In this episode Scott talks with Andy Vickery, a phenomenal trial lawyer from Houston, Texas. Mr. Vickery shares the story of a client who was deprived of a day in court.
Transcript for Trial Lawyer Talk, Episode 25: Andy Vickery
Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. First, today I’d like to thank our exclusive sponsor, Traci Kaas, from The Settlement Alliance-WEST. Traci is a phenomenal settlement consultant and I’ve worked exclusively with Traci for the last 10 years because she cares. Just like the folks I interview on his podcast, she cares about the clients and does a great job. Now, at first I was very hesitant to get a sponsor because this podcast is not about making money and it never will be. So all of the sponsorship money is going to advertise the podcast so that we can spread the word and get more listeners. Thank you Traci. So let’s get started.
I feel very fortunate to have with us today, Andy Vickery, a phenomenal trial lawyer out of Houston Texas. Andy’s practiced for over 40 years and handled practically every type of case that exists. Andy, thanks so much for being with us.
Andy Vickery: Oh you’re extremely welcome. I’m flattered you asked me.
Scott Glovsky: Andy, can you share with us the story of a case that had a profound impact on you?
Andy Vickery: Sure. It’s the case of Craig Patty, a client who was deprived of a day in court. His property was taken without his knowledge, without his consent by our government.
Scott Glovsky: Okay, tell us the story.
Andy Vickery: Well Craig had been in corporate America most of his career and with the discovery of new ways to get oil out of the Eagle Ford Shale, in South Texas, there were lots of need for trucking. And so Craig pursued the American dream, left a corporate job, and started a business, a trucking business. And he bought one truck and he hired a driver and there was great demand for that truck and a few months later he said. “Well I need a second truck.” And so he bought a second truck and his first driver introduced him to his second driver named Chapa. Unbeknownst to Craig Patty, Chapa was a paid, confidential informant for the United States Drug Enforcement Agency and without Craig’s knowledge, and without Craig’s consent, and in fact by lying to Craig Patty. They took his truck, with his gas, and they drove it to the Mexican border, and loaded it up with a legal drugs illegal drugs, and used it for a sting operation. To try to catch some Mexican drug lords.
The Mexican drug lords outwitted the DEA task force, and the truck was shot, and the driver was killed. So one of two trucks, of a small business man’s business. He has two trucks and one of them is riddled with bullet holes, his drivers dead, the trucks out of service and our government, which didn’t bother to ask for his permission in the first place, totally denied his claim and refused to pay for the damage to his truck. I represented him and thought he would get a day and court at least and he didn’t.
A federal judge in Houston decided that this was a discretionary function of the United States government. That even though the Federal Tort Claims Act, which was passed in 1946, says that the United States government ought to be liable for the negligence of government employees to the same extent as any private citizen. Even though it says that, a judge said, “Oh no. That’s a discretionary function of the government. So you don’t get a day in court.”
Scott Glovsky: Did you go about discovering the story of this case?
Andy Vickery: Yes, I certainly did.
Scott Glovsky: Can you share that process with us?
Andy Vickery: Well sure, I mean we … Craig’s side of the story was easy. We had a client who, not only was his business devastated, it’s hard for me to explain to you Scott. But imagine, if you will, that not only has your property been taken, but the drivers been killed, riddled with bullet holes, and now the bad guys think that you’re helping the government find them. You have a wife and a child and you’re afraid they’re going to come to my home, they’re going to shoot me or my child, and so Craig was very upset by it. We could get his side of the story, by talking to him.
Scott Glovsky: And did you do any psycho dramatic work?
Andy Vickery: We did do a little psycho dramatic work, not a full-blown psychodrama with him, but we certainly used some of the techniques. The scene the setting, in particular.
Scott Glovsky: And when you say scene-setting, you mean, explain what you mean.
Andy Vickery: Well I took him back to the time where he gets a call from someone and they say, “Well Mr. Patty, you know, we’re calling about your truck,” and he said, “Oh yeah my truck,” he’s in Dallas and he said, “My trucks down in Houston, in the repair shop.” Because that’s what Chapa had told him, with the blessing of a deputized federal agent, really a Houston police officer. They had lied to him. And so he said, “No my truck’s fine. It’s down in Houston.” And I took him back to that moment and they said, “Oh no it’s really, it’s not in a repair shop in Houston. It’s been riddled with bullet holes and your drivers been killed. And the truck was filled with illegal drugs, but they were put there, not by bad guys, but by the United States government.”
