By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
There are a legion of critics, though, whose cumulative complaints have turned Marshall's performance ratings in the annual Bar poll into the worst in the courthouse. Some 58 percent of the 685 lawyers responding said Marshall does not correctly apply the law; 51 percent disapproved of his performance overall. Just 50 percent think he's impartial. In a recent preference poll, 60 percent of the lawyers who voted said they prefer his opponent, Mary Murphy, a former partner in Jenkens & Gilchrist.
"The thing I need in court in any case is for the judge to apply the law fairly and with reason. Marshall gets reversed [by appellate courts] half the time, so it's like flipping a coin," Baron says. Marshall's habit of having his cases overturned "adds layers of expense and delay" for both sides, he says, "and it's been that way for a long time." Marshall cites statistics saying he is overturned less: about one-third of the time.
He had 16 reversals in 1999, according to a review of appeals listed on an appeals court Web site. Nearly all were for taking the decision away from the jury once the trial was under way and deciding cases himself -- "directed verdicts," in legal parlance.
Typical, says attorney Mary Alice McLarty, was the case of Maria Martinez, a nanny who was beaten by an irate Park Cities parent. According to court papers, Martinez had worked for Mark and Julee Butler for six years when, one day in 1995, Mark Butler came home in a rage. He cursed her, threw her purse at her, grabbed her around the neck and hit her with a hard plastic golf club, then kicked her out the front door with his foot.
A jury found Butler guilty of misdemeanor assault and sentenced him to two years of probation. When it came to filing for civil damages, McLarty says, the case came down to a question of whether the Butlers had furnished the nanny a safe workplace. The lawsuit alleged that Julee Butler, an executive and the main earner in the family, "was negligent because she knew or should have known" that her husband had an "uncontrollable temper" and "violent propensities." About $100,000 in insurance money was at stake.
She knew how upset her husband was that afternoon, and that he had only a few weeks before yelled at Martinez for stopping by her own house while she was watching the Butler child, the suit alleged. At the trial in October 1998, McLarty says the judge assured her several times that she had made her case sufficiently enough that the seated jury should be allowed to render a verdict. In civil legal terms, it's called making a prima facie case. "He told all the lawyers several times in his office that we had met our prima facie burden of proof," McLarty says.
On the fourth day of the trial, though, Marshall issued a directed verdict, ruling, in effect, that there was no matter for a jury to decide. He sent the jury home and ended the case. "He just poured us out of court," she says. "The jury just sat there with its mouth open."
Legally, she says, the ruling held that there was no way Julee Butler could have known her husband would be violent. "Afterward, Marshall takes us all back in his chambers and tells my client she'd better move and watch out for this man. He tells the wife she needs to get away from that man; she and her children are in danger."
Those thoughts seemed at complete odds with his ruling, says McLarty, who says she has only been tossed out in that fashion once in 46 trials. "It was nonsensical."
Marshall says he has no recollection of either telling McLarty she had made her case, or of telling the parties anything in his chambers. "I've never made a guarantee to a lawyer in my life," he says.
As for directed verdicts, he says he's issued them in about 15 percent of his trials. "When a case doesn't go right for a lawyer, there's always someone to blame," he says.
McLarty says it almost pains her to speak out against the judge. "He married my husband and me in '96," she says. "I considered him a friend. But I can't ignore something like this. That lady was ready to get some justice, and what he did was just wrong." The case in the end was not added to the list of Marshall appeals because her client decided not to continue to fight, McLarty recalls.
These kinds of stories have been bouncing around for years at the granite conference tables of the city's white-shoe law firms, the 200-plus-lawyer partnerships that handle disputes between businesses, or defend then against such things as consumer claims. A lawyer at one such top 10 firm, declining to speak by name or to have his firm identified, says Marshall is "so high-minded, so iron-clad and rigid, nobody agrees with him. He thinks he is better than everyone else. He puts himself up on a pedestal and tries hard to act smarter than everyone else, which he is not. That's why he's insufferable."