By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
But on May 15, after presiding over the case for more than a year, Marshall decided to call the match. With a stroke of the pen, the judge granted a summary judgment, the legal equivalent of a referee awarding a technical knockout. Marshall ordered TRT Holdings, the defendant, to pay plaintiff David Berins $875,000. There would be no trial, no jury, no day in court. The months-long legal slugfest appeared to be all but over.
It was a bitter blow for Clay Hoblit and Christopher Bandas, two lawyers from Corpus Christi who were helping represent the losers, TRT Holdings. And, naturally, it was a sweet victory for John Bickel and Eric Calhoun, the Dallas lawyers who represented the winner.
It all might have ended there, just another case headed for years of expensive and potentially fruitless appeals. But the Berins case has not gone away. It has risen from the mat, and this time it is the judge who has found himself on the defensive.
In the weeks after Marshall delivered the near-fatal blow to their client's case, lawyers for TRT Holdings began finding out a few things about Marshall and his apparently cozy relationship with the law firm of Bickel & Brewer, which represented the winner.
For instance, while the case was pending, Marshall met privately in his office numerous times with a Bickel & Brewer paralegal and discussed the lawsuit. Such private discussions--ex parte communications, they're called--are out of bounds under most any reading of legal ethics.
Then there were the tickets to the Cowboys games. While Marshall was presiding over the case, Bickel & Brewer was happy to let the judge sit in the firm's luxury box at Texas Stadium. The firm may have even sent limousines to pick Marshall up at his University Park home and drive him to the games. (When there was no limo, the firm just gave the judge parking passes.)
Also troubling was a $250 wristwatch that a Bickel & Brewer paralegal delivered to one of Marshall's employees just six days before the judge issued his summary judgment. The same paralegal, it turned out, also agreed to pay the judge $1,500 for a catamaran sailboat he had been trying for more than a year to sell.
All of it--the private meetings, the watch, the boat deal--finally came spilling out in open court on August 4, when the losers went before another judge and asked for a second chance. Marshall, they argued, had compromised his integrity. Given Marshall's close ties to Bickel & Brewer, they said, he never should have ruled in the Berins case.
Questions about Marshall's impartiality were aired in an unusual five-hour hearing before Visiting Judge Ted Akin. Numerous witnesses--including two of Marshall's own employees--took the stand and detailed the relationship between Marshall and Bickel & Brewer.
"This thing stinks, and that's all there is to it," attorney John Barr--one of the lawyers representing TRT--told the visiting judge.
It fell to Akin to decide whether Marshall's summary judgment should itself be thrown out, and the case of Berins vs. TRT Holdings sent back to square one.
Neither Marshall nor Bickel & Brewer has denied the accusations--either in court or out. Sworn testimony and court records show that the private meetings apparently did occur. The watch and sailboat did change hands. Marshall was Bickel & Brewer's guest at Texas Stadium.
Marshall will not comment on the allegations, saying it would be unethical for him to talk about a pending case.
But John Bickel--partner in the well-known Dallas law firm of Bickel & Brewer--says the gripes about Marshall are "much ado about nothing."
"Yes, we have a box at Texas Stadium," Bickel says. "I'm sure we have invited judges. We've invited clients and friends, too. We've sent cars for some people. But I don't think any of this would have any influence over whether a judge rules for or against us."
Bickel, Marshall, and the attorneys who prevailed in Marshall's court contend that the judge's handling of the Berins case had nothing to do with the other private, social interaction that was taking place. They say Marshall's summary judgment ruling was proper and based on law, not the long-standing social relationships between the judge and the firm.
Marshall's behavior in the case, they say, was not unusual in the small world of the courthouse, where social relationships routinely blossom between judges and lawyers who also work together professionally.
The way Marshall's defenders see it, the private meetings, the favors accorded to Marshall, the gift to one of his employees, and the boat deal should not raise any eyebrows.
That's just how things work at the Dallas County courthouse.
David A. Berins, president of Dallas-based Berins Consulting Inc., specializes in hospitality. He's a hired gun who gives companies advice on running hotels, setting room prices, devising marketing strategies, and things of that nature.
In late 1993, a Corpus Christi-based company named TRT was interested in buying more hotels. TRT Holdings and TRT Development--two arms of the same corporate body--already owned some hotels in Texas and wanted to buy a national chain.
