EXPERT WITNESS The Lawyer Who Lost The Big One

When Randal Mathis used a nice-guy strategy in the Rudy Kos sexual abuse case, it did more than backfire: After a multimillion-dollar judgment, it devastated the Catholic Diocese of Dallas.

CONSIDER THE 1NGRE-dients.

Start with a hearty stock of horrid facts. Add two well-seasoned plaintiffs lawyers and a cup of sour legal rulings. Blend in a fishbowl. Simmer over a low flame of bad press and ladle over an underpre-pared client. Add a pinch of judicial sympathy, and bake in a pre-heated jury room.

What have you got? A recipe for litigation disaster.

I’m talking, of course, about the faith-shaking, $119.6 million jury verdict against the Catholic Diocese of Dallas for its grossly negligent oversight of Father Rudy Kos, a serial sexual abuser of young boys. By the time Judge Anne Ashby signed the judgment this winter, interest had swelled the amount to $154.3 million-serious money, even for the church. The specter of bankruptcy, or of plaintiffs lawyers seizing church property, has had Catholic lawyers and church leaders doing some serious soul-searching. Was this a legal disaster that could have been avoided?

Some say the church should have been better prepared. They cast the blame on Randal Mathis, the diocese’s lead defense counsel. That’s hardly a surprise. Like the losing quarterback in a football game, the losing lawyer in high-stakes litigation makes for a convenient scapegoat.

Mathis, the thinking goes, is a nice guy who pursued a be-nice strategy for the bishop, who did not want the diocese to be perceived as abusing Kos’ll victims a sec-ond time and who did not want to try the case in the press. That left the courtroom and the court of public opinion wide open for the plaintiffs, the judge, and the jury to run amok. The result was predictable: Mathis, who is soft-spoken and, yes, a nice guy. was a lawyerly lamb led to the slaughter by a pair of paganish plaintiffs lawyers.

There was so much at stake. A lot of people wanted a more aggressive trial lawyer,” says Bronson Havard, editor of Texas Catholic and a spokesperson for the church during the trial. “You had a hostile judge. You had plaintiffs lawyers having a field day pursuing Christians. The case had already been tried in The Dallas Morning News. The whole atmosphere was poised for a runaway jury.”

Others are even less charitable. Mathis, they say, failed to control his client, Bishop Charles V. Grahmann. a religious figure who did not understand that, in the secular world, all’s fair in love and litigation.

“For every runaway jury I’ve investigated, I’ve found poor lawyering as a cause,” says Frank Finn, a well-known Catholic lawyer from Dallas who, like many other local Catholic lawyers, hovstyle. You can lose that way, too.”

And the diocese would have lost, according to the plaintiffs lawyer and the jurors, who leap to Mathis’ defense. Sure, Windle Turley, who represented eight of the 11 Kos plaintiffs, can afford to be gracious with the diocese’s multimillion-dollar scalp on his belt. So can Susan Koons, the jury forewoman who handed Turley his prize. But then again, perhaps they understand the dynamics of this trial better than Havard, Finn, and the other armchair litigators who have been popping off.

“It could have been twice as bad,” says Turley. “We controlled the trial because we planned to do it. He didn’t make the facts. We had the true facts. Blame the diocese, not their lawyer. He had to work with what he had. Randy Mathis salvaged some things for the diocese.”

“It was not Randy,” echoes Koons, “Nobody can manufacture a defense.”



THERE’S NOTHING QUITE LIKE LITIGA-tion hindsight. Post-trial snipers can examine the case of John Does 1 – XI against Father Rudolph Kos, Bishop Charles V. Grahmann, and the Roman Catholic Diocese of Dallas through the clear lens of “shouldas,” “wouldas,” and “couldas.” And at first glance, it sure looks like the defense team shoulda done something differently.

But what? There’s little to suggest Mathis was anything but a good choice for the job. And he performed capably with what he had-not much. There’s a shopworn legal adage: If you don’t have the facts on your side, argue the law; if you don’t have the law on your side, argue the facts; if you don’t have the law or the facts on your side, settle.

That’s the situation Mathis faced last May as opening arguments rolled around. He didn’t have the facts; the judge had made sure he didn’t have the law; and. with the diocese’s insurers refusing to pitch in, his client didn’t have the cash to meet the plaintiffs’ best settlement offer. So he forged on and made damn sure he had all his appellate ducks in a row.

“It’s a very serious matter,” says Mathis. “You can’t just make it stop.”

That’s especially true when you’re squaring off against the likes of Turley and his co-counsel, Sylvia Demarest. This is a formidable pair. Turley, who came to SMU to become a preacher but turned to law instead, made a name and fortune with air disaster cases. He is a bona fide superstar style. You can lose that way, too.”

And the diocese would have lost, according to the plaintiffs lawyer and the jurors, who leap to Mathis’ defense. Sure, Windle Turley, who represented eight of the 11 Kos plaintiffs, can afford to be gracious with the diocese’s multimillion-dollar scalp on his belt. So can Susan Koons, the jury forewoman who handed Turley his prize. But then again, perhaps they understand the dynamics of this trial better than Havard, Finn, and the other armchair litigators who have been popping off.

