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Miers: counsel of record in 22 cases that were litigated.
NY Times
As a Private Lawyer, Miers Left Little for the Public Record
Published: October 10, 2005

IRVING, Tex., Oct. 7 - Harriet E. Miers, President Bush's nominee to the Supreme Court, spent the bulk of her 30 years in private practice representing clients in relatively mundane business deals and contract disputes. But most cases heard by the court do not grab headlines.

Ms. Miers has come under fire from critics who say she lacks any substantive experience with weighty constitutional issues. But she has plenty of practice with the less provocative legal questions posed in most of the court's cases.

Of the 80 cases before the Supreme Court last term, 25 involved questions directly affecting businesses, according to data collected by Goldstein & Howe, a Washington law firm specializing in Supreme Court litigation. While 33 cases raised questions of constitutional law, 45 involved the interpretation of a law, one involved an interstate dispute and one involved a dispute between a state and the federal government.

That was a typical year, said Thomas C. Goldstein, a partner at the firm. The Supreme Court's caseload is made up of "relatively mundane questions of federal law, mostly about statutes, not the Constitution, that are important to little corners of the legal universe but are not on the hot-button social issues of the day," Mr. Goldstein said.

"It may be that abortion is the most important question that the court decides," he said, "but it's close to the least frequent."

Most of the cases Ms. Miers handled were settled out of court, leaving little for the public record. According to the Congressional Research Service, Ms. Miers has been counsel of record in 22 cases that were litigated.

In 1975, she was the court-appointed counsel for a man seeking to overturn his 1960 conviction for transporting counterfeit securities across state lines. She lost that appeal. In 1981, Ms. Miers advocated on behalf of a woman seeking Social Security disability benefits. The court turned her down. In 2000, she successfully represented Gov. George W. Bush when a group of Texas voters sued to block the state's electoral college representatives from voting for both Mr. Bush, then a presidential contender, and his vice presidential choice, Dick Cheney.

But the majority of Ms. Miers's time as a lawyer with the Dallas law firm Locke Liddell & Sapp was spent counseling clients in business matters. She has represented the Walt Disney Company and SunGard in contract disputes, Microsoft in a consumer class-action case, and investors in a real estate transaction that soured.

In 1998, Ms. Miers represented Disney Enterprises in a dispute with Esprit Finance, which had entered into a contract to promote a Disney concert tour in Mexico. The financing fell through, and Esprit sued Disney in Texas state court; Disney lost and appealed, arguing that Texas did not have jurisdiction over Disney. The appeals court agreed.

One of Ms. Miers's most significant cases, according to lawyers who have worked with her, was the Microsoft case, Microsoft v. Manning. The company appealed the decision of a federal trial court to certify a class of purchasers, who argued that Microsoft's MS-DOS 6.0 software was defective, said Jerry Clements, a partner at Locke Liddell & Sapp who worked on the case with Ms. Miers. The appeals court upheld the class certification, but the trial judge reversed her own decision, Ms. Clements said.

"That was the beginning of a series of cases in Texas that really started shifting the state into a position of not being so much of a plaintiff's haven for class actions," Ms. Clements said.

In 1998, Ms. Miers was hired by SunGard, a technology company based in Wayne, Pa. According to court documents, Southwest Securities sued after SunGard began negotiating a business opportunity with two employees of a company that Southwest later merged with. Southwest contended that the talks violated the terms of an agreement between the predecessor company and SunGard. The case was eventually settled.

"It was a pretty standard case, in terms of just run-of-the-mill commercial litigation," said Joe B. Harrison, a lawyer at Gardere Wynne in Dallas, which represented Southwest Securities. "There wasn't anything unique about the facts or the law that I recall."

He added that Ms. Miers was "well prepared, very courteous."

Lewis T. LeClair, a partner at McKool Smith who faced Ms. Miers in another contract case, said she was a "different kind of lawyer." "You can think of the Mark Laniers, the Rusty Hardins," he said, referring to some of the more flamboyant courtroom advocates in Texas. "Harriet's not cut from that mold."

Until Ms. Miers appeared on the case, Mr. LeClair said he thought he had won the dispute, which arose when one investor in a deal to buy the Thanksgiving Tower in Dallas ultimately did not participate.

According to court documents, Ms. Miers's client, Anros Thanksgiving Partners, agreed to invest in the purchase of the tower in 1988 and provided a $5 million letter of credit, basically a check that could be cashed if Anros did not provide the pledged financing at the closing. Anros requested multiple postponements of the closing date, and eventually one of Anros's co-investors, Bear Stearns Companies, drew on the letter of credit.

The purchase took place without Anros. Bear Stearns then sued Anros for failing to help finance the investment and won a summary judgment motion on the eve of trial, Mr. LeClair said, but not before Ms. Miers had brought the case back from the brink.

"She did an excellent job," he said. "I wrote her a letter after it was over, saying I never really worried about the case until she got into it."

Margaret Donahue Hall, a partner at Locke Liddell & Sapp, also offered plaudits for Ms. Miers. "She is really a unique person, and she does not go about things the way someone who rises typically does," Ms. Hall said. "In my heart of hearts, I know she'd make a great Supreme Court justice, but it's hard to put into words why."

And that is the biggest challenge for Ms. Miers's supporters, who can point to competence, toughness and niceness but offer few signs that she has wrestled with the sensitive topics that the public seems to care about most.

Chief Justice John G. Roberts Jr., who was confirmed by the Senate last month, produced a rather spare paper trail that nonetheless looks exhaustive when compared with the one left by Ms. Miers. Senators grilled him about his thoughts on capital punishment, affirmative action and the right to die.

In all Ms. Miers's cases on soured contracts and other corporate matters, there are scarcely even hints of what her thoughts on such issues might be.

The most qualified person Bush could find? Good grief, what an amateur.