Robert Rowling, president of the companies, contacted Berins to help scout out the possibilities. In a contract drawn up on November 12, 1993, TRT agreed to pay Berins a "finders fee" if TRT wound up buying hotels Berins had identified. The amount of the fee varied, depending on whether brokers got involved in the deal.
Those fees would ultimately become the basis of Berins vs. TRT Holdings.
In court documents, Berins claims that he tipped off TRT that the Omni Hotel chain might be up for sale in December 1994. For much of the next year, Berins says, he worked to arrange a deal between TRT and Wharf Holdings Limited, owners of the Omni chain.
The two companies did finally cut a deal in early 1996, but Berins says he was shut out of the final negotiations. Berins believes TRT stiffed him on the fees it owed him.
In early 1996, Berins hired Bickel & Brewer to sue TRT on seven counts, including two breaches of contract, fraud, and negligent misrepresentation. Berins wanted TRT to pay him $875,000 for his services. The case was filed in Dallas County and assigned to the 14th Judicial District, Judge John McClellan Marshall's court.
In his 16 years on the bench, Marshall, 53, has earned a middling reputation as a judge. Every year, the Dallas Bar Association polls its members to see what they think of the judges in Dallas County. Approval ratings of 80 or 90 percent are not uncommon. In the most recent poll, Marshall received one of the lowest approval rankings, just 57 percent.
In the Berins case, TRT was represented by two lawyers from its hometown of Corpus Christi--Clay Hoblit and Christopher Bandas--and two Dallas attorneys, John Barr and Christopher Weil.
The case turned into an arduous and highly technical dispute, with vigorous argument over definitions and applications of real estate and securities law. Both sides availed themselves of every possible legal maneuver, and the Berins file down at the courthouse now bulges out of six file jackets that reach two feet in height.
Right off the bat, TRT's lawyers tried to have the case moved to Corpus Christi--the company's home turf. But Marshall denied the request, and the case stayed in Dallas. Both sides conducted exhaustive depositions. Motions and counter-motions stacked up. Neither side was willing to settle, and a mediator appointed by the court couldn't help forge an agreement.
Though hard-fought, the case was unremarkable until February 1997, when the first rumblings of ex parte communications with the judge surfaced.
Ex parte communications are one of the great forbidden acts of the court system. A judge is not supposed to listen to arguments, make rulings, or even discuss a case with lawyers from one side of a case if the other side isn't there to respond. The prohibition is supposed to keep the playing field level.
The first whisper of ex parte communications in Berins came when Hoblit filed a motion asking that Bickel & Brewer be sanctioned because John Bickel had sent Marshall a letter about the case. Although Bickel's letter indicates that a telecopy was sent to defendants' lawyer Bandas, Hoblit called the letter "clearly an attempt by Mr. Bickel to engage in improper communications with this court."
Bickel countered that his letter was only a response to a whiny letter he had received from Hoblit complaining about scheduling problems. Hoblit claimed Bickel was communicating improperly with the judge and asked for sanctions. Bickel claimed Hoblit was harassing Bickel, and asked for sanctions. Marshall denied both motions.
After months of bruising battle, both sides filed motions with Marshall seeking summary judgment in the case, each arguing that its client clearly should be declared the winner. Although summary judgments are rare, lawyers almost always ask for them.
On May 15, Marshall delivered the knockout blow to TRT's case. Based on complex interpretations of real estate and securities law, Marshall decided that Berins was right and should be paid the $875,000.
TRT's attorneys promptly began preparing to appeal Marshall's ruling. The first step in the process was to file a motion asking that Marshall's ruling be overturned and a new trial granted in the case.
While they were preparing that motion, TRT's attorneys began finding out just how tight Marshall was with Bickel & Brewer.
The private meetings
Charles Upshaw has been a clerk in Judge John McClellan Marshall's court since 1991. On August 4, when TRT got its chance to argue for a new trial before Visiting Judge Ted Akin, Upshaw was one of the witnesses TRT's attorneys put on the stand.
Upshaw testified that Suzanna Proctor--a paralegal working for Bickel & Brewer--made "numerous" trips to Marshall's chambers while the Berins case was in progress. It is the court's standard practice to notify both parties in a lawsuit of any hearings in the case, Upshaw testified. But, Upshaw said, there were times when Proctor visited the judge and TRT's attorneys were not told about the meetings.
Though he could not recall specific dates, Upshaw testified that Proctor made more than one stop at Marshall's chambers. In some cases, Upshaw testified, Proctor emerged from her private meetings with Marshall bearing signed orders from the judge that involved the Berins case.