Scott Glovsky: So what about this poor man who died? Was he a representative of the government? Did he know anything about this?
Andy Vickery: Well, he was paid by the United States government to act as a confidential informant. I suspect the government probably paid benefits to his family, because he was killed while working for the United States government. I don’t know, I had no contact with his family and Craig didn’t really, but I got Craig’s side of the story easily. Getting the government’s side of the story was extremely difficult.
Scott Glovsky: How did you do that?
Andy Vickery: Well we did it through the court processes. Obtaining documents, which they fought us on, and of course stamped them all as confidential so that the public can’t really know what the government’s doing, which is maddening, incredibly maddening. Taking depositions of Officer Villasana, who was his handler, Chapas handler, the truck drivers handler. And kind of learning from the documents, and the depositions, what had happened in the government. I thought, it’s impossible, it’s just absolutely impossible that the United States government would take a private citizens truck and use it in this undercover sting operation without getting the guys consent, first of all. And when I learned that, oh yeah they had in fact done that, I thought well surely this must have been approved at a very high governmental level, that the head of the DEA office in Houston must have approved it, and in fact somebody in Washington must have approved this.
So, we sued the head of the DEA office and made it clear we would sue people in Washington. But the head of the DEA office signed an affidavit said, “I didn’t even know about this. I was the head of the office, I didn’t know about it.” And as discovery unfolded, astonishing as it is, what we learned was that this whole operation was essentially the brainchild of a Houston Police Corporal, a Corporal in the Houston Police Department who was deputized to work with the federal agents on the sting operation to catch Mexican drug lords. And in spite of the fact that this is really negligence by a Houston Police Corporal a federal judge said, “Oh no. That’s a discretionary function of the United States government.”
Scott Glovsky: Right, so in other words, their position was there was immunity. For the non-lawyers, that are listening, essentially means that you don’t get to go to trial.
Andy Vickery: Yeah, immunity, or actually, the technical word is it’s an exception. The Federal Tort Claims Act said the federal government’s liable. If federal agents are negligent, then they’re liable. Just like somebody driving a truck running a stop sign. Unless these federal agents are doing something that’s a discretionary function of the United States government.
Scott Glovsky: Right so, how did you go about planning to tell the story?
Andy Vickery: Well, we had all of our ducks in a row. We had … The economic damages were clear. Craig Patty did an excellent job of marshaling the repair cost and how much money was lost while the truck was out of service. We prepared the story by getting the testimony from Officer Villasana, himself and Craig. Of course Chapa was dead, so we couldn’t get his version. And then we had Craig evaluated, the government sort of pooh-poohed the notion that, oh this man should have been upset over the government taking his truck and over the notion that Mexican drug lords might come to his home and kill him or his wife or his child. And we had that professionally investigated and were prepared to tell that whole story in an open court of law.
Scott Glovsky: So without getting into the law, because we don’t really want to talk much about the law here.
Andy Vickery: Sure.
Scott Glovsky: What happened then in the case.
Andy Vickery: What happened is the judge said, “No you don’t get a day in court. I’m just going to decide this as a matter of law.” It looks to me like this was … The government filed affidavits that said, “Oh this was a discretionary function. We’ve got to have discretion, to conduct undercover operation without people knowing about it.”
Scott Glovsky: So how did that make you feel?
Andy Vickery: It made me feel like crap. You know, the governments accountable to us. They’re accountable to us and the one way that we hold them accountable is through the court system, and the Civil Justice System, it’s part of the American lore, if you will, the pride of the Civil Justice System. That people get a day in court, a day in court. And in a tort claims act, like this, you don’t even get a jury trial, but at least the judge should sit there and listen to the sworn testimony of the people before making up her mind. But she didn’t do that she just said, “Oh no, this, I’m just going to toss this out.” And it makes you feel horrible, like you’re beating your head against a wall. Trying to secure justice, trying to just secure a day in court for an American citizen who’s been terribly wronged by his own government.
Scott Glovsky: And how do you deal with those feelings?
Andy Vickery: You know you just try to tell yourself that you hope, in the end, that in more cases than not, the right thing will be done. In this case, we appealed this judge’s decision to a three-judge panel in New Orleans and they just gave a blanket affirmance of it. And right now, as we talk today Scott, we’re asking the United States Supreme Court to review this case. And I hope they’ll take it, because it’s the kind of case … Well, we need clear direction from the Supreme Court of the United States. If it’s okay for our government to take your car, or my truck, or one of the people that’s listening to this, just to take their home without their knowledge, without their consent, without paying them for damage to it, then tell us so.
