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September|October 2003
Mock Trial's Big Dance By Brian Montopoli
Pete Rose's Mock Trial By Joshua David Mann
Sue Yourself By Dashka Slater
To Be Continued By Sam Goodstein
No Boundaries By Tyler Maroney
The Prudent Jurist By Susan Koniak
Cases & Controversies

To Be Continued

By Sam Goodstein

THOSE WHO LOOK TO THE LONE STAR STATE for political intrigue have had a good year. In one of his final acts as House majority leader, Dick Armey tried to insert a media ownership rule into an arms bill that seemed to single out The Dallas Morning News for punishment, reportedly because of the paper's decision not to endorse his son's failed Congressional bid in Denton County. Then, last spring, Democrats in the Texas state legislature fled to neighboring Oklahoma to avoid giving Republicans the quorum they needed to pass a partisan redistricting plan. Both moves are fine examples of the bipartisan wile of Texas politicians. But when it comes to unsavory politicking, some of the most adroit manipulation happens on the local level. Consider the political favors done for Wyeth, a $60 billion pharmaceutical company based in Madison, N.J.

In the mid-1990s, American Home Products (as Wyeth was then called) marketed a weight-loss cocktail known as fen-phen. After research demonstrated in 1997 that fen-phen increased the risk of failing heart valves, causing blood that was supposed to be pumped into the body to dribble back into the heart, the manufacturer quickly pulled it off the shelves. But the damage had already been done. The ensuing federal class-action lawsuit brought by fen-phen users resulted in a $3.75 billion settlement with the company. A number of plaintiffs, dissatisfied with the settlement, opted out and pursued separate litigation against Wyeth in Texas state court.

Wyeth was represented by an outstanding legal team, including the Washington, D.C., powerhouse firm Arnold & Porter. Faced with the prospect of another massive payout, however, Wyeth took no chances. It sought additional counsel in the form of Gabi Canales, a solo practitioner from Alice, Tex., a sleepy town about 120 miles south of San Antonio. Canales, a 1998 graduate of nearby St. Mary's University Law School, had a diverse practice, doing plaintiffs work, estates, wills, and the like. But she had never worked on a major product liability case or one involving complex scientific evidence. Like many fresh-faced young attorneys, she was eager to tackle a big case. "I haven't been practicing for very many years," she explained, "so I wanted whatever experience I could get to diversify my practice."

NOT EVERYONE APPROVED OF HER DECISION to join the Wyeth team. Canales, as it happened, held down another job—representing the residents of Alice as a Democrat in the state legislature. About to depart to Austin for a four-month legislative session, Canales's first legal maneuver on behalf of Wyeth was to ask the judge on the case—her father, it turned out—for a six-month continuance. When Judge Terry Canales recused himself, citing an obvious (and, one might have imagined, foreseeable) conflict of interest, the matter was left to be decided by Judge Mike Westergren. Except that in reality, it wasn't Westergren's call to make: Texas has a special provision that grants automatic continuances to any lawyer who is also a state legislator. According to the state's legislative continuance rule, which dates back to 1929, state courts must delay proceedings until 30 days after the end of the legislative session—in this case five months from the date of Gabi Canales's request.

The legislative continuance was devised as a way to satisfy the competing demands on a part-time legislator's attention. The Texas legislature meets for a maximum of 140 days every other year, and its members are paid an annual salary of $7,200. To make a living, most legislators must have a career outside politics that also places demands on their time and energy. How could a Texas lawyer hold clients if she couldn't assure them that she could meet her responsibilities while away serving in the legislature?

Nine other states, including California, New York, Michigan, and Massachusetts, operate full-time legislatures along the lines of Congress, but most employ part-time "citizen legislatures," like that of Texas. In the South, where there isn't a single full-time legislature, the part-time legislature is often invoked as a symbol of limited, restrained government. "With a full-time legislature you don't have the knowledge of industry and business that you have with a citizen legislature," argued Richard Saslaw, a Virginia state senator. "Part-time legislatures have more knowledgeable members, so they don't have to rely on staff or lobbyists."

