EXPERT WITNESS The Most Hated Judge In Texas

TALK ABOUT AN IMPRESSIVE RESUME.

In 1980. the GOP plucked her out of the political blue to run for a county court-al-law seat; she surprised everyone by becoming the first Republican woman ever elected to the bench in Dallas County. She toppled a Democratic incumbent in 1986 to jump to the civil district court. She has been re-elected a total of four times, stringing together the longest tenure of any Republican judge on the civil bench. And now she has her sights trained on the ultimate judicial prize: She is mounting what very possibly could be a successful campaign to knock off the last liberal on the nine-member Supreme Court of Texas.

That’s quite a record. It’s even more impressive if you consider that local lawyers think its holder. Candace Tyson, is the worst judge in Dallas County-perhaps in all of Texas. Picture an Olympic gymnast who stumbles her way to a 3.2 when every- one else is tumbling along at 9.8 and 9.9. That’s Judge Candace Tyson.

Tvson is a bit of an enigma. After suddenly canceling a planned interview because of a hectic schedule, she calls on a Sunday afternoon and chats engagingly for more than an hour. She’s intelligent; she’s motivated; she’s experienced. She’s actually quite charming, even coquettish. She’s hard to dislike.

Yet she’s reviled by a shocking percentage of lawyers. In the Dallas Bar Association’s latest biannual member poll, Tyson’s approval rating-never anything to write home about-fell off the chart. Only 13 percent of the lawyers who responded approve of her performance; the next lowest-ranked judge more than tripled that score.

To be fair, bar polls are open to question. Tyson supporters are quick to point out the widespread perception that the giant, bill-by-the-hour firms influence the polls with mass voting. Tyson says her “rocket docket” delights litigants and saves tax dollars but “annoys lawyers who want to make money billing clients.”

In Tyson’s case, however, it’s not just the bar poll. The Committee for a Qualified Judiciary, which scrutinizes judicial candidates, turns thumbs down on Tyson. And in a statewide survey Texas Lawyer conducted last year of more than 19,000 lawyers, Tyson placed a close second to Houston personal-injury lawyer John O’Quinn as the most despised lawyer or judge in the state. And Tyson’s was the only name atop the list without a single vote on the most-admired side of the ledger.

That’s quite an achievement for a little-known district judge. It’s also the reason Candace Tyson is this election season’s poster child for judicial election reform.



HOW IS IT THAT A WOMAN WHO RECEIVES abysmal marks in every attribute society values in its judges-fairness, consistency, orderliness, temperance-has an excellent shot at snatching away the seat of incumbent Supreme Court justice Rose Spector, who is moderate enough to win the endorsement of the Texas Medical Association?

It’s tough to stake out an anti-democratic position in a state with a ride-“em-out-on-a-rail attitude, whether toward fizzled football coaches or odious officeholders. But many people are doing it. The reason? We can’t be trusted to pick our judges.

The average voter knows next to nil about Tyson or any other candidate for judicial office. (I knew next to nothing about her until I started calling around for this column, and I do this fora living.) Yet we entrust these judges with our most crucial calls: life or death, freedom or restraint, riches or ruin.

“Nobody knows-even the lawyers- who’s on the court and who’s running,” says Spector. whose seat Tyson will vie for if she beats Houston Court of Appeals Judge Harriet O’Neill in this month’s Republican primary.

Tyson is not a singular case; she’s just this year’s model. There’s disgraced former Supreme Court Justice Don Yar-brough. elected because voters confused him with a former U.S. senator and gubernatorial candidate. Ralph Yarborough. There’s The Gene Kelly Story, the tale supporters of election reform love to tell. Kelly, an unknown and underfunded retired military judge, rocked the legal establishment by toppling an experienced, well-endorsed, and well-financed Democratic appellate judge, Fred Biery, in the 1990 Supreme Court primary. How? Look no further than his name.

“It’s not thai anybody thought he was the dancer,” says Spector. “It’s just a name you’ve heard before. It’s the same thing with Tyson.”

She’s right. Political observers say Tyson’s name should serve her in good stead among female and minority voters. It’s also far better known than her primary opponent’s, and it just doesn’t .seem to matter that it surfaces most notably in news stories that shine a light on her bottom-of-the-barrel bar poll ratings.

“It means not a whit to her electorate,” says Frank Finn, a well-known Republican lawyer in Dallas who is on the Committee for a Qualified Judiciary.

In fact, rather than hurt Tyson, the bar poll seems to have helped her. A formidable campaigner, she shrewdly plays on the public’s disdain for lawyers by holding the poll aloft as a badge of honor. “If they hate me,” she crows, “then I must be doing something right.”

Some lawyers think so. William Sims, a litigator in the Dallas office of one of the state’s biggest and best firms, Vinson & Elkins (and a backer of Rose Spector). has had two recent experiences in Tyson’s court. “In both cases she did a superb job,” he says, bewildered at her dismal reputation. “I don’t know how it started, but it seems to have taken on a life of its own.”

It has. Lawyers call me all the time to bash judges off the record-way off. But it’s rare when a practicing lawyer rushes to savage a sitting judge in print. That’s no way to serve your clients. That’s why kid gloves are the order of the day.

Except in Tyson’s case. The gloves are most definitely off.

Take Fred Baron, one of the top trial lawyers in the city, who pulls no punches as he jabs away at the one criticism you hear again and again: She is arbitrary and capricious.

