Our Texas Governor recently made an outrageously incorrect statement: "When we came into the union in 1845, one of the issues was that we would be able to leave if we decided to do that." Texas schoolchildren could tell you that no such deal was made; the real deal permitted Texas to self-divide into as many as five states. (The contemplated effect would have been that four new slave states were created if the northern territories turned free.)

Why have we heard this line from our Governor, last elected with a 39 percent plurality? Why would he expose himself to ridicule from all but the most extreme in a state where only 41 percent of recently Gallup-surveyed voters are willing to self-identify as members of his party? The reason is the most extreme slice of Texas will determine whether Perry wins his party's nomination for Governor next March in a hotly contested primary. He must get through the primary in order to stand a chance in a general election in what is now a "majority-minority" state. He must somehow rouse his dwindling base, and has apparently determined that inflammatory, unpatriotic language will suffice.

The Governor continued to say, "[I]f Washington continues to thumb their nose at the American people, who knows what may come of that?" That secessionist comment came after Perry implied that Texas hero Sam Houston's resistance to "oppression" supported the extremist notions of the current Governor. He forgets why General Houston - Commander in Chief and hero of San Jacinto, first President of the Republic of Texas, first Senator from Texas, and Texas Governor - is revered as a "Profile in Courage." Houston described his "wisest and most patriotic vote" as his 1854 vote against repeal of the Missouri Compromise and therefore against reopening of the extension of slavery, in order "to harmonize and preserve this Union." Houston's last act as Governor was his opposition to secession, his refusal to take the Confederate oath and his declaration that he was "stricken down because I will not yield those principles which I have fought for.... The severest pang is that the blow comes in the name of the state of Texas."

Please understand Texans' shame at the current Governor's race-baiting, code words of secession, the twisting of our history, and the mangling of the reputation of our supremely patriotic Sam Houston for whom, in the words of John F. Kennedy, "the Union was his guiding star."

By Barbara Ann Radnofsky, wife, mother, teacher, mediator and lawyer, practicing on both sides of the docket before retiring from Vinson & Elkins, LLP in 2006. She has been listed in each of the past 16 years in "The Best Lawyers in America"

Folks fret about trial lawyers. Are they the lawyers we should really fear? The attacks on trial lawyers continue, with recent reports of punished and jailed consumer-protection lawyers.

The attackers fear that all lawyers protecting consumers go too far, but cite the successful prosecutions of extremist trial lawyers, brought to justice and punished by the court system created by our founding fathers. The trial law system works on accountability.

Lawyers are like us: mothers, fathers, businessmen, husbands, wives, teachers. There are good lawyers and bad lawyers: those serving society and those abusing society. We have good and bad lawyers, just as we have good and bad businessmen, good and bad mothers and fathers, good and bad teachers, preachers and athletes.

The lawyers we should fear are the government lawyers of the executive branch, operating with no accountability, in secret, authoring memos justifying widespread eavesdropping on Americans at home without warrant or legal permission of any kind. When those lawyers' wrongdoing was exposed (only through the mistaken exposure of a secret wiretap), the executive branch successfully lobbied Congress to use their clearly false memos authorizing illegal wiretaps to provide immunity to the telecommunications companies blindly following their legal advice. The result: successful advocacy of a "Nuremberg defense" for telecommunications companies to escape judicial scrutiny. The defense: "We were simply following orders, and relied on the executive instructing us to tell us it was legal."

We should fear the Texas Attorney General's Office lawyers who approve vague standards that invite lawsuits. Most recently, the Texas AG ruled on Bible teaching, well aware of the Texas Education Code vague guidance, including the Section 28.011 provision that " ... content decisions are left to local district discretion." This isn't an issue of how to incorporate treasured local legends; this is the teaching of the Bible.

The criteria in the Old and New Testament courses in section 74.36 of Title 19 of the Texas Administrative Code include references to analysis of "data collected," evaluation of "the validity of the source," direction to "interpret empirical data" and the requirement to "identify bias" in the material.

What guidance is this? Responsible people know these directions, interpreted at a local level, will cause teachers, acting with the best of intentions and in good faith, to accidentally violate the legal requirement that any Bible teaching taught in public schools not support a particular faith. The U.S. Supreme Court has approved teaching the Bible when presented objectively, as a part of a secular program, not as doctrine or in a devotional manner.

