How to Beat City Hall
Jury verdicts against the city of Houston don't come much bigger than the one awarded last month to Barbra Piotrowski, the striking former beauty-queen athlete who is the paralyzed victim of a notorious 1980 shooting.
Depending on who's doing the counting, the city is facing the prospect of paying anywhere from $28 million to $148 million. Even if you use the lower figure, the verdict represents an amount almost equal to what the city has paid out in lawsuit claims for the past three years combined.
The final amount will be determined by U.S. District Judge David Hittner, who has yet to rule how much prejudgment interest should be added to the jury's $22.3 million award.
The jury found January 20 that the Houston Police Department had received a tip that Piotrowski's former lover, health-spa tycoon Richard Minns, was looking to hire someone to murder her. Officers did nothing to warn her -- in fact, two of the officers involved were moonlighting for a close associate of Minns -- and five weeks later, a bungled slaying attempt left Piotrowski, now 44, in a wheelchair for life. Minns has never been charged in the case and now lives in Europe.
The tale has spawned a best-selling book, a made-for-TV movie starring Shannen Doherty and a string of lawsuits.
The city is the latest defendant, and its performance in court so far has been inauspicious, to say the least. And although City Attorney Gene Locke professes absolute confidence the award will be tossed out or significantly reduced on appeal, the job done up to now by his lawyers inspires more skepticism than awe.
Hittner regularly reprimanded city attorneys throughout the suit; once the case got to trial, jury members were not only baffled by the city's inept case, they were angered as the defense openly cooperated with attorneys for Minns. The jurors' anger grew as the city's closing arguments included a finger-pointing tirade against the wheelchair-bound plaintiff, who received hugs after the case from several jurors.
How do you turn an attempted murder 18 years ago into a possible $148 million hit against taxpayers? It takes just ten easy steps, the city of Houston way:
1. Don't take the case seriously. Never make a legitimate settlement offer, don't hand the case over to an outside law firm and let two junior attorneys represent you.
Piotrowski's attorneys, Steve Sumner and Marilyn Lahr of Dallas, say Locke's office made exactly one settlement offer -- for $5,000. Seeing as their suit was asking for $50 million, the lawyers were unimpressed. "We offered to settle early for $12.5 million, and that was our first offer -- we would have come down from that," Sumner says.
"They sent us a letter saying they had paid out less all last year in settlements than the $12.5 million," Lahr says. "But you have to wonder how many of those settlements involved a woman in a wheelchair."
Locke vehemently disputes that the city didn't take the suit seriously. He says the city "took a couple of runs" at settling but the plaintiffs never wavered from the $12.5 million figure.
The city never considered hiring an outside firm ("We have limited resources," Locke says) and assigned assistant city attorneys Judith Sanchez and Andrea Chan to the case. Both graduated from the University of Houston Law Center in 1990, making them the equivalent of associates in a large law firm. (The city will hire outside specialists for the appeal, Locke says.)
Sanchez, 37, and Chan, 32, are both part of the defense litigation department, comprising 11 of the city's 100 attorneys. Locke says Sanchez has had "lots of success" handling civil-rights suits similar to Piotrowski's in her five years working for the city; he says Chan has specialized more in research and appellate issues since being hired in September of 1992.
Locke vigorously defends the pair's efforts but doesn't answer directly when asked if they were the best lawyers available to defend the suit. "These are the people who were assigned to the case and they were the appropriate ones to deal with it," he says. "Once we found we were definitely going to trial, we put another lawyer on it. That's not unusual."
Sumner, 51, and Lahr, 37, aren't strangers to complex litigation. Sumner, in fact, has almost specialized in civil and criminal suits stemming from high-profile killings. He was one of T. Cullen Davis's attorneys when the Fort Worth millionaire fought murder and wrongful-death charges in the 1970s and 1980s, and he represented Ricky Kyle, whose 1987 conviction for involuntary manslaughter in the death of his father received heavy publicity in Los Angeles and was chronicled in Ulterior Motives, a true-crime book by Suzanne Finstad.
