January 20, 2021

What We Do in the Shadows

Apologies to anyone who thought this was going to be about vampires because it’s not. (Also, apologies to Taika Waititi for stealing his title.)

I got thinking about the odd nature of appellate practice, today. It was prompted by a win I got in the Fifth Circuit Court of Appeals, just this morning. I’ll digress for a moment to reminisce a little. Back in 2014, I took on an appeal from a summary judgment proceeding in a premises liability case called Cynthia Holland v. Memorial Hermann Health System. My client was walking through the parking lot of a hospital in west Houston, she tripped over some broken pavement, she fell, and she suffered injuries. Simple, right? Well, the other side moved for summary judgment—moving for judgment as a matter of law on the grounds that it didn’t control the area where she fell. The funny thing about summary judgment is that you have to set the record for it, just so. Make sure you’re dotting all the “I’s” and crossing all the “T’s.” In that instance, I realized that a mistake in the record (by my own trial counsel, ironically) could actually work in my favor. The case pleadings said that my client suffered her fall at a hospital in Katy, Texas. Where she actually fell was in the parking lot of another hospital—one owned by the same hospital system—that was located about 15 miles east of the one named in the pleadings. The other side argued that it didn’t control the parking area of that eastward hospital. But I argued that wasn’t the one they needed to worry about:  the one named in the pleadings was all that mattered under established procedural law. And I won, getting a reversal and remand.

It was a bit of a silly situation. The mechanisms for cleaning up the record and generally getting the factual allegations to conform to reality exist under the Texas rules, but my opponents simply hadn’t done that work, and it was fatal to their judgment. My job in a case like that is to get a reversal in whatever way I can, and attacking the facts stated in the motion–regardless of the reality of the situation–was the fastest, most direct route. The case wound up getting a bit of attention, winning me “Appellate Lawyer of the Week” in the Texas Lawyer–a publication with a pretty decent circulation–and getting referenced at the occasional legal education seminar. But, ultimately, it was pretty inconsequential. The other side cleaned things up, and we faced the same motion again in about a year’s time. We didn’t win that one, despite the publicity.

And that brings me back to today. Today, I won an appeal in the federal Fifth Circuit Court of Appeals in the case Martha Gonzalez, et al., v. CoreCivic, Incorporated. The case involves the applicability of the federal Trafficking Victims Protection Act–protections against forced labor–to immigrant detainees in private prisons in south Texas. I took this case on because it’s about exploitation of a vulnerable population. It’s about labor forced on people with very little ability to refuse. It’s about corporate America taking advantage of people on the fringes of our society–people here without documentation and potentially in violation of law, though with nothing adjudged against them. It’s a case that matters to our law, to our values, to the very things that make America what it is and ought to be. And I fully expect it to be largely ignored.

In Holland, I had a trick to winning. It was an odd, bizarre little wrinkle in the law, and I exploited it and used it to my advantage. In Gonzalez, it was a stand-up fight, although still a technical one. Everyone knew what was going on, what the arguments were, and there was no getting away from the key issues. There’s nothing sexy about it; nothing to make anyone sit up and say “wow.” And especially with the opinion dropping on the same day as the presidential inauguration, I don’t expect it will cause any great waves.

But what we do in the shadows matters. What we do when the lights aren’t shining and where they aren’t shining says more about who we are than what happens when and where they are. How we treat the most vulnerable is what defines us in the end. So, on a day when our new Commander in Chief has called for unity and an end to division, maybe treating those on the fringes as human beings is the place to begin. The Golden Rule is certainly an ideal, but healing of wounds begins on the edges.