Where are the state lawyers with courage to require guidance so teachers can teach without litigation?

The state lawyers failed us, inviting expensive litigation, burdening our local districts, taxpayers, administrators and teachers.

We should fear the state of Texas attorneys who take mandates by our Legislature for teacher pay raises and then force local school districts and taxpayers to pay for those mandates. The Texas attorney general recently ruled local districts must pay for the teacher pay raise voted in by the Legislature in 2006.

In the teacher pay-raise decision, the Texas attorney general refused to address constitutional issues. And, in assessing the law's "Fiscal Note" with a $40 plus million per year cost and "state contribution," the AG claimed, in tortured reasoning, that he didn't know the contribution source for the "state contribution." You don't have to be a lawyer to know the logical answer. The "state of Texas" is the source of the "state contribution."

These are the lawyers we should fear.

Where is their courage to provide the required legal guidance, forcing state government to find the funds to pay for its mandates?

These are the lawyers who should be held accountable.

Radnofsky is a Houston attorney who has been listed in "Best Lawyers in America" for each of the past 15 years. She can be e-mailed at barbara@radnofsky.com.

What deters a lawsuit most? After nearly 30 years of law practice, I've learned what deters most filings — a high chance of losing and the prospect of wasting money and effort. What encourages a lawsuit? A solid chance of winning.

The Texas attorney general, the Texas Education Agency and the Legislature have recently set up Texas schoolteachers to be sued. State leaders punted on the provision of guidelines for teaching the Bible. They can't figure out guidelines, so they figure schoolteachers will. They contentedly place Bible teaching standards within the Texas Education Code Section 28.011 provision that " ... content decisions are left to local district discretion."

State leaders treat the teaching of the Bible as if it were the re-telling of local lore. The criteria in the Old and New Testament courses in Section 74.36 of Title 19 of the Texas Administrative Code include references to analysis of "data collected," evaluation of "the validity of the source," direction to "interpret empirical data" and the requirement to "identify bias" in the material.

What guidance does "identify bias" and "validate the source" give to the teacher asked to teach the Bible? Responsible people know the impossibility of such directions to analyze the "data collected" in the Bible.

These guidelines create the uncertainty and varied, local approaches guaranteed to violate the legal requirement that public school Bible teaching not support a particular faith. In a 1963 decision, the U.S. Supreme Court approved teaching the Bible when presented objectively as a part of a secular program, not as doctrine or in a devotional manner.

Without good guidelines, teachers acting in good faith will make their own interpretations, based on their own experience, knowledge and training. Those with religious training will likely use it, as state leaders have failed them in providing any other guide. If they support a particular faith or teach doctrine, they will run afoul of the law.

Why should we set up our teachers to accidentally break the law, exposing them and the school districts to expensive, time-consuming litigation, which taxpayers will have to fund? Why not avoid the litigation in the first place?

The likely result of this litigation will be: rulings that, (1) through no intentional misconduct, sectarian content and advocacy occurred, (2) that TEA, the Legislature and the attorney general abdicated their responsibility to guide the teachers and students, and (3) the courts must either write the guidance or members of the Legislature must go back and do it themselves.

The litigation could easily take three to five years. And the guidelines that should have been developed and implemented today will have taken several years, numerous lawsuits and millions of dollars. This is one road that we don't have to go down.

How can we avoid litigation over the teaching of Bible in the schools?

Offer reasonable guidelines and training, so that teachers and administrators know what will pass constitutional muster and litigants know their challenges will be met with strong documentary evidence of compliance with an accepted guideline.

The better the guidance and understanding of boundaries, the less basis for suing. Good guidelines, like good fences, make for good neighbors.

We should demand that the legislators, TEA and Attorney General Greg Abbott wake up and do the hard work necessary to give the proper guidelines to the teachers of this state.

Radnofsky (barbara@radnofsky.com) is a lawyer in Houston.

Ask Barbara Radnofsky what she likes best about practicing law and the answer comes without hesitation. Helping people,” says Barbara, a partner in V&E’s Houston office. “There’s no doubt about it.” Mixed in among her defense work at V&E, Barbara has taken on a number of personal injury cases for plaintiffs over the years, including litigation that allegedly defective utility lighters caused injuries and deaths.