Finstad later wrote a book on the Piotrowski case, and introduced Sumner to Piotrowski, who now lives in California and was looking for an attorney to handle the civil suit against the city. Other lawyers thought the case a longshot, but Sumner decided to take a chance on it. He hooked up with Lahr, a business litigator who says she left mega-firm Fulbright & Jaworski four years ago because "I was looking for cases with more principle behind them than two corporations fighting."
2. Annoy the judge even before the trial starts.
Hittner has long displayed all the imperiousness that comes with a lifetime appointment, so it's not news when he castigates an attorney. Chan and Sanchez, however, came in for special treatment.
During pretrial hearings, Hittner snapped at Sanchez for not being familiar with a court case dealing with expert witnesses. "You better become aware of that. It's a major, major case in the United States right now," he said.
In written orders, he called the city's attorneys "disingenuous" for arguing they were surprised by some of the plaintiff's filings. And when the city filed a 121-page document objecting to 237 of Piotrowski's 238 proposed evidentiary exhibits, he made his feelings clear while keeping his language restrained: "After examining all of the objections, the court determines that many, if not all, are strictly 'form' objections comprised of boilerplate language," he wrote. "As such they are a totally unrealistic attempt to place an unacceptable burden on this court and opposing counsel, and border on the unprofessional."
He ordered the entire list of objections to be stricken from the record.
Locke won't discuss how the 121-page document got filed, including who, if anyone, was supervising the trial attorneys at that point.
3. Go to trial even if you are unprepared.
The city apparently thought it had stumbled onto a gold mine when Piotrowski's lawyers filed their final outline of the case. The document, called a "pretrial order," is partially designed to limit what arguments and evidence lawyers can present to the jury. Piotrowski's initial filing did not include a clear statement that she was seeking damages.
"They thought they had us over a barrel because our pretrial order was not in as good a shape as it should have been," says Lahr. Sumner had planned to write the order, but says he handed the assignment to an associate when his mother was hospitalized.
Lahr says the city refused a request to postpone the trial when the error was discovered. "They said our pretrial order didn't include damages, so they wouldn't agree to a continuance," she says. "We were stunned -- we knew they hadn't taken depositions of our expert witnesses yet, so we knew they weren't ready. But they wouldn't agree to a delay."
Unfortunately for the city, Sumner and Lahr convinced Hittner to allow them to file a new version of the document, clearly stating the intent to seek damages. Hittner noted that the proposed jury charge in the original order did include a question about damages, so he found that the subject had been sufficiently raised. The city had lost its gamble.
A few days before the trial, it was the city that was seeking a delay. And this time it was the plaintiffs who turned down the request, forcing the trial to go on as scheduled.
4. Annoy the judge during the trial, in case you haven't annoyed him enough already.
As the trial date approached, Locke assigned a more senior attorney to the case, Rebecca Schlosser. (Court documents show her formally entering the suit only days before the January 6 trial date; Hittner told jurors after the trial that Schlosser had been assigned the case only two weeks before the trial. Locke says, however, that she had been working on the case since fall 1997.)
A trial lawyer for 15 years, Schlosser had recently returned to the city attorney's office after moving for a time to Florida. Her resume was not available by press time.
Schlosser's luck with Hittner was little better than her colleagues' luck had been. During testimony about Piotrowski's lost earning capacity, Schlosser told Hittner that the plaintiff's plans to become a doctor would have been affected by a moratorium on licensing doctors by the American Medical Association. A skeptical Hittner ordered her to show him proof of such a moratorium; the next day, according to Lahr, Schlosser penitently explained that she had read about it somewhere, but couldn't find any documentation.
Twice during the trial, Hittner pointedly mentioned to city attorneys the federal rule that allows a judge to hold a lawyer individually responsible for increased litigation costs if he or she has "unreasonably and vexatiously" prolonged proceedings.
