Bad Judgement

The lawsuit was just one of hundreds pending before State District Judge John McClellan Marshall, a nasty but unremarkable business dispute over a fee from a real estate deal. Its title--Berins vs. TRT Holdings--betrayed little of the acrimony involved. Each side dug in, refusing to settle their differences, and it seemed likely that a jury would have to pick a winner.

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.

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Holly Mullen