Scott Glovsky: How has trial lawyering changed over the last 40 years.
Andy Vickery: Well in two ways, one good and one bad, from my perspective and my experience. The good is that there are people who are incredibly devoted to giving American citizens a voice in the courts, and using the court system, and who are committed to the 7th Amendment, right to a jury trial, and to the notion that American citizens ought to have a day in court. And there’s no institution, of course, that’s more devoted to that than the Trial Lawyers College, to which you and I both belong, and both serve on the staff. So, that’s the change that I have noticed, that’s on the good side.
On the bad side, however, trial lawyers have more and more technical hurdles to go over, and barriers to go over, than when I first started practicing in 1972. Particularly I’ll talk just about federal courts, you file your case, it used to be you’d just give people fair notice of what year claims were, but now the Supreme Court has said, “Oh, if your theory is not plausible to a federal judge, if it doesn’t appear, quote, plausible to a federal judge, you don’t get a day in court. You don’t even get to take depositions. We’re just going to toss it out when it’s first filed.” That’s just wrong. There has been a growing tendency for federal judges to, do exactly what the judge did in the Patty case, and grant summary judgment.
Scott Glovsky: That means kick the case out of court.
Andy Vickery: Kick the case out, after the lawyers have worked on it two or three years, spent tens of thousands of dollars, perhaps. Getting the case ready for the day in court and the judge just kicks it out. And then, there’s another extremely pernicious doctrine, it’s called Daubert, or Daubert, depending upon your pronunciation. Where federal trial judges, who really ought to be the guardians of liberty and the protectors of the day in court, but where they just basically serve as armchair scientists and decide, “Well you know, I just don’t like your experts testimony. So, I’m going to throw that out and gee whiz you needed an expert to get to the jury, so I’m gonna throw your whole case out.” And those three things, combined of course with the proliferation of a forced arbitration through boilerplate clauses, are four of the major reasons why the jury trial in America is vanishing.
Scott Glovsky: How about arbitration?
Andy Vickery: Well you know, I think when two people, with equal bargaining power, enter into a contractual agreement of some kind and they say, “You know if we have a dispute, let’s take it to arbitration.” I respect that, I honor that, I think the law should honor that, and should compel them both to go. But when you have forced arbitration in hidden little, tiny boilerplate clauses, in contracts, for consumers who don’t have the bargaining power to say, “Oh no, I’m not agreeing to a contract if this is in there.” I think that’s just wrong, it’s fundamentally wrong, it’s contrary to the 7th Amendment, and it deprives people have a meaningful day in court with a judge and a jury, and that is the American way.
Scott Glovsky: Andy, what’s the hardest part about being a trial lawyer, for you?
Andy Vickery: The hardest part of being a trial lawyer, I think, is fighting the perceptions that we’re the bad guys. You know, there are folks that like to brand us as greedy and to suggest that, “Oh, you’re just looking for the next place to cash in because of someone’s misfortune.” When, in fact, we have the quality of medical care we have in this country, because of trial lawyers. We have safe products in this country, because of trial lawyers holding corporations accountable when they market defective products. So I guess, when you say, “What’s the hardest part?” It’s the irksome criticisms, unfounded criticisms, that are leveled against us as a profession.
Scott Glovsky: Well, how does it feel when you’re at a party, and someone hears you’re a trial lawyer, and then makes a denigrating joke?
Andy Vickery: It feels horrible. I mean, that’s my profession. My email is [email protected] and it’s not just where you can reach me, but it’s who I am, it’s who I choose to be, and we have a wonderful history and legacy of trial lawyers in America. John Adams, the second President of the United States, was a trial lawyer. He defended a British officer in a very unpopular cause related to the Boston Massacre. I mean that’s the highest tradition of trial lawyers, standing up for people.
You know, you talk about a cocktail party, everybody likes to quote that portion of Shakespeare’s play out of context. “First thing we do, let’s kill all the lawyers.” Ha-ha-ha, isn’t that funny? First thing we do, let’s kill all the lawyers. Do you know what the context of that is? It was people talking about perpetrating anarchy. They were talking about, we’re going to take control, we’re going to tell people what to eat, and where to go, and how to dress, we’re going to rule them like they’re robots. And somebody says, in the play, “Well, how are you going to do that? How are you going to force that kind of oppression on people?” And they said, “Well, the first thing we gotta do is kill all the lawyers.” So, the context of that is that lawyers, from before the foundation of this country, are the guys, and gals now, that stand up for the rights of the little people, the disenfranchised. And it’s hurtful when they make fun of us and try to suggest that we’re motivated by greed and that we do not do things that are in the best interests of American society.