“It could have been twice as bad,” says Turley. “We controlled the trial because we planned to do it. He didn’t make the facts. We had the true facts. Blame the diocese, not their lawyer. He had to work with what he had. Randy Mathis salvaged some things for the diocese.”

“It was not Randy,” echoes Koons, “Nobody can manufacture a defense.”



THERE’S NOTHING QUITE LIKE LITIGA-tion hindsight. Post-trial snipers can examine the case of John Does 1 – XI against Father Rudolph Kos, Bishop Charles V. Grahmann, and the Roman Catholic Diocese of Dallas through the clear lens of “shouldas,” “wouldas,” and “couldas.” And at first glance, it sure looks like the defense team shoulda done something differently.

But what? There’s little to suggest Mathis was anything but a good choice for the job. And he performed capably with what he had-not much. There’s a shopworn legal adage: If you don’t have the facts on your side, argue the law; if you don’t have the law on your side, argue the facts; if you don’t have the law or the facts on your side, settle.

That’s the situation Mathis faced last May as opening arguments rolled around. He didn’t have the facts; the judge had made sure he didn’t have the law; and. with the diocese’s insurers refusing to pitch in, his client didn’t have the cash to meet the plaintiffs’ best settlement offer. So he forged on and made damn sure he had all his appellate ducks in a row.

“It’s a very serious matter,” says Mathis. “You can’t just make it stop.”

That’s especially true when you’re squaring off against the likes of Turley and his co-counsel, Sylvia Demarest. This is a formidable pair. Turley, who came to SMU to become a preacher but turned to law instead, made a name and fortune with air disaster cases. He is a bona fide superstar who has trained many of the city’s best trial lawyers, including Demarest, a graduate of Turley U.

Turley entered the picture when the first John Does came to him with a stomach-turning story of a perverted priest with a foot fetish who preyed on altar boys he plied with liquor and drugs. It fell to Tom Unis, who had represented the church for decades, to suggest a defense lawyer. He tapped Mathis, a young partner at his firm, Strasburger & Price, one of the city’s premier defense shops.

Why Mathis?

Unis, of course, considered him a skilled trial lawyer. But more importantly, he had done battle with Turley before in a high-profile, handgun-liability case and whipped him all the way to the Supreme Court.

“i figured if he’s big enough for that, he’s big enough for this,” says Unis, now semi-retired and no longer general counsel for the diocese.

When Unis brought him the Kos mess, it was right up Mathis’ alley. “1 like unique files,” he says. “Other lawyers shy away from them. I like the challenge.”



THE DIOCESE’S LITIGATION CERTAINLY was that. And the challenge grew and grew and grew, until by the eve of trial, it loomed like a legal Everest.

That’s because the case by then was largely over. Turley and Demarest had put their money where their mouths were, piling up the facts to show the diocese had failed badly in its supervision of Kos. They conducted more than 150 depositions and lined up world-class experts. It was clear no factual stone would be left unturned.

The law also was turning against the diocese. Many of the cases had landed before Judge Anne Ashby, who embraced the plaintiffs’ legal arguments almost every step of the way. Those rulings all but sealed the diocese’s fate.

The most important was on the diocese’s claim that almost all the cases were barred because they were brought too late. But the plaintiffs countered with arguments that Kos’ abuse was so traumatic they should be excused for holding back. Ashby, to the surprise of Mathis and other legal observers, agreed with the plaintiffs.

Another key legal question, both sides agree, was what shape the first trial would take. Since Turley’s first suit, the number of Kos plaintiffs had swelled. And Demarest had five clients with abuse daims against two other priests, William Hughes and Robert Peebles, which were also in the mix. Turley says the defense was split on how the cases should be tried. Demarest wanted to try the whole bunch together; he and Mathis did not.

Turley had a strategic purpose in opposing his co-counsel ; There were other defendants beside the diocese in the Hughes and Peebles cases, and he wanted to shut those defense lawyers out of the trial.

“I didn’t want a roomful of defense lawyers,” he says. “My strategy was to isolate Randy on these cases. We could double-team him.”

Ashby consolidated the Kos cases for trial. At that time, however, there was a key case missing from the bunch: the claims of the family of Jay Lemberger, the 21-year-old Kos victim who killed himself in 1992. When Turley moved to add Lemberger to die trial mix, Mathis fought tooth and nail-to no avail. Ashby again sided with the plaintiffs,

Mathis and Turley agree it was a monumental decision-a key to the large damage award. Faced with the Lemberger case, jurors could now say to themselves: “There but for the grace of God go all of Rudy Kos’ victims.”

“When the dead man’s parents testified, it was like a glove that fit a hand,” Turley says. “It was identical to what had happened to the others. You couldn’t tell which plaintiff they were talking about.”

When you speak to Koons, the jury forewoman, it becomes clear that Turley is right. “I read the obituaries every day to see if I’ll find one of their names in them,” she says.