Whether he punishes the city or any of its lawyers will not be known until he rules on the plaintiff's motion for sanctions as part of a final judgment. For its part, the city hopes Hittner will enter what's called a "judgment notwithstanding the verdict," in which the award would be slashed or erased.
5. Make sure the jury gets the impression you have been hiding evidence.
Most embarrassingly for Schlosser, the jury saw a running argument with Piotrowski's lawyers that made it seem clear the city was being less than forthcoming, and that Hittner wasn't happy about it.
Piotrowski's lawyers had repeatedly asked, during pretrial discovery, for any policy handbooks, rules manuals or other written material that contained HPD guidelines. The city's lawyers insisted none existed.
When an HPD officer referred to a "rules manual" as he testified on the stand, Lahr jumped up and told Hittner the city had said there was no such manual. Schlosser replied that Lahr had misunderstood the testimony. The next day, as the officer was cross-examined, the scene repeated itself.
When a second officer later referred to a rules manual, Lahr got him to describe it -- a five-inch binder, the officer said, with "Rules Manual" printed in large letters on the cover.
A peeved Hittner ordered Schlosser to look again for such a document, and -- on the last day of trial, Lahr says -- Schlosser brought one into the courtroom. Hittner glared ominously but said little; jurors, of course, had seen the entire series of exchanges.
Locke won't comment on the rules manual snafu. But privately, city attorneys point the finger at HPD, saying they had asked repeatedly for the document and had been told it did not exist.
6. Be sure the jury sees you cooperating with the person commonly thought to be the villain of the piece.
"The real devastating thing that happened during the trial -- and from our standpoint it was a gift -- on three separate occasions, the city's attorneys were seen cooperating with Minns," Sumner says.
Attorneys for Minns, along with a private investigator, attended each day of the two-week trial. Jurors saw the attorneys hand documents and other evidence to the city's lawyers.
Just to drive home the point, Sumner asked Piotrowski about it as she testified. She said she had seen the attorneys huddling in the courtroom; then, as tears started to well up, she said it made her feel that Minns was still after her, and still had enough influence with the police and city attorney's office to affect events.
In an interview after the trial, Piotrowski said she was appalled when she saw the city teaming up with Minns's attorneys. "Never in a million years would I think they'd be working with Richard Minns," she said. "This is the very person they should be indicting. I have to say that seeing that was one of the bottom experiences of my life. I just didn't expect it."
After two such incidents of apparent cooperation, Lahr says, Hittner admonished the city to break off contact. The very next day, she says, the city introduced a deposition that came from Minns.
"(Hittner) was so furious he had to take a five-minute break," she says.
Attorney Dick DeGuerin, who is representing Piotrowski in a civil suit against Minns, says it was "stupidity" for the city to cooperate with the former boyfriend. "Apparently the city got into bed with the wrong person," he says. "The way Richard Minns is, he's charming and persuasive, and he apparently got to the city somehow. But his theories and his evidence are always screwed up. He's an evil person, and there's nothing redeeming about him."
(DeGuerin says he passed on representing Piotrowski against the city because of the statute-of-limitations problem. "If they can get past that," he says, "it's such a compelling case." He's not surprised by the victory at the jury level. "Sumner's a very good lawyer, and the lawyers in the city attorney's office are not the best litigators in the world," he says. "They're generally younger lawyers, and when they come up against a really good lawyer they're likely to come in second.")
For all the trouble its lawyers created by cooperating with Minns's attorneys, the city reaped little reward. The deposition from Minns's lawyers, introduced in an effort to impeach Piotrowski on a minor point, made a terrible impression on the jury.
Steve Sands, a computer salesman who was the jury foreman, says the eight-member panel all but dismissed out of hand the deposition, in which Piotrowski testified as to whether she knew Minns was married when they moved in together.
"That was very damaging to their case -- the deposition was unsigned, it was not sworn to, there were pages missing," he says. "We were asking each other why the city would introduce something like that.... Can you classify it as incompetence, or if not that, then as a last-ditch desperate effort?"
