The Accidental Lawyer

Q: You’re known for both intellectual property and products liability litigation. Let’s start with IP.

A: The first intellectual property case I was involved in was Digital Switch, against Motorola. We made the lawyers leave the room and they worked it out. It turned out to be very, very beneficial for both of them. That led to us getting a call from Texas Instruments. They had a problem and needed a quick resolution, and they heard that I might be able to do that for them in the Eastern District. Their in-house counsel, a guy named Jay Johnson, wanted to know how long it would take to get a case to trial in Marshall. I told him 10 months, and he said, “No, no. It’s a patent case.” [But] our judge rigorously followed a set schedule, and that would be the day it went to trial unless somebody’s mother died the day of jury selection, and then you might get a week. TI filed a case and got a good result, in a pretty short period of time for a patent case.

TI was the only party taking advantage of the Eastern District’s rocket docket, as they came to refer to it. I filed a number of cases for them over the next 10 years. Personal injury was falling off, so it was just kind of a gradual transition from being primarily a personal injury lawyer to becoming more involved in patent litigation.

 

Q: I actually heard from Jay Johnson, and also from Dallas IP litigator Michael Shore, and they give your lawyering skills a lot of credit for making the Eastern District a prime patent forum.

A: Mr. Johnson and Mr. Shore are two of the biggest liars I know. [Laughs] Everything that I ever did in a courtroom I learned from someone else. Fortunately, I had some really great teachers.

 

Q: I also heard from one of your personal injury clients, Julianne Ahlgren Parrott, who says you were so persuasive that the jury wanted to award more than you were asking.

A: I won’t call her a liar. Julianne is the client that every lawyer dreams about having when they’re in law school, and probably represents the best work that I’ve ever done, but also was the most deserving client. She was one of the first female graduates of the [U.S.] Merchant Marine Academy. She was on board a ship off the coast of California [in 1981]. In the engine room there was an explosion. There was fuel oil escaping. She jumped down to the floor to try to turn off a valve, and it exploded about half a turn short.

She dragged another crewman out who later died, and ran through the ship, waking everybody up, alerting them. And she finally collapsed. She had nothing left but her boots. The only thing that wasn’t burned were the soles of her feet, [because of] the boots—and she had long hair, which burned completely off, but it saved her scalp.

She was given no chance to live. She was in a hospital in San Diego for two years of initial treatment. You could not recognize a human being lying on this marble slab. She couldn’t have sheets; she would stick to them. Her mother showed up two days later and never left her side. When we tried it, the jury wanted to talk to the judge, and they were very disturbed that there was no [claim] allowed for mama under the law.

Julie was not only a hero—she got a citation for helping save the ship—she was a hero throughout her treatment. The only place they had to take grafts was her scalp, so every month they would shave her head and take skin grafts, find some place to try to plug them in, wait for that to heal, shave her head again and take more grafts.

When she finally got out of the hospital, she was fitted head to toe with a compression bandage. She goes home to rural Minnesota dressed in this mummy suit, which she’s allowed out of for 20 minutes a day to bathe. She wore it maybe a year after she was out of the hospital the first time.

She is having dinner in a little local café-bar, and her future husband is … working on writing the next great American novel and mostly drinking beer, I think. He [thinks], that must be the burn lady that I’ve heard about. They have a couple beers together and they meet the next day, and he says, “You know, I think I may get some character traits or something I might incorporate into some of my characters in my novel.”

They wind up hanging out together almost daily for the next year. She goes back for more reconstructive surgery, and he shows up about a week later and says, “I’m just too lonely without you. I believe that I’ve fallen in love.” And she says, “Hey, I put that all out of my mind. I don’t ever expect to have a romantic relationship. You’ve never even seen me.” His reply was, “I’ve seen your eyes.”

Her case was a mess. The case got referred to us just two or three days before the statute of limitations ran out, by a San Diego lawyer with the idea of suing the uniform manufacturer—[claiming] it had kind of melted to her body during the fire—as a product defect [case]. He sent me information about the people who manufactured the equipment that had caused the fire. It was the wrong information, so they weren’t sued within the statute of limitations.

I find out that the defendant has only a $500,000 policy, the primary policy. Their secondary policy was a $10 million excess policy, but it was with Mission Insurance, who had gone into receivership and was out of business in California. I don’t really want to own a uniform manufacturing company out of Cleveland, Texas. I made a deal that we would try the case and find out how much of [an award] I had. They would pay their initial policy limits, then hire me to sue the third parties that I had not been able to sue because of the statute of limitations, on a contribution [to damages] theory.