"I do not recall an exact number," he said. "But there were numerous times where Ms. Proctor would come down to the court and she would get an order signed, and then I would begin to do the order."
Under cross-examination, Upshaw conceded to Bickel & Brewer attorney Luke Ashley that he was not present in the meetings and did not actually hear the discussions. But Upshaw testified that he "personally felt it was ex parte." (Upshaw declined to comment when contacted by the Dallas Observer.)
One of Upshaw's co-workers, Carine Evers, also testified about the private meetings between Proctor and Marshall. As court administrator, Evers keeps the court calendar as well as Marshall's private social calendar. And unlike Upshaw, Evers testified that she was physically present in a meeting between the judge and the paralegal. The discussion centered on an order in the Berins case, though Evers offered no details of its content in her testimony. No representatives of defendants TRT Holdings were present for the meeting, she said.
The $250 watch
Carine Evers is 25 and has worked as Judge Marshall's court administrator for six years. She's also been going to school part-time to learn paralegal skills. When she finished the program in May, Evers invited friends and co-workers to her graduation ceremony. Among those on the guest list was Suzanna Proctor, the same Bickel & Brewer paralegal who had been meeting with the judge.
Evers testified at the hearing before Akins that she had never socialized with Proctor, that she knew Proctor only because the two dealt with each other in the 14th District court. It was a professional relationship.
Still, on May 8, a courier showed up at the court with a box for Evers. Inside was a gold Seiko wristwatch, with a receipt for approximately $250. There was also a card from Bickel & Brewer, signed by Proctor.
After opening the package, Evers testified, she wasn't sure what to do. She called Al Rochelle, a lawyer for whom she sometimes baby-sits.
Rochelle says he told Evers to give the watch back. After talking to Rochelle, Evers told Marshall about the watch. Evers said she asked the judge to take the watch and give it back to Bickel & Brewer. The watch, Evers testified, was returned six days before Marshall's May 15 summary judgment ruling.
Shortly after Marshall returned the watch, Proctor came to see Marshall. The two met behind closed doors. When Proctor left Marshall's office, Evers testified, Proctor tried to get Evers to take the watch back. Evers refused it. Later, Evers testified, Marshall told her that she could take the watch back when the case was over.
None of the opposing attorneys in Berins was notified about the watch incident or the subsequent meetings between Proctor and the judge, Evers testified.
Evers was vacationing in Belgium and could not be reached by the Observer for comment. Proctor, interviewed with her lawyer, Michael Pezzulli, by her side, said the gift had nothing to do with trying to influence Marshall in her bosses' case.
"I'm so upset over all this," Proctor said, tears misting her eyes. "We spoke a lot about school. She sent me an invitation. She was passing out lists of things she wanted and needed for graduation. She had said she really would like to have this Seiko watch."
Proctor, who has worked for Bickel & Brewer since 1989, says she bought the watch with her own money, though in later testimony, attorney Rochelle said that Proctor told him the firm had authorized her to spend up to $500 on a gift for Evers.
"I signed my name and Mr. Bickel's. I wanted her to know it was from me," Proctor said.
Judge John Marshall tried for more than a year to sell his 1981 Hobie Cat sailboat before Suzanna Proctor offered to buy it. That the judge ended up selling his boat to Brewer & Bickel's paralegal while the Berins case was pending was not revealed until two months after Marshall's summary judgment ruling.
Although it is unclear from public records when the title to the boat changed hands, Proctor said in an interview that she has possession of the boat and that her family used it this summer.
On July 17, Marshall met with Proctor, John Bickel, Christopher Weil, and John Barr to discuss TRT's efforts to win a new trial. Marshall apparently decided to use the meeting to disclose the boat deal, according to a transcript of the conference.
"I sold my sailboat to Ms. Proctor at $50 less than the advertised price. This was not what I would call the most profitable transaction I ever engaged in," Marshall told the parties to the lawsuit gathered before him.
"But a good deal for me," Proctor replied.
"Actually," Weil said, "Ms. Proctor may not have gotten the better end."
Marshall added: "Well, I don't know. Is it floating?"
"I'm getting sunburned," Proctor said.
"Well, that's a good sign," Marshall replied. "I did want to bring that part up because that, again, is a relatively recent event and might cause some eyebrows to go up, and I'm not interested in raising any eyebrows."
The meeting went on to include more disclosures.
