Precinct 333

Sunday, July 18, 2004

OK -- Here's the Trial Details

We finished up the case Friday, after about two weeks of testimony and arguments.

And there was much rejoicing. At least among us jurors, and perhaps by the defendant, his family, and his lawyer.

The plaintiff, needless t say, was somewhat less pleased by the outcome.

Oh -- you want to know what the case was about.

Try here, then here.

Upon reflection, there are a number of things I could say about the case.

First, I believe Barbara Markham got screwed when she was fired by the Chambers County Narcotics Task Force. I believe that her boss, later fired for his own wrong-doing and eventually jailed for still more, wanted to clear her out because she "knew where the bodies were buried." That said, I didn't see either of her underlying claims of sex discrimination or whistle blower retaliation as particularly valid. The evidence arguably suggested that she committed the act for which she was fired (perhaps accidentally), trivial though it was. That act (reloading computer games on task force computers) probably doesn't justify firing, but does provide cover for firing an employee in Texas, which is an "employment at will" state.

That said, I understood Blair Brininger's strategy of following a path that would lead to mediation. He didn't have a lot to work with, so he made an attempt to get his client what he could. He saw mediation as the best way to get his client the best result. He also planned on a "trial by ambush" strategy if they did get into court, taking only one deposition (despite client suggestions) and holding all witness testimony until the time of trial, so that he might be able to surprise the lawyer for Chambers County with evidence she could not rebut. Both elements are acceptable strategy in the legal community. Still, I think he should have taken depositions from every single cop Barbara suggested as a witness. After all, cops regularly die in the line of duty (Blair looked like that thought had never crossed his mind before when I mentioned that to him after the trial was over).

Did Barbara hear a threat of criminal prosecution during the first mediation session? I think she probably did, but that this was subjective interpretation on her part and not what an objective observer would have heard. That said, she eventually signed a settlement after negotiating some changes and waited nearly four weeks to even begin to raise the issue. It makes it hard to believe that she was really all that intimidated -- she is one tough cookie. I understand Blair's refusal to raise the issue with the Court, though I disagree with it. And since he still had a contract permitting him to direct legal strategy and decide how to proceed, I understand his decision.

Had I been Barbara Markham, I would have fired Blair Brininger at this point. Correction. I would have fired him when he didn't take the depositions the previous fall. But for all her talk with other lawyers and voluminous email correspondence with Blair, she didn't do so. She gave him her documents and authorized sending them in exchange for the settlement check. He sent them, shortly before she changed her mind again. And so he completed the process by accepting a settlement check his client no longer wanted and followed bar association rules by depositing it in a trust account (where the money still sits today, five years later). Barbara finally fired Blair two weeks later.

Quite bluntly, I came to the conclusion that there were multiple "right ways" to handle this case, and that Blair Brininger used one of them. He got a sure result, but not the best outcome available. And I believe he and Barbara Markham were never on the same page as to what would be accomplished by a "file purge" of the charges against her. The result was an unhappy client who never embraced the settlement, never fully followed its terms, and who was certain to be unhappy when she didn't feel she had gotten justice (probably the thing she values most highly in this world). That has led to a couple of additional suits involving Chambers County, a renegotiated settlement agreement on better terms (with a different attorney) and this suit. But in the end I just couldn't find it to be malpractice, though I was one of those who began the deliberations siding with Barbara and against Blair.

My impression of the parties? I think Barbara Markham has what it takes to be a good cop, and I hope she can get back into the field. I think Blair Brininger is not the guy I would want to litigate for me in most matters, with the exception of the ERISA cases that are his specialty. I'd hire either of their attorneys, but won't tell you which I'd call first. And as for our judge, Tad Halbach, I'll definitely support his reelection, and also any pursuit of higher judicial office. I was very impressed.

But I'm glad it is over.


Creative Commons License
This work is licensed under a
Creative Commons License.