The problem is that it’s an admiralty case, and there are serious questions about what kind of claim you can get contribution for in admiralty [law]. It’s kind of unusual to sue a defendant and then have them hire you to sue other defendants.

 

Q: So you ended up with an award, with interest, of more than $10 million; then moved on to deal with the other defendants to cover that.

A: It took seven years, but we got her a very favorable settlement. And then, lo and behold, about five years after that, a very large check shows up in the mail, payable to me for the use and benefit of Julie. So I start calling California and they say, “Oh, yeah, we’ve been suing Mission’s reinsurance carriers, all foreign companies, for 10, 15 years; and we’ve collected and we’re going to be able to pay about 80 percent of your claim.”

 Julianne is well taken care of.

 

Q: And they got married?

A: And had a child. She was told not to have children. Got a beautiful baby who’s a stockbroker now in Minneapolis.

 

Q: That’s the case of a lifetime.

A: I want to put it this way: I have recovered about $2.4 billion in patent cases. I would trade all of that in a New York minute for having had the opportunity to represent Julie. If I only had one client in my career, and it was her, then I would have felt extremely successful. Obviously, I made a lot more money doing a lot of other cases.

 

Q: And Julianne’s is the last case you handled before starting The Roth Law Firm in 1993?

A: Started solo, then Michael Smith practiced with me for about 15 years. I’ve had several other lawyers at various periods of time. I worked very closely with a lawyer in Houston, Bob Stein. We did med mal cases together. Med mal [basically] doesn’t exist anymore, and Bob’s retired.

 

Q: Yes, you mentioned that personal injury cases declined. Because of tort reform?

A: That, combined with some changes by the court in the way they looked at venue.

 

Q: Luckily, intellectual property was also a good fit for you.

A: Well, in high school my greatest aptitudes appeared to be math and sciences. So I went to [Lamar University]; studied physics and engineering. But I just didn’t fit in with the nerds in the engineering department, all with slide rules slapping at their hips, so I wound up with a liberal arts degree in political science.

I guess you would say that my career as a lawyer is an accident, unlike so many in this profession who grew up with the dream of being a lawyer … or like my former partners, for whom it was a family tradition. I never really intended to practice law, even when I was in law school.

 

Q: So why did you go into law?

A: I graduated from college when I was 20 and realized I had a choice of either being drafted or going to graduate school. One of my mentor professors suggested I go to law school. But I didn’t work very hard. Austin had way too many distractions in the early ‘60s. I could say the best education I got was spending most of my days at Scholz Garten, where, by the end of the evening, people were standing up on tables and starting to debate across the room—people taking different sides on everything under the sun, some of them in the Legislature. Political debates going on and stump-speaking, and people advocating every kind of insanity. But it was an interesting and enlightening atmosphere in Austin.

Anyway, I went ahead, passed the bar, still didn’t want to go into the Army, so I went to graduate law school. One of my professors suggested that I go up and interview as a law clerk with Judge Joe Sheehy, who was the chief judge of the Eastern District of Texas in Tyler. Judge Sheehy was a consummate trial judge. So my first experience actually seeing lawyers try lawsuits was with Judge Sheehy. It looked like that was fun. After a few months, the competitive spirit and ego set in and I started saying to myself, “You know, I could beat those guys.”

 

Q: Did you ever get drafted?

A: I did, but wound up being allowed to enlist in the Reserves in the fall of ‘65. I [had gone] ahead and signed up for eight years to go fly jet planes in the Air Force, and after I’d passed all the tests and was about to be accepted, they found out I had draft orders and they said, “I’m sorry, but you belong to the Army.” Which was probably one of those fortunate things that happen to you as part of fate, because, if the government had given me a jet airplane and bought all the fuel for it when I was 23 years old, I would have stayed until they threw me out or I killed myself.

 

Q: But you got your pilot’s license after you became a lawyer, right?

A: I was an avid pilot. Still am, but I don’t fly my own plane anymore; I’m too old. But I flew my own plane for 25 years, traveling around the country.

 

Q: Back to the Army.