It turned out that Barr had played a small role in Marshall's 1996 divorce. "He prepared a piece of paper in the file on the matter for me, and that's all there was," Marshall said at the hearing. "He never actually filed anything, never made an appearance on my behalf. I never paid him for his services. I just mention that in passing, but I feel like everybody needs to know that."
Next, Marshall described a brief professional relationship with Weil, who "represented our family, what is it now, six years ago?" Neither Marshall nor Weil elaborated on the case, and neither would discuss it for this story.
And there was the disclosure that Bickel represented Marshall on a matter with the late Dallas Times Herald, which Bickel says was only a letter related to a story the paper had written about Marshall.
And finally, there was plenty of idle chatter about Marshall's and Bickel's days studying together at Southern Methodist University law school.
To the other lawyers present, Bickel said, "We certainly know each other from law school, and we have kept up in that regard. That's basically all that I think is appropriate for us to disclose."
But even at that meeting--coming two months after the summary judgment motion--Marshall did not fully reveal his contacts with his old law school chum from Bickel & Brewer.
The luxury suite
Before Carine Evers finished her testimony on August 4, she also told of the dates for Dallas Cowboys football games she kept on Marshall's social calendar. The trips to Texas Stadium, she testified, were on Bickel & Brewer, and Marshall sat in the firm's box. In addition, she said, "I've heard Judge Marshall say there's been a limo to deliver him to the stadium."
Dallas lawyer Albert Rochelle--whom Evers called after receiving the watch--buttressed Evers' testimony by relating conversations he had with Bickel about football tickets provided to Marshall. Rochelle graduated from Southern Methodist University law school with Bickel and Marshall in 1976.
But since they graduated together, Rochelle and Bickel have found themselves at odds. In April 1995, Rochelle hired Bickel to represent him in a personal case he filed against Ford Motor Company, which was later expanded to a class action suit. The description of the two men's relationship in the case depends on which one is doing the talking.
In his testimony, Rochelle said Bickel withdrew from the case in late July under "mutual agreement," after Rochelle voiced concerns that the case was languishing and needed more attention. In an interview with the Observer, Bickel said he took himself off the case "after we decided we didn't want to represent him. I'll say nothing further than that...He has told people he's going to get us."
Rochelle also testified that Bickel & Brewer owes him more than $300,000 stemming from a contract the firm signed with him. "I'm still pursuing my claim," Rochelle said. "I have not filed a lawsuit."
Tension between the two men may explain some of Rochelle's willingness to testify about Marshall's trips to Cowboys games on Bickel & Brewer's dime. Bickel himself says he simply can't remember if Marshall visited the firm's luxury box. "If he did attend a game or not I can't remember. I don't go to all the games. He may have gone when I wasn't there. I can't recall."
When Judge John Marshall learned that Chris Weil and John Barr were gathering information about his relationship with Bickel & Brewer, he was furious. TRT's lawyers pulled much of their evidence together for the hearing for a new trial in the weekend before the August 4 hearing. They even flew Carine Evers back to Dallas from Brussels, Belgium, where she was taking a three-week vacation.
Marshall had recused himself from the Berins case on July 31 and signed a formal order doing so on August 1. It turns out that Weil and Barr had filed their supplemental motion for a new trial--the one with the series of alleged ex parte dealings--on July 31 as well. Their motion clearly blindsided Marshall. On the morning of August 4, the judge held his own hearing. He wanted to make a statement about what he called the defendants' "untimely" supplemental motion.
It was a blistering lecture.
Marshall pointed out that he had withdrawn from the case days earlier.
"Well, you know," said Marshall to Corpus Christi attorney Christopher Bandas, "I don't know how you guys practice law down in Nueces County, and, frankly, I don't care, but I'd just sure like to think that my colleagues on the bench down there are not subjected to this kind of accusation and this kind of innuendo on a random, daily basis with untimely filed motions spread out in the public record.
"You ornaments of the republic are going to have a fun plane ride back to Corpus Christi, where you can explain as best you can--and I'm sure you'll have a good explanation by the time you get back there--just why the court recused itself."
Just getting a judge to hear the motion for a new trial in Berins was a herculean task. Once Marshall recused himself, the case went to the office of Judge Pat McDowell, presiding judge of the First Administrative Judicial Region. McDowell has issued a standing order that allows Dallas County judges in the cases of recusal to reassign cases at their local level. According to a letter in the court files, Marshall sent the case to 162nd state District Judge Bill Rhea (also the local administrative judge), who then assigned the motion to be heard by 44th state District Judge Candace Tyson.