Others disagree. In the era of the "new federalism" and devolution of power to the states, a part-time legislature, they say, cannot meet the growing demands of 21st-century governance. "With the growing size, importance, and complexity of state governments, full-time legislators are becoming imperative," said Steve Tobocman, a state representative in Michigan's full-time legislature.

ARMED WITH TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION 30.003, Canales walked into court in December 2002 and postponed one of the fen-phen litigations for over five months, a feat she duplicated in two other fen-phen cases. At a pretrial hearing, the attorneys for Wyeth explained to the court that Canales would make a "significant, important contribution" to the case, noting her "standing in the community"—undoubtedly a good thing, but rarely a prerequisite for defending a product liability case. "You have a case that is barreling up to trial, where the lawyer-legislator is added to the case, where they haven't participated in discovery," Bruce Flemming, a lawyer for the plaintiffs told Texas Lawyer. "I think it is just a sin."

The plaintiffs appealed the continuance, and the Texas Court of Appeals derided Wyeth's maneuvering, citing the company's "questionable conduct" in using legislative continuances for "tactical advantage." Ultimately, however, the plantiffs' appeal failed; since the statute didn't allow judicial discretion, the appellate court's hands were tied. The delay forced the plaintiffs, many of whom have significant medical bills thanks to fen-phen's side effects, to wait months for their day in court.

"That's the system in Texas: One day you're a country lawyer with your shingle out, then you get elected to the legislature and the next day you are a high-priced product liability attorney," said Craig McDonald, the director of Texans for Public Justice. McDonald's group is an Austin-based nonprofit that advocates political reform, consumer protection, and corporate accountability. "This is blatant stuff," he said. "Canales had no experience at all relevant to this case. The relevance was that she was a newly elected legislator."

But Canales was not the only legislator to procure legislative continuances for Wyeth. In the spirit of bipartisanship, the company also hired Representative Ruben Hope, a Republican from Conroe, to postpone two other fen-phen trials. And the company wasn't alone in using this tactic. Over the last few years, major product liability cases against breast-implant manufacturers, asbestos companies, and Firestone Tires have been put on hold in Texas. While it is difficult to quantify the effect that delay has on a product liability case, it is often used to put financial pressure on plaintiff's attorneys, who typically work for a percentage of any damages awarded by the court. And though Canales may truly believe in the virtue of Wyeth's cause, she was undoubtedly attracted by her compensation. According to McDonald, "the rumor on the street is that continuances go for somewhere between $20,000 and $30,000 each." Texas law doesn't require disclosure, and how much Canales was paid is not a matter of public record.

Texas is not the only state that allows legislative continuances, nor is it the only state that gives judges no discretion to reject them. More than 20 states allow such continuances. Iowa comes closest to Texas in effectively blocking judges' discretion over them. But abuses of the rule are most egregious in Texas.

THIS SUMMER, HOWEVER, THERE WAS A SMALL STEP FORWARD in the Lone Star State: the passage of an ethics reform bill. The new law requires, among other things, legislators to report their requests for legislative continuances, including the name of the party represented and the date on which the legislator was retained, although not the amount paid for the service. The information must be passed on to the Texas Ethics Commission within three days, a provision that will make it easier to keep track of abuse. But because the bill requires the disclosure of information that is already known—the parties to a case and their lawyers are matters of public record—few observers expect it to have much political force.

Canales's own behavior might have some political fallout, but even that remains uncertain. Her part in the Wyeth case secured her a place on Texas Monthly's Top 10 Worst Legislators list, an impressive distinction for a first-term representative. But Canales is politically well-connected: Her father remains a district judge and her mother is county chairwoman for the Democratic Party. Canales is convinced that her constituents don't care about, or pay much attention to scandals like the continuance issue. "They are not interested," she said. And she might be right: Her father, Terry, was himself ranked among the 10 Worst Legislators while serving as a representative in 1975—and has since been elected four times to serve as judge for the district.

Sam Goodstein is an attorney working in Santa Monica, Calif. His writing has appeared in The Los Angeles Times.

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