is one of the strongest tort-reform governors in the country.”

Tex Quesada, a Dallas attorney who is president of the Texas Trial Lawyers’ Association, frames the debate differently. “As a general rule, the trial lawyers are attorneys who are representing small businesses or families who have claims against insurance companies, or Wall Street bankers, or oil refineries.” Attorneys going up against such organizations, he says, “tend to make powerful enemies among very powerful groups.”

Asked why his profession repeatedly comes under attack in the governor’s race, Quesada says, “I can’t begin to tell you what motivates a politician who gathers very heavy support from insurance companies and oil refineries to decide which attack to lodge. It’s not unusual for a politician who wants support from business interests or oil companies to attack lawyers. It’s a lot easier to attack lawyers than to defend insurance companies or oil refineries.”

If statewide polls are any indication, the general public is unmoved by the is-he-or-isn't-he debate. After more than a month of general election name-calling by the Perry campaign, White is registering his highest level of support, according to a Rasmussen Reports survey released this week that has Perry beating White by only 4 points, 48 to 44. In March, Perry had a 6-point lead, 49 to 43.

Nonetheless, that debate is likely to continue — at least if the Perry campaign has its way. “The public should be concerned with people who take advantage of our legal climate in ways that waste money and that made a mess of our health care system that the governor and other state leaders have had to go back and fix and are continuing to improve,” Frazier says.

The White campaign counters that it’s easy to hate lawyers until you need one. “People who bring legal actions or defend legal actions deserve fair representation,” Bacon says. “Rick Perry is playing on a stereotype, and it’s never a good idea to malign an entire profession.”