But that passion for lending a hand extends outside of the courtroom as well. For more than a decade, Barbara has taught area students how to resolve conflict through a peer-mediation program that promotes tolerance, listening, and understanding. Designed to stop on-campus violence, the program is now taught by Barbara at Spring Branch Middle School and the Monarch School, and to Upward Bound students in Houston. “This is one of the most rewarding things I’ve ever done,” the longtime litigator said. “And it really makes you feel great when you realize students are benefiting from it.” Mediation equips students with communication and critical-thinking skills to help solve problems when tempers flare over stolen books, gossip, and name calling in the classroom.

A group of “mediators”—chosen from a diverse cross-section of students each school year—are trained by Barbara to help reconcile differences between warring parties before they result in violence. Among other things, the mediators are taught to make eye contact when overseeing a conflict. The students also are given a mini course in public speaking, and they teach by demonstrating and answering questions about how mediation works, including sophisticated ways of looking past positions to determine true interests. Most of the meetings to resolve student disputes are taken care of in one hour or less.

Students accept the process, Barbara says, largely because it does not involve a teacher or principal and is promoted as an alternative to detention or expulsion. Nevertheless, serious problems such as the possession of drugs or weapons are not referred to student mediators. In addition to acting as mediators on campus, students are taken on field trips by Barbara to demonstrate what they’ve learned during the process.

For the past several years, the students have shown off their skills and fielded tough questions about the program from the Texas Supreme Court, State Bar conferences, the CPR International Institute for Dispute resolution, and Rice University students. “It’s a confidence-builder and an eye-opener for kids who’ve never interacted professionally with adults or been able to be in a position where they teach,” Barbara says. “I enjoy all my charitable work for AIDS, the Anti-Defamation League and for political causes, but this is the most direct, hands-on involvement and some of the most satisfying.

“It would be easy for any attorney or person trained in mediation to conduct similar programs in her local schools,” she adds. “It costs next to nothing and is worth any amount of time you could put in.”

Barbara Ann Radnofsky is an ideal candidate -- intelligent, articulate, energetic and clearly not afraid of long odds. In many races against an incumbent this year Radnofsky would be a formidable opponent. But Radnofsky, a Houston attorney, is not in a race against just any incumbent. She is challenging a politician whose very mortality sometimes seems in question. Radnofsky is the Democrat running against one of the biggest vote-getters in Texas history, Sen. Kay Bailey Hutchison, a two-plus-term Republican. In a chat at a fund-raising reception in Houston's Museum District, Radnofsky implored me not to portray her race as a hopeless candidate standing on the railroad tracks in front of a fast freight. That, however, is what the race looks like to every Democrat and Republican I know. "She just can't get any traction," said an Austin Republican operative who believes Radnofsky, given her bare-bones funding, has run about as good a campaign as possible.

And on Nov. 7 it will not matter if Radnofsky is mowed down at full throttle, the usual fate of Hutchison opponents, or at a slightly slower speed in what may be the least Republican year in Texas in more than a decade. That doesn't take anything away from Radnofsky's bravery or her sound views on important issues, from Iraq to terror to immigration and health care. It just means that her chances of success on Nov. 7 range from slim to none. You can see the only scheduled Hutchison-Radnofsky face-off in a debate Thursday from San Antonio that will be broadcast on Houston's KUHT, Ch. 8, and C-SPAN at 9 p.m.

In the debate, Radnofsky may question what might be considered Hutchison's overstaying her political visa. Hutchison promised in her first campaign and early in her Senate career to serve only two terms.

Term limits stink, but candidates who have rashly volunteered that they will leave the stage must defend casting the pledge, however silly, aside. Hutchison says she still believes in term limits, but: "Texas would be disadvantaged if its most experienced legislators stepped down while other states were not subjected to the same requirements."