THERE WERE OTHER RULINGS THAT hurt the defense. One of the most bizarre had a constitutional twist. Mathis planned to use the First Amendment’s freedom-of-religion language to challenge testimony offered by the plaintiffs. But Turley countered with a pre-emptive strike: He asked Ashby to ban Mathis from uttering the words “constitution” or “First Amendment” in front of the jury. She agreed, ordering Mathis to use the mysterious code “Objection A” to raise his objections and preserve the issues for appeal. Mathis says it’s the oddest ruling he’s encountered in 18 years as a trial lawyer.

’There were a lot of constitutional evidentiary problems, and there was no legal authority for this ruling,” he says. “The jury was left to guess what it meant.”

And so they guessed. Koons says she was mystified throughout the trial; she assumed the objection meant Mathis was trying to make reference to the Peebles and Hughes cases. while it was not a major factor in the verdict, it certainly didn’t help the defense’s posture with the jurors, one of whom was a talented cartoonist who drew playful caricatures of the players. Mathis was characterized by his mysterious ’Objection A.”

Clearly, this was going to be an uphill battle. The defense had lost the war on the key legal questions, and as the trial played out,Turley and Demarest masterfully took control and laid out a compelling narrative for the jury. They had the facts to do it, and Ashby allowed them free rein in the courtroom. Although Mathis fought it, the judge let Turley broaden the trial until it was no longer just the Kos case; it was Kos, Peebles, and Hughes. In fact, Turley and Demarest were able to mount a trial against the entire Catholic Church and the national scandalof sexually abusive priests. This was no longer a case but a cause.

Mathis says this is why a trial the lawyers figured would last four to five weeks stretched to 11. Ashby let the plaintiffs pile up the evidence. It was an avalanche and the diocese was getting buried.

’This was very prejudicial,” Mathis says. “It became a bigger trial with issues and testimony far afield from whether the diocese was or was not negligent in its supervision of Kos.”

Turley and Demarest orchestrated it well. They kept it fresh for the jury by taking turns and using demonstrative aids, like a timeline planted with a red flag for every piece of evidence that the plaintiffs claimed should have alerted the church to Kos’ abuse. They wove the plaintiffs’ wrenching testimony with drier material from their experts. They never allowed Mathis to get his balance.

“We planned to deny the diocese control-to keep the ball away from the other side and tell our story completely,” Turley says. “It worked better than I ever anticipated.”

Turley says the pace also hurt Mathis- a three-month grind for a lawyer who handled all the court work himself. “Randy was at a real disadvantage,” he says. “He took the whole case. He worked real hard, but 1 don’t know anyone who could do that.”

Mathis disagrees. He points to the large trial team that backed him up and Ashby’s decision to hold trial only four days a week, which he says kept him fresh. And he remains convinced that his strategy was sound: Distance the diocese from Kos and play the hindsight card by narrowing the question to the issue of the reasonableness of the diocese’s handling of Kos given what it knew at the time.

“Knowing what we know now, to be sure the evaluation was inaccurate…. The parents and others saw the same thing as the diocese and everyone interpreted il wrongly,” Mathis says, turning to an analogy. “If 50 people see the same car wreck and reach the same conclusion, I believe it’s demonstrative of the reasonableness of the judgment of those 50 people.”

As for the style of Mathis’ presentation, neither Koons nor the plaintiffs lawyers believe it mattered in the end.

“I’m not sure a more vigorous defense would have made a difference,” Demarest says. “The case never should have been tried.”



KOONS AND HER FELLOW JURORS agreed. So they sent a resounding eight-zero message to the diocese. a message it appears to be finally hearing. In February, it settled the Peebles and Hughes cases for $5 million, with the diocese throwing in $1.1 million and its insurers fooling the lion’s share of the tab.

But why didn’t the diocese settle earlier? Turley and Demarest say they would have taken around $1 million a plaintiff, though Mathis says the lowest demand they made was about twice that. Still, that looks mighty good next to a S154.3 million judgment. So why didn’t the diocese offer more than what Demarest says was a paltry $50,000 per plaintiff-not enough to cover the lawyers’ time? Mathis insists that, with its insurers refusing to ante up, settlement was not an option: The diocese did not have the cash to meet even the lowest settlement demand of the plaintiffs.

Now that dynamic has changed, with the diocese’s insurers apparently willing to contribute. And with Peebles and Hughes out of the way and another round of mediation slated, it appears the chances are good for settling the whole thing. After (he trial, the diocese handed over the appeal to a team from the prominent Dallas firm Haynes and Boone. But the bishop did not jettison Mathis, who remains on board. Everyone seems eager to close this sordid chapter of church history without an appeal.

“I’m trying to look forward, not backward,” says George Bramblett, who is leading the diocese’s post-trial team. “I’m trying to find a solution to this thing without going back and second-guessing.”

Amen.

Newsletter

Keep me up to date on the latest happenings and all that D Magazine has to offer.

Comments