A: I left [for the Army] in January of 1967, and [Judge Sheehy] died a couple of weeks later. That would bring me to the next significant person. Judge Sheehy had influenced the desire to be a trial lawyer, and [U.S. Attorney] William Wayne Justice I would credit with giving me the opportunity.

He tracked me down and gave me a job in the Beaumont office and just turned me loose, trying cases for the government. And he was subsequently appointed to take Judge Sheehy’s place. Then he showed up in Beaumont and took my wife and me out to dinner and essentially ordered me to come to Marshall and interview with the Jones, Jones and Baldwin law firm. I think he probably ordered them to hire me. I was with the firm for 25 years. We tried everything from FELA cases to negligence to workers’ comp, medical malpractice, antitrust, insurance bad faith, anything that was going to court. My first big victory actually was a civil rights case, an age- and race-discrimination case against Missouri-Pacific Railroad.

 

Q: Tell me about that.

A: This was probably, I would guess, 1971. We represented a group of black firemen from the DeQuincy Division of the railroad, down in south Louisiana. The black firemen were required to retire at age 65, whereas the white firemen could work until they were age 70.

The railroad’s position: The age 65 provision was actually proposed by the union that represented the black firemen. [But] the black union had been forced to trade a lower retirement age in order to eliminate long-standing pay and benefits differentials. We got a couple of them reinstated; the rest of them had already reached age 70 and they got monetary rewards.

 

Q: You’ve taken a wide range of cases to trial. Is that unusual these days?

A: It’s unusual these days for a lawyer to get to try any kind of case. In the beginning of my era, trial lawyers were trial lawyers. No matter what kind of case, you may have to learn a different set of laws, but actually trying the lawsuit was the same thing.

 

Q: What do you think about the decline in trials?

A: Well, I’m not sure that if I was honest, you could publish it. I’m very disappointed in the state of trial practice and advocacy at the present time. They used to call it the art of persuasion, but that’s a disappearing art. I feel like I got to enjoy practicing in the golden age of trial lawyers.

The biggest change in litigation in my career is the concept that disputes aren’t to be resolved by juries anymore. They’re to be resolved on technical motions or procedural issues. There are no real trial lawyers being bred in today’s environment. People who claim to be trial lawyers, in my estimation, should be called motion lawyers.

You know, we could probably have Tiger Woods come down and spend about three hours with us and teach us every aspect of the technique of making a chip shot, OK? But that doesn’t mean I could go out and chip like Tiger Woods. I would have to just take that knowledge and then go hit about 10,000 shots, and I might be able, over the long haul, to develop a skill in that area. Being an efficient trial lawyer requires the same thing. Not just the basic knowledge, but the actual repetition and experience of doing it in a courtroom.

 

Q: I can’t end without asking about the asbestos cases. You were involved in the first one in the nation?

A: The case was referred to me as a workers’ comp case. I instead filed it as a product defect case because I had seen an opinion from the 5th Circuit; they had affirmed a lawsuit … that was filed by a guy that I happened to know from Orange, Texas. That gave me the idea to do the same thing. The real work, the real genius behind that, was Scotty Baldwin and another lawyer, Rex Houston from Henderson. They’re the ones that turned that into a $20 million case. While I get a lot of credit for it, it’s only because Rex and Scotty are dead.

But again, I had somewhat of an aptitude for technology. About a year or so after that case—and we were being inundated with referrals for asbestos cases—I walked into Scott’s office one day and said, “Scotty, this asbestos stuff has become nothing but paperwork. I don’t see these cases being tried; there are way too many of them. They’re all going to eventually settle. I came here to be a trial lawyer. You can hire some other people to take care of this stuff, OK?”

So I walked away from the asbestos docket, and of course all of the other lawyers who stayed with asbestos cases are either wealthy men today or they died very, very wealthy men. One of my more intelligent career choices.

 

Q: It seems like the path you took worked out OK.

A: Well, it was best for me, and I can’t complain.

When you represent an individual who’s had a catastrophic injury, you have an opportunity to have a significant impact on their life. If I do my duty, my client will be able to afford decent housing. He’ll be able to send his kids to college. And if I don’t do a good job, then he’s going to be on welfare and food stamps for the rest of his life.

If you contrast that to commercial litigation and patent litigation in particular, there is still a big adrenaline rush from winning a case, and it’s still fun. [But] it’s all about the money.

The joy, the motivating factor for me as a lawyer has been to represent real people.

 

This interview has been edited and condensed.