Just getting Hutchison's agreement on the debate was a breakthrough for Radnofsky. It will be the most television exposure she has received. Her budget hasn't allowed TV commercials, and even if the heavens should open in the final days, only a cable buy is likely. Radnofsky spokeswoman Katie Floyd said, in fact, that a spot, in which Radnofsky says of Hutchison: "My opponent is a puppet of the Bush administration," will get limited airing after the debate on cable in South Texas and some metropolitan areas. In a filing this week, Hutchison's campaign reported $9.2 million on hand as of Sept. 30, after spending $3.1 million. Radnofsky had only $339,000 left, after spending $1.1 million, including a primary race. Radnofsky remains amazingly upbeat near the end of a rugged, underfunded campaign. "We've been poking her with a stick for two years," Radnofsky said. The Democrat said her crew eschews hotels and is fueled on one meal a day. She didn't seem to be joking too much about a candidacy with only two paid staffers.

The Democratic Senatorial Campaign Committee, looking at public polls and Hutchison's electoral record, has given no money to Radnofsky's challenge. Any significant national Democratic financial assistance has always been unlikely and has grown even more improbable. Other challengers' races have become increasingly viable, and at least one incumbent Democrat -- appointed Sen. Robert Menendez of New Jersey -- is struggling. Radnofsky has grown accustomed to the kindness of strangers. Featured at the Houston fund-raising reception was Sen. Russ Feingold, R-Wis., who as a prospective antiwar presidential candidate was perfect for the center-left gathering at an art dealer's home.

Feingold promised to take up Radnofsky's race with Sen. Charles Schumer of New York, chairman of the Democratic Senatorial Campaign Committee, but wisely admitted he couldn't promise anything. "I ain't counting on it," Radnofsky said later. A donor's exchange with Feingold allowed Radnofsky to acknowledge the fine line facing Democrats in a war environment. The questioner was critical of Senate Democrats who supported the Bush administration's assault on habeas corpus. "It's about political fear," Feingold said. Radnofsky conceded later that it would take courage to vote against terrorism bills.

Feingold recalled that in 2004 he survived a re-election race in which he had $11 million thrown into a campaign against him and yet carried the state by 340,000 votes while Bush won the state by only about 10,000. Thanks, senator, but this is not Wisconsin, as Radnofsky knows by now. Hines is a Houston Chronicle columnist based in Washington, D.C. (cragg.hines@chron.com)

AUSTIN, Texas (AP) - Houston attorney and Democrat Barbara Ann Radnofsky is running for Texas attorney general.

Radnofsky was the Democratic nominee for the U.S. Senate in 2006. She said Tuesday that if elected attorney general, she'll protect Texans against anticompetitive and deceptive trade practices by insuruance companies and utilities.

Radnofsky said she will also work for stronger controls on social networking sites on the Internet to protect children from predators.

Radnofsky lost the 2006 Senate race in a landslide to Republican Kay Bailey Hutchison but has kept her statewide organization in place.

Houston litigator Barbara A. Radnofsky really does have it both ways. Radnofsky does defense work at Vinson & Elkins, but also runs a small plaintiffs’ personal-injury practice within her big firm. It’s an unusual arrangement but one that works because she picks PI cases in discrete areas and avoids client and issues conflicts.

Radnofsky isn’t the only Texas lawyer with defense blood running through her veins who is finding a way to do personal-injury work, but there aren’t too many of them. For that matter, the unusual setup is not encouraged at many other large Texas firms.

There’s simply too much potential for conflicts at big full-service firms, and big firms, with their standard of hourly billing, aren’t set up to fund personal-injury litigation, say lawyers at other heavyweight Texas firms. Unless the potential PI client is already an important client, or related to one, the big firms aren’t likely to take on personal-injury clients who come knocking at their doors.

“We would turn it down almost all of the time,” says W. Frank Carroll, a senior litigation partner in Dallas’ Winstead Sechrest & Minick.

That’s not Radnofsky’s mindset. The V&E partner says she’s taken three plaintiffs’ personal-injury suits to trial and settled seven others during the last decade while at V&E. The cases include premises-liability suits, a wrongful-death suit filed by the family of a woman who died after a Caesarean section, and litigation alleging defective barbecue lighters caused injuries and deaths.

“I have generally taken cases involving kids or women,” she says. “It’s got to be that mix of fantastic damages, great cause and no conflict.”

She doesn’t see a philosophical disconnect because she believes in the truth in the facts of all of her litigation. “When I take a case, it’s good, it’s got some deserving people,” she says.