7. Play for the jury a video that's incredibly sympathetic to the other side.
The deposition wasn't the only piece of Minns-generated evidence that backfired. The city also introduced a video of a news report about the shooting.
A key argument for the city -- one that Locke expects to win with at the appellate level -- was that Piotrowski had waited too long to file her suit. The statute of limitations forces plaintiffs to file a suit within two years of learning they have been damaged, and the city argued that Piotrowski had known in 1991, four years before filing suit, that the police were aware of the murder plot.
As proof, they offered a video featuring a joint interview with Piotrowski and Suzanne Finstad, who was promoting her book on the case, Sleeping with the Devil. On the tape, Finstad mentions hearing that the HPD didn't act on the tip.
Unfortunately for the city, the news report was yet another gift for the plaintiff. It featured footage of a young, athletic Piotrowski before the shooting, laughingly water-skiing and playing other sports. The contrast to the wheelchair-bound woman in the courtroom was obvious. And just in case a juror would cynically think of her as a professional victim, the tape offered yet another counterpoint -- shots of a determined Piotrowski using specially designed equipment to participate in races for paraplegics.
"That videotape included a lot of stuff we could never have gotten in ourselves as evidence," Sumner says. "There were just striking pictures of our client before the shooting."
"We could hear it being played in the jury room during deliberations, and we just went 'Yesss!' " says Lahr.
"The trouble with a trial is, you can't really present a summary of your case -- it's just one witness after another," says Piotrowski's husband, Jerry Petrofsky, an appellate lawyer who also testified as a medical expert in the trial. "This tape laid out the case in a nice tight summary for the jury to see."
"I can see why Sumner was delighted to have the tape in evidence," says Sands, the only juror who could be contacted. (Hittner refused to release a jury list; Sands's name became public when he spoke with reporters the day the verdict was reached.)
The video was important to jurors not only because of the pictures. City attorneys had argued forcefully that the tape was a "smoking gun" that proved Piotrowski had long been aware of the facts in the case. Jurors thought otherwise.
"(Finstad) is on there talking about 'there was rumored to be a report (that HPD knew of the murder-for-hire plot),' and Barbra Piotrowski is sitting next to her and doesn't really acknowledge it," Sands says. "We said, 'How are you going to use that to show the statute of limitations?' There's rumor and innuendo, but all the facts in the case are in the control of the city of Houston, not Piotrowski. The city of Houston controlled (access to) all the facts, and that's the best they can come up with?
"One juror said, 'You mean that's the best defense the city can bring forward -- this tape that does not say what they say it does?' " he adds. "They hung themselves with that."
8. Even as your case goes south, refuse to entertain settlement offers.
"We went up to (Schlosser) during trial and said we'd be willing to reopen settlement talks," says Lahr. "But she just said she had a reputation for not settling. I said, that's fine, but hey, there's a freight train coming down the track and it's headed right for you."
"We kept waiting for a smoking gun to show up," Sumner says. "We thought there had to be something more than what they were putting on."
Clearly trying to put pressure on Locke to settle, Sumner questions the city attorney's accountability with taxpayers. "If it had been Vinson & Elkins handling the case, and if they had told the city it had only $5,000 worth of total exposure on the case, then V&E would have been looking at a malpractice lawsuit. And if V&E hadn't gone to the client during the trial to say things were going badly and there might be more exposure and maybe we should consider settling, they again would have faced a malpractice claim."
Locke defends the decision not to settle, saying the city was aware it might have to endure a loss at the trial level before being vindicated on appeal.
"We always knew the facts of the case were going to be very unfortunate as to Barbra Piotrowski, and very ugly even," Locke says. "So we knew that if we got to a jury, there would be significant exposure. That was part of our analysis. You put one level of resources on the trial level and if you fail you put significant resources on the appeal."
It seems like a huge roll of the dice, betting millions of dollars on a panel of appellate judges. Locke disagrees. "I don't think it's a roll of the dice; I think it's recognizing we have limited resources and we have to manage things correctly.... Ultimately we'll prevail."
9. In your final argument, present the image of a heartless government entity putting the blame on a paralyzed woman.
Schlosser apologized several times during her final arguments for any mistakes that might have been made by the city's "two young attorneys," as she called them. But she hardly helped matters herself when she tried to drive home the point that the statute of limi-tations barred the lawsuit.
Referring to Piotrowski as "she," Schlosser pointed at the plaintiff and hammered away. As Sumner, Lahr and Sands remember it, Schlosser was pointing and her voice was rising as she said Piotrowski had waited too long: She can't come in now and file suit, they remember her saying. She should've had her case heard before now. She should have fled the city back in 1980 if she thought she was in danger.
"Barbra started crying during this, and she turned away, she was just shaking," Sumner says. "While it all was going on, I'm thinking, 'I'm mad at this, but boy, it's great for us.' Three of the jurors told us later that they were angry about it." Indeed, several jurors hugged Piotrowski after the verdict.
"It still makes me sick just to think about it," Piotrowski says.
Lahr's job on final arguments was easier. "At least I had a city to attack," she says.
10. After disaster strikes, still refuse to settle.
After two days of deliberation, the jury came back with a $22.3 million award. The amount included $4.75 million for physical pain, $3.8 million in past and future medical expenses and $5.2 million in past and future lost earnings. As a government entity, the city could not be hit with punitive damages.
Hittner has yet to rule on just how much prejudgment interest he will add to the award. Sumner and Lahr insist the judge can calculate interest from as far back as the 1980 injury; Locke is just as adamant that the interest will only accrue from the time when Piotrowski first learned of the alleged wrongs done by the city.
While Locke says he is open to settlement offers, it sounds perfunctory. "We are not open to settlement on terms suggested in (Sumner's) letter" sent after the trial, which uses the verdict as a starting point for negotiations.
Sumner, perhaps worried about his chances in the higher courts, is eager to talk to city officials. He says he wants to include a council representative in the discussions, and he makes veiled threats that he'll be less inclined to settle if appeals drag on.
"We'd like to settle the case. There's a fair number that's reasonable for both sides, and it's not $5,000 and it's not $148 million," he says. "There are things we can do now that are fair and reasonable that won't be available down the line, things like structured settlements, where it would be a budget-type thing for the city, stretched over several years. That won't be there if we win on appeal, because we are going to want immediate payment."
(Piotrowski's lawyers asked Hittner this week for $6.6 million to $8.8 million in fees. They are representing Piotrowski on a contingency basis, and say they have fronted close to a million dollars in expenses.)
Any decision to settle or appeal will soon be out of Locke's hands -- he's headed to the downtown law firm of Mayor, Day, Caldwell and Keeton, and leaving the Piotrowski case to his successor.
He sounds absolutely sure his office's handling of the case will be vindicated eventually when an appeals court erases or significantly cuts the award.
"The facts of the case are very unfortunate, and the natural emotion of a juror would be to want to punish someone," he says. "Unfortunately, the city of Houston was the only defendant in the courtroom at the time.... I think that our position on the law in this case is excellent, and that ultimately we will prevail."
Sumner professes to be unimpressed. "They have poorly assessed this case from the start," he says. "I don't think you can go cavalierly saying, 'We'll win this on appeal,' because the risk you're taking is incredible.... There's not a law firm in the country that would tell a client 'We'll let you take a $50 million to $100 million judgment at trial and then we'll win on appeal.' "
Piotrowski, who expects to enter medical school in the fall, says she is simply trying to put the trial behind her.
"It didn't do anything to enhance my faith in the justice system," she says. "If it wasn't for the judge's open outrage about some of the things that happened and for the jury's reaction, I would've really been disillusioned. It makes me so sick, what happened. It's not one of those things you want to go through life remembering.
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