Scott Glovsky: Andy, what stories whether they’re poetry, songs, movies, books have you drawn inspiration from?
Andy Vickery: Oh gosh, there are so many, I’ll give you two. Of course, the classic in American literature is To Kill a Mockingbird. Atticus Finch’s speech about, you know, there’s one place in America, one place, and only one, where an ordinary citizen’s on an equal playing field with a big powerful corporation, and that’s in a courtroom. That’s a tremendous literary tribute to trial lawyers.
There’s a collection of short stories, or stories that are not necessarily fictional, most of them are non-fiction, in a book by Jim Perdue, Sr., called I Remember Atticus. Which harkens back, of course, to To Kill a Mockingbird. And there is a story in there about the trial of William Penn in England and the jurors who stood up against the power of the king, and the power of the judge. You know the judge sent them out and said, “Come back with your guilty verdict.” And they wouldn’t, and then the judge brought them in and said, “If you don’t come back with a guilty verdict, we’re gonna cut off your noses.” What? And then, they kept them without food and water, and the citizens rallied for days and days and secretly snuck in food and water to them, and the foreman, of that jury, died in open court. And the last words, with his last breath, in open court, before he died were, “Not guilty.” I draw a great deal of comfort from stories like that.
Scott Glovsky: What was your worst moment as a trial lawyer?
Andy Vickery: Oh gosh. You know, there are many. If you’re going to put your heart and soul into representing individual people and you’re really going to go to trial there will be cases that you lose. And so, for me, looking back on a 40 plus year career, the worst moment was when a 12 year old, named Christopher Pittman, was convicted of murder in South Carolina, in a case, which I handled on a pro bono basis. First of all he should have never been tried for murder as an adult, when he was only 12 years old. And the defense, he was under the influence of a very powerful mind-altering drug and when that verdict came in it hit me in the gut like a bowling ball.
Scott Glovsky: Tell me that story.
Andy Vickery: Ah, well, Christopher Pittman had a hard life. His mother abandoned him, at his birth. His father was in the military, his father was a harsh disciplinarian. His one source of comfort was his grandparents who lived in South Carolina, his father’s parents. He would go there, and stay with them. They called him Paw Paw’s Shadow, because he literally just hung to his grandfather was his shadow. We had a picture of him with a fishing pole and his grandfather, on a day they had gone fishing together. When he got to be about 12 years old and his mother came back in his life, briefly. And he thought, “Oh my goodness. I’ve got a mother now.” It was very brief and she ended up rejecting him again. He acted out in a way that you might expect to 12 year old to act out and, for some ungodly reason, he was put in an institution and he was given and antidepressant medications, that were not approved for children.
Scott Glovsky: What was the ungodly reason?
Andy Vickery: Because I think that’s the first knee-jerk reaction of many people in the psychiatric profession, in America. They have been bombarded with marketing from …
Scott Glovsky: What did he do?
Andy Vickery: What did he do?
Scott Glovsky: That led him to be …
Andy Vickery: Oh, he just ran away from home. He just ran away from home, because his dad was a harsh disciplinarian, his mother had left again, and he’d ran away, and they caught him, and they put him in this institution. And then, they load him up with psychoactive drugs, that aren’t meant for children. They gave him Zoloft, which is not meant for children, and the companies that manufacture that whole class of drugs knew that they could trigger violent behavior, really bizarre, truly bizarre, psychotic behavior in some people and especially children.
And Chris Pittman gets this drug and he exhibits all of the classic signs. The restlessness, agitation, almost out of his mind, and then one night … And he hasn’t been taking the drug long. It’s a classic case, they always happen in the first 30 days. I don’t remember exactly how many days, in his case, but less than two weeks he had been on that medication. And one night, he killed both of his grandparents, with a shotgun, and he sets their house on fire, and he takes off in a car, a 12 year old. And the police catch him, and he’s talking out of his head, he’s making no sense whatsoever. And the police don’t get his parents, and they don’t get him a lawyer, and the team up on him. Well, one cop plays Go Fish with him, with a 12 year old. The other one threatens him with eternal damnation, and quoting Bible scriptures, and based on their tactics they get a confession from him. That he, “All right, shot my grandparents.” It’s written in the police officers hand, it’s not written and Chris’ hand. There’s no video tape of it, documenting and what happened.