Former V&E managing partner Harry Reasoner, who signed on to Radnofsky’s idea about 10 years ago when she initially asked the firm to allow her to take some plaintiffs’ personal-injury suits, says it works because of Radnofsky’s careful screening

“She doesn’t bring any cases that don’t deserve to be brought. She’s had some terrific success,” says Reasoner, who says years ago he filed a PI suit against an airline after an airplane went down between Houston and Dallas.

Brock Akers of Phillips & Akers in Houston is another Texas defense lawyer who straddles the imaginary plaintiffs-defense bar by taking a select few personal-injury suits when the opportunity arises and he believes in the case.

“For a defense lawyer, after a while it gets hard working for some big company trying to keep money out of the hands of orphans and widows,” Akers, a longtime board member on the Texas Association of Defense Counsel, says. “I like to be a nice guy sometimes.”

It’s a change of pace, he says. In fact, he says a medical malpractice suit, in which he represented a plaintiff who was unhappy with a penile implant, is “my favorite and funniest lawsuit ever.”

Radnofsky joined V&E in 1979 after graduating from the University of Texas School of Law, and she did a variety of litigation over the years. In the early 1980s, she began defending blood banks from litigation filed by people who allegedly contracted HIV from blood transfusions, a practice that led her to expertise in the med-mal area and broader involvement in pro bono work.

A decade ago, Radnofsky says she went to Reasoner and asked if she could do some plaintiffs’ personal-injury work. “He was very positive” about the proposal, she says, allowing her to take the giant leap from representing the plaintiff in a commercial case to representing the plaintiff in a personal-injury suit.

She handled several suits on behalf of people who were injured or killed in fires she alleges were caused by defective safety mechanisms on multipurpose lighters commonly used to ignite fires for barbecues or fireplaces. Radnofsky worked closely with the Consumer Product Safety Commission, and helped the commission develop safety standards for the lighters that were released in 1999.

“It was the best legal work I’ve done and it was the easiest,” says Radnofsky, adding that she no longer takes lighter suits because the standards led to safer products.

Radnofsky says she’s taken three plaintiffs’ suits to trial. She lost one in August 2001 in Houston County that was filed on behalf of a girl abducted outside a theater. A lighter suit in federal court in Missouri settled in 2002 for a confidential amount the night before closing argument. And she also reached a confidential settlement during trial in a premises liability suit filed in Dallas.

Radnofsky says the most difficult aspect of doing plaintiffs’ personal-injury work at V&E is working around conflicts. She says she looks at about two possible suits a week, and takes only about one in 100.

Reasoner says V&E has an elaborate software program to screen for client conflicts, but issue conflicts require more judgment. Any lawyer with a new piece of litigation, particularly when it’s a new client, would need to get approval from a section head before taking the suit. Also, all significant contingent-fee suits, must be approved by a committee, he says. “You just have to be sure you communicate,” Reasoner says.

Radnofsky says she has two active suits right now, including one filed in 2002 in connection with a drunk-driving death and a different one she is preparing to file but declines to discuss. She also is considering a med-mal suit, and is waiting for the 5th U.S. Circuit Court of Appeals to rule on her appeal of a summary judgment ruling in Bryan Flock, et al. v. Scripto-Tokai Corp., et al., a lighter case pending in federal court in Houston.

The 46-year-old member of the Texas Association of Defense Counsel is board certified in personal-injury trial law and civil trial law. She’s also a mediator and arbitrator who serves as head of the of the firm’s alternative dispute resolution group. Most of her nonplaintiff practice is medical malpractice defense, mediation and arbitration.

She says she’s learned a lot about the practice by doing plaintiffs’ work. For instanct, she’s learned that a principle or an equitable remedy may be a more important goal for plaintiffs than money. “They want for it to have not been in vain,” says Radnofsky.

She believes in representing plaintiffs makes her a better defense lawyer because she has a greater understanding of what plaintiffs’ lawyers want. For instance, she says, she now knows how desperately the plaintiffs’ bar wants a trial setting. And she can better gauge who on the other side is undervaluing their cases.

Radnofsky says she hasn’t had any problems with her defense clients because of her plaintiffs’ work. But she hears amusing stories often about competitors who approach her clients at cocktail parties and try to steal them by informing them about her work on the other side of the docket.

