Good attorneys are important to a successful presentation of a case, but good witnesses are what win most cases. In the same oil and gas case as described in the Trial Memorandum above, my clients and I faced a knotty expert witness issue. One of our best witnesses was an expert oil and gas lawyer who would be highly useful to our side in explaining many of the obtuse oil and gas terms and concepts to the fact finder. However, our opponents realized that our expert witness was a good one and, thus, they filed a motion with the court to exclude his testimony. They argued that our expert would be testifying as to the ultimate issue of law in the case, which is the judge’s exclusive province and not an issue for the fact finder to decide. Inasmuch as that is normally a strong argument in favor of excluding a legal expert, I prepared and filed this pleading to distinguish how the testimony of our expert witness was admissible to assist the fact finder in deciding a key fact issue in the case. The case settled before the judge decided this issue, but he told me after the case was over that he was inclined to overrule the exclusion motion and admit our expert’s testimony.

A Texas state court judge willing to do a favor for a friend can cause unfortunate problems for clients on the opposite side of the friend. One such situation confronted my former partner, Marvin Isgur, and me several years ago. One of our good clients was embroiled in toxic tort litigation in state district court in Houston, represented by a fine firm that specializes in such matters. The state judge in the case appointed a Houston attorney as a guardian ad litem to represent the interests of several minor children who were plaintiffs in the case. Nothing was unusual about that. However, things started to get fishy one day when—out of the blue and without any reasonable basis for it—the state judge approved a $350,000 fee award to the guardian ad litem and, to make matters worse, ordered that the order approving the fees was instanter—i.e., subject to immediate collection from our client. Our client immediately retained us and we quickly discovered that there was more to the story than just the unusually large award—the state judge and the guardian ad litem were in the midst of a torrid affair. We proceeded to file an injunction action in federal court to enjoin enforcement of the instanter order, and we ultimately settled the mess on favorable terms for our client. However, that did not stop the guardian ad litem from breaching the settlement agreement continually over the following seven years, finally leading to her appeal to the Fifth Circuit Court of Appeals of the District Court’s enforcement of the settlement agreement. This is the Fifth Circuit brief that I prepared and filed in that colorful case, and it was a winner.