But lawyers Weil and Barr objected to Tyson, based largely on her close ties to Marshall. The two judges have offices next door to each other, and are known to be clubby around the courthouse.
The motion came back to McDowell, who quickly assigned Visiting Judge Ted Akin to hear it. And so the hearing began at 3:30 p.m. on August 4. It took nearly five hours for a series of witnesses to testify to the improprieties alleged by the attorneys for TRT.
By 8:15 that night, Eric Calhoun, a lawyer with Bickel & Brewer, was urging Akin to "count the law" in the case. The defendants, he said, "are trying to distract from the merits in this case to get the court to vacate a judgment that was entered upon a voluminous record after numerous arguments that were briefed in these motions...I think the court that takes a look at these papers will find that there's nothing in there that would suggest that Judge Marshall's ruling was improper on the merits of this case."
Barr and Weil were allowed to wrap up.
"Judge, this does not pass the smell test," Barr said. "The problem here is that this thing stinks, and that's all there is to it, and it's the only way to characterize it. It stinks. You don't have to make a finding as to why you set this thing aside. Set it aside. Clean it up. You owe it to the citizens of this county, and you owe it to this man, and (pointing next door to Marshall's chambers) you owe it to the man next door."
By 8:28 p.m., Akin had ruled.
"I think justice requires for me to set aside this judgment, and that's what I'm going to do. We'll start all the way over."
Two weeks after Visiting Judge Ted Akin signed the order for a new trial in Berins, the justice machine remained in high gear. John Bickel says his firm will soon file a writ of mandamus with Judge Pat McDowell, asking that the new trial on Berins be assigned to Judge Candace Tyson's court.
Marshall, fully recused from the case, has moved on to other assignments. He declined to be interviewed at length about the ex parte allegations. "The Code of Judicial Conduct prohibits me from commenting on a pending case in another court, even one from which I have recused myself," he said last week by telephone. But when asked if he told Evers she could get the watch back after the Berins trial was over, Marshall said, "Ma'am, that is a goddamn lie.
"I have 800 other cases to take care of," he says. "It's not like I don't have something else to do besides messing with this case. It's not relevant to me anymore. I don't care about it anymore."
But in the next breath, Marshall says, "I recused myself on August 1, without any knowledge of a motion for recusal being filed. After I've recused myself from this case, why do they go and beat me up?"
Indeed, for a man who says it is inappropriate to comment, Marshall is bubbling over with talk. "This is a situation where some people who were interested in winning the case didn't like the outcome and decided to go after me. They don't care what happens to the judge in the process. That should raise a red flag for you. Does it?"
Weil declined to be interviewed for the record about the case.
John Bickel and his paralegal, Suzanna Proctor, see the case in about the same light as the judge--essentially, that their opponents in court are little more than sore losers who failed to make their case and now want another chance. The watch that Proctor gave to Evers "had nothing to do with the case," Bickel says. "Carine [Evers] and I are friends. What you typically send for a graduation is a gift."
Besides, Bickel insists, if his firm really wanted to influence the outcome of a case, they wouldn't do it with a free ticket to a ball game, or a trinket for a court clerk. They would have written Marshall a fat campaign check. "Which we didn't," he says. That much is certainly true, according to Dallas County election records. In campaign spending reports filed since 1981, Marshall does not reflect any contributions from Bickel & Brewer or any individuals employed by the firm.
And what if you press Proctor and Bickel to see even the possible appearance of wrongdoing in giving a court employee an expensive gift, or in meeting a presiding judge in a case behind closed doors with no other attorneys present?
"I just have to disagree with that," says Proctor. "The courthouse is, well, you practically live there. You'll see attorneys and clerks hanging around and talking to a judge. Every lawyer does it."
And Bickel--who says that the tickets to ball games, dinners, or little gifts to a clerk are simply ways to show a judge extra appreciation--bristles at this whole issue of peddling influence. "If there's a possibility of swaying the judge, of course it would be wrong. But these things are done regularly by law firms, and I don't think it has any influence over how a judge rules."
"To be honest," he says, "the good judges I want to keep. They sacrifice to be a judge. They can make a lot more money in private practice, but they give that up to be public servants. If you can do something small for them every once in a while, I don't see anything wrong with that. I don't see it as anything more than a favor for a hard-working public official.