“People know what they are getting, I hope,” she says.

“The ones who like me think it makes me a better lawyer,” she adds.

Bill Teague, the chief executive officer of Gulf Coast Regional Blood Center in Houston, has nothing but praise for his outside counsel, Radnofsky, and her skills. He says she’s nationally recognized as an expert in litigation stemming from blood donations, particularly as it relates to HIV and hepatitis. Representing plaintiffs in personal-injury litigation simply shows her commitment to justice, suggests Teague, who has worked with Radnofsky for more than two decades.

“It also, to me, demonstrates her commitment to whoever she thinks is right. If she thinks somebody is being ripped off, she’s going to do her best to take care of them [or] if she thinks somebody is being falsely accused,” he says.

Reasoner, V&E’s former managing partner, says he’s heard some low-level complaints about the plaintiffs’ practice from some defense partners at V&E who are uncomfortable with it because “they are just kind of defense lawyers to their very soul.” But Reasoner points out that those lawyers aren’t turning down any share in contingent-fee profits.

She won’t put an exact dollar figure on it, but Radnofsky says the “overwhelming portion” of the revenues she brings into the firm comes from her contingent-fee work.

Radnofsky says the potential riches of a plaintiffs’ PI practice will not lure her from V&E, her firm home for 23 years. She appreciates the firm’s support for pro bono work, and likes the strength of a large firm.

“Nothing could compare to this,” she says.

Both Sides

Firm consultant William C. Cobb of Houston says lawyers such as Radnofsky can maintain a plaintiffs’ practice within a large firm as long as the lawyer truly understands the risks and potential rewards of investing in contingent-fee litigation, and appreciates the fact the firm is essentially a venture-capital partner in the litigation.

“There will have to be a tremendous amount of trust,” Cobb says.

He also says that large firms should avoid investing more than 5 percent of their annual revenues in contingent-fee cases.

Tom Crosley, president of the San Antonio Trial Lawyers Association, says it’s unusual for a firm the size of V&E to have a lawyer doing plaintiffs’ work, but not so extraordinary at smaller trial firms with defense dockets.

“Ten years ago, I’d say very unusual, but I’ve seen more and more defense firms cherry picking plaintiffs’ cases,” says Crosley, a partner in Branton & Hall in San Antonio.

Carroll, the Winstead lawyer, says attorneys at his firm will occasionally handle a traditional plaintiffs’ suit, but almost always when it’s an existing business client, or one of their relatives. “We sort of do it as an accommodation to our regular clients, like we don’t regularly do domestic relations things,” he says.

At Baker Botts, Joseph Cheavens, the head of the firm’s trial practices, says lawyers have taken on only a very few personal-injury, contingent-fee suits over the years. The firm wants to avoid issue conflicts with regular clients, he says.

Baker Botts lawyers will refer cases to personal-injury lawyers they know, but the firm doesn’t take a referral fee.

“Say the general counsel of ‘X’ company calls me and says, ‘One of our guys just got real bad hurt in a car wreck’ or had a med-mal [problem] or their kid was killed or something horrible; depending on the type of case, the amount of money, there’s any number of good lawyers to refer it to,” Cheavens says.

Cheavens says he considers it a personal favor to refer a case from a client under those circumstances. (He doesn’t expect a fee, but a bottle of wine at the holidays from the plaintiffs’ lawyer might be nice. He says he once referred a case to a prominent plaintiffs’ lawyer in town, and the lawyer later sent him a shirt.)

Like Radnofsky, Jenkens & Gilchrist shareholder Robert Thackston says plaintiffs’ personal-injury work has made him a better defense attorney.

“I did learn that some defendants will literally try to bury you in paper. It’s possible. I’ve hear plaintiffs’ lawyers say that it is very frustrating to work against people who are billing by the hour…perhaps designed to just wear you down,” says Thackson.

Thackston, of Dallas, says he’s handled a few plaintiffs’ personal-injury suits over the years. He says he recently assisted shareholder Christopher Brown of Houston with a suit filed on behalf of the family of Kristie Tautenhahn, a law firm employee killed in an elevator in a downtown Houston building during flooding from Tropical Storm Allison. The suit, Carl Tautenhahn, et al. v. Hinest Interests Limