'Punching a Hole in the Ground with Fingers Crossed'
Oil and gas attorneys on what they love most about their clients: a spirit of resilience
Published in 2020 Texas Super Lawyers Magazine on October 26, 2020
The signature braggadocio of Texas was shaped in large part by the pursuit of oil in an age of wildcatters and handshake deals. While those Old West ways are on the wane, attorneys who practice oil and gas law say an enduring spirit of brashness, resilience and ingenuity is among the reasons they enjoy the industry.
“These are people who’ve taken significant personal and financial risks to obtain what they have,” says Dallas lawyer Chrysta Castañeda, who attended Southern Methodist University’s Dedman School of Law after studying industrial engineering at Kansas State. “If you’re drilling for oil, there’s a good chance you’re going to lose everything—and just a small chance you’re going to win big.”
One of her clients was legendary billionaire T. Boone Pickens. It was 2016, a few years before he died, and Pickens believed a consortium of fellow investors had denied him his share of a lucrative oil transaction. He could have settled the case for a few million. He hardly needed the money, after all, and at 88 he definitely didn’t need the aggravation. But that’s not how he wanted to play things.
“They cut me out of the deal,” he told Castañeda. “Go get ‘em.”
That story is recounted in a book she co-authored, The Last Trial of T. Boone Pickens, released earlier this year. It turned out to be a good roll of the dice.
Castañeda, who had launched The Castañeda Firm in 2014, would ultimately land Pickens and his company, Mesa Petroleum Partners, a $145 million verdict for breach of contract—the year’s 12th-highest jury verdict, according to the National Law Journal.
Pickens had already pumped $1 million into his fight against Baytech and others when he refused to settle. “He was not going to give up on his claim,” says Castañeda, who is running as a Democrat for a seat on the Texas Railroad Commission, which regulates the state’s oil and gas industry. “He was determined to see it through, and that is the difference with men like T. Boone Pickens.”
At Austin’s Scott Douglass & McConnico, Elizabeth N. Miller started out as a legal secretary but never anticipated practicing law until suddenly finding herself a single mother. A year later, she was at University of Texas Law School, earning her J.D. in 1981.
Oil and gas was a natural fit: Miller’s grandfather had toiled as a roustabout for oil crews in Texas and Oklahoma, filling her childhood with the lore of the patch.
“One of his stories was about drilling in the Texas panhandle, and he said the wind would blow so hard that it would take two men to close a wire gate,” she recalls. “I thought he was making it up until I moved to Amarillo.”
Of her clients, Miller says, “You’re punching a hole in the ground with fingers crossed that you’re actually going to find something. And no matter how much information you have, you never really know until you drill a well.”
As it so happened, oil and gas was a key focus at the advocacy firm where she landed after law school, and where she still practices. “I learned a lot about the business and the science that goes with it,” says Miller, who would eventually become the first female chair of the State Bar of Texas’ oil and gas section. “It was like it was made for me.”
Miller loves the intellectual challenge: learning the underlying science to bolster legal arguments. Soon after she started at the firm, she was charged with writing a statement based on a complicated hearing that she hadn’t attended, with evidence concerning concepts of permeability—which she knew little about.
“So I went to see the expert that our side had used and sat him down and asked if he could explain it,” she says. “He taught me things about petroleum engineering and geology, and I was fascinated by that. … I have had the opportunity to work with or against great lawyers and experts, and I have learned that they were my lifeline if I needed to understand something.”
Resilience makes speculators well-equipped to scrape through seemingly unworkable impasses.
“They’re some of the most innovative negotiators you’ll ever meet,” says Kevin Beiter, partner at Austin’s McGinnis Lochridge. “They have the ability to switch from a hostile confrontation to becoming a committed dealmaker, able to think on their feet and shelve their hostility long enough to make the deal. That’s something you don’t see a lot.”
Beiter, who attended St. Mary’s School of Law in San Antonio, nearly chose a geology career but instead exercises that passion through oil and gas law. One of his biggest cases, litigated over several years in the early 1990s, was U.S. v. Bell Petroleum, involving a contaminated groundwater site in Odessa where the EPA was trying to recoup cleanup costs from the parties deemed responsible.
Beiter’s team eventually won a settlement sheltering its client from the significantly larger share of costs that the co-defendant would face later, he says, “after we had no skin in the game.
“We pulled that one out of the fire after it looked pretty grim. It was sort of like seeing the cartoon of a crane swallowing a frog, and the frog grabs onto the crane’s throat. That was what that case was all about.”
“Whether it’s Halcyon or any other wildcatter, if you want to talk about kicking stuff around, thinking out of the box, they want to do it,” Barclay Nicholson, of Houston’s Norton Rose Fulbright, says of his clients. “Especially the wildcatters. Those guys are risk-takers by nature.”
Nicholson earned his J.D. at the University of Houston Law Center in 1999. His early legal experience in the evolving field of hydraulic fracturing, or fracking, led the U.S. State Department to ask him to travel globally and offer legal advice on oil and gas issues.
In 2012, he represented Exxon in a case against Doosan Heavy Industries and then-Fluor Daniel. The oil and gas giant claimed that reactors it had ordered for new federal gas-production guidelines did not meet specifications.
Nicholson says the case, which settled on the eve of trial, taught him the value of involving clients in shaping legal strategy and being open to brainstorming and criticism. “Some lawyers really never allow themselves to do that,” he says. “They want to come in with all this armor on.”
With a dad who was a Gulf Oil engineer with a law degree, Michael Sanders veered toward energy law after joining the Houston office of Cotton Bledsoe, where he worked with Ed Norwood, one of the field’s premier attorneys.
“There’s some very colorful characters in the industry,” observes Sanders, who later founded Sanders LLP in Houston. “A lot of scoundrels, and a lot of saints.”
Back in 2002, he and Norwood represented a small East Texas firm accusing a national, Houston-based service company of damaging its well, then deflecting blame. Though he won’t name the parties, Sanders says, “they wanted to charge our client for unsuccessfully trying to fix their own mistake.”
The big firm made several failed motions for summary judgment in Harris County District Court and even tried to sue Sanders’ client for defamation. But Sanders’ team ultimately prevailed.
“I remember how satisfying it was, because the businessperson in charge for the other side, and their counsel, were very smug during the whole lawsuit and acting like we were crazy for opposing them,” says Sanders. “It was very David-versus-Goliath, and we prevailed.”
In San Antonio, Calhoun Bobbitt, of Drought Drought & Bobbitt, was fresh out of law school in the late 1970s when he helped his firm represent the 1,600-member Old Ocean Royalty Owners Association against industry giants including Amoco in a dispute over natural-gas royalties.
The association argued that royalties it got from lease interests in Old Ocean, a southeast Texas oil field operated by Amoco, should be higher based on new market conditions. Consequently, his team argued, owners were entitled to a general-market value eight times what they were getting under a pre-existing contract. After slugging it out for four or five years, a substantial settlement was reached.
For someone just starting his career, “it was a pretty amazing experience,” Bobbitt says.
The industry’s prospectors, while not the bulk of his business—that would be oil-production companies, and landowners with mineral interests—always beguile. “They’re like treasure-hunters out there digging holes, looking for wealth two miles underground,” says Bobbitt, a San Antonio native whose dad, uncle and both grandfathers were all lawyers. “And they tend not to be whiners when it doesn’t work out.
“They’re risk-takers. They’re people who can drop a couple million dollars in a dry hole and drown their sorrows the next night and say, ‘What’s next?’”