“The most important thing in law is predictability.” says Baron. “With Candace Tyson, it can be one plus one equals two or one plus one equals four on any given day. It’s impossible for the lawyer or the client to prepare for it.”

Interestingly, unlike so many judges criticized as result-oriented-and that’s the most vile thing you can say about any professional neutral-Tyson is not viewed as pro-plaintiff or pro-defense. That may account for her reputation for arbitrariness. She is more unpredictable than many of her colleagues. But the criticism has a sharper edge. Lawyers say she toitures the law-or outright ignores it-to reach the result she personally thinks is right.

Baron certainly believes that. With just a few words uttered last year from the bench. Tyson tossed out hundreds of cases his firm had pending in her court on behalf of out-of-state claimants suing asbestos manufacturers. Baron thought he had on his side a law that clearly and specifically allows such cases to be filed here. (And it does seem pretty clear.) But Tyson brushed it aside and dismissed Baron’s actions, forcing his firm, Baron & Budd. to mount hundreds of costly appeals.

Baron claims Tyson’s ruling was a cynical political ploy to curry favor with potential campaign donors and voters. Tyson certainly is milking it in her campaign literature.

“That decision could lead to the dismissal of more than 35.000 lawsuits statewide-saving taxpayers in Texas millions and freeing our courts for legitimate claims made by Texans,” she says in a pitch for funds.

“She abused her authority,” Baron says. “It flies in the face of an orderly civil justice system.”



WHAT ELSE IS IT ABOUT TYSON THAT SPAWNS such loathing? Much of it was laid out in painful detail in a 1995 Dallas Observer profile, “The Judge Lawyers Love to Hate,” that splattered muck all over Tyson and then suggested she might be a misunderstood jurist.

John Bickel, one of the city’s most controversial lawyers thanks to his hard-ball litigation tactics, thinks so. Bickel backs Tyson’s campaign with bucks because he likes the way she runs her courtroom.

“She’s not a good politician as a judge; a good politician as a judge will let lawyers slide,” he says. “She doesn’t try to please everybody. She pushes cases to trial. She’s not afraid to rule.”

Detractors, however, say they’d be delighted if she was as good in the courtroom as she is on the campaign trail. “She’s so good as a politician, you wish she could be half as good as a judge,” says one well-known bar leader and litigator.

Really, it’s not all that surprising the bar so disdains Tyson. She presses all the hot buttons. She’s driven to pump up her reputation for keeping a tidy docket, and she also slaps heavy fines on lawyers and litigants who displease her-$10 million in one case. And she has a reputation for running something of a slipshod show.

But some of the criticism does seem unfair. There’s something about her demeanor that just inspires disrespect. It’s not only that the busty, 50-year-old Highland Park divorcee favors tight, bright outfits, but she sports a bewildered look on the bench, hunching close to the microphone and talking low and fast. That makes her hard to understand. “If you watch her,” says one well-known plaintiffs lawyer, “she just looks and acts goofy.”

To her credit, Tyson hasn’t ignored the criticisms. For several years she held breakfast meetings so leading lawyers could vent their concerns. The first was at the Tower Club, with Tyson hopping between three or four tables. The problem, says Ken Migheel, a civil defense litigator who attended, was that the lawyers were less than candid because they might have had clients with cases in her court.

“I do think she was trying,” Migheel says. “But I’m not sure I saw anything resulting from it.”

Al Ellis, a plaintiffs lawyers who disapproves of the bar polls, thinks it might even have been counterproductive.

“She made a real effort to make some improvements and she did a better job,” Ellis says. “But she didn’t get any credit for it. Then when her numbers in the bar poll continued to full, she went back to her old self. She reverted.”



CAN CANDACE TYSON WIN?

You bet she can. She’s a robust campaigner, while her opponent’s Achilles’ heel may be that she dislikes that part of the job. And she’s got money; she may even be willing to put some of her own inherited wealth into the race. Her polls, which O’Neill, her opponent, says are biased, show her with a five-to-one margin among Republican primary voters. And with 18 judicial years under her belt to O’Neill’s five, her credentials are imposing. Yes, she can win. And if she does, she likely will make it to the high court.

That’s the sad part, according to those who favor a new method of picking judges. Rose Spector, a decent and moderate jurist, does not deserve to lose her seat. But lose it she probably will.

“Rose Spector’s greatest sin is that she’s a Democrat,” says former bar president Molly Steele.

And when it comes to running for judicial office in Dallas County or statewide, that’s the biggest sin of all. That’s why reformers want a change, whether to a pure merit selection system or a hybrid system mixing appointments and retention elections. It makes sense. The ability to press the flesh, to squeeze funds from lawyers and litigants, to curry endorsements from interest groups, to put an R instead of a D by your name-these are the kinds of things that got Tyson elected in the first place but are hardly the qualities that make for a great judicial system. Judges are supposed to be neutral; they’re supposed to think independently; they’re supposed to lean into the political winds and carry forth the law; and they’re supposed to avoid even the appearance of impropriety.

That’s pretty tough when the system itself is hopelessly flawed. Think about it. There you are in the voting booth. Down the ballot are two unfamiliar names. One sings sweetly, the other strikes a sour chord. Well, given the choice between something sour and something sweet, most people choose the candy.