Of course, he had no defense. Except the fact that he was under the influence of a very powerful, mind-altering drug, known to cause these kinds of behaviors. And that has been my specialty, if you will, for 20 years. I say not in a prideful way but there’s nowhere in America that has more experience with the really weird, bizarre things people do on antidepressant medications than me.
And, of course, having been here at Trial Lawyers College, like you have, I had been told by Gerry Spence, “Give back to society, Andy. You must give back.” And so, I went to Charleston, South Carolina on my own nickel. For, I don’t remember how many weeks, 5 or 6 weeks. I begged the judge to send it back to juvenile court, where it belonged for a 12 year old. I mean even in Texas, Scott, where it’s the capital punishment capital of America. Even in Texas, we wouldn’t try a 12 year old as an adult, but they did in South Carolina. And I begged the judge to send it back and he wouldn’t. And I begged the prosecutor to Let me enter into some kind of a plea of involuntary manslaughter, because he was involuntarily intoxicated with a medicine given to him by a doctor. And the prosecutor wouldn’t do it. So we tried the case and we lost it.
Scott Glovsky: How did you deal with that pain?
Andy Vickery: It was gut-wrenching. It was absolutely gut-wrenching. We appealed the case to the South Carolina Supreme Court. I argued it in front of that Court. I tried to keep high hopes, you know, throughout the whole appellate process, but they rubber stamped that conviction. And then, we asked the United States Supreme Court to take the case and said, “For goodness sakes, this is a 12 year old, tried as an adult.” And as you know, they don’t have to hear. I’m sure your listeners may, or may, not know this, but the United States Supreme Court has, what we call, discretionary jurisdiction. They can hear, or not hear, a case as they choose and they chose not to hear that case. I didn’t talk about it publicly for several years after that. Finally, I came out, if you will, and gave a talk about it at my church, and since then at other places, and that’s how I’ve tried to deal with it. Just by talking about it.
Scott Glovsky: What was your proudest moment as a trial lawyer?
Andy Vickery: Ha! The proudest moment, as a trial lawyer, I’ve said many, many times, is the day that Albert Houston Carter got out of prison. Albert Houston Carter was a man that I represented for free, in the mid-seventies. He had gotten in trouble with the law when he was in the Air Force, in Georgia. He had an insanity defense, but it was tried under the old nineteenth-century standard of insanity, okay? And he was convicted and his conviction was affirmed by an equally divided court. Maybe your viewers don’t know that, it’s certainly timely since Justice Scalia’s death, because there’s only eight members on the United States Supreme Court. When a court has an even number of judges and they vote evenly on an appeal, it just merely affirms whatever happened by the court below. Carter’s conviction was affirmed on that basis. The court took the case, what we call on bank, the full court of appeals in New Orleans, like 12 judges, all heard the case. Because they knew that the standards of the law were out of touch with science, but they affirmed it.
Well, later he gets in trouble and, in Texas, we have what they call The Bitch Statute. A third felony and that’s it for you, life in prison. I sort of really sought out … I was appointed in one case of Albert Houston Carter’s and I sought out to represent him in another case, a federal habeas corpus case, without pay. And sought it for years and persuaded, first Mr. Carter, to let me just … Who’s a very bright man, by the way. He would right writs for other prisoners and he got other prisoners out of jail, but he couldn’t get himself out of prison.
I persuaded him that there was one theory, that he had raised being sort of a layman lawyer, if you will, a self-taught prison lawyer. There was one winner in there, and I pursued that, and on the Friday before Father’s Day, in, I don’t remember the year, this would have been maybe 1980. With, not only his son in the courtroom, but grandchildren that he had never met. On a Friday afternoon, after arguing the case all day long, United States Federal Judge Gabrielle McDonald hit that gavel down and said, “I’m granting this writ of habeas corpus. Release this man from prison.” And he walked out of prison that day, a free man, lived the rest of his life as a free man.
Scott Glovsky: Wow. Andy, on behalf of your clients you serve, you will serve, you have served, and for all of the amazing things that you’ve done and continue to do for justice, thank you very much and thank you for joining us.
Andy Vickery: Oh, you’re very welcome, I’m flattered.
Scott Glovsky: Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.ScottGlovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y.com and I’d love to hear your feedback. You can also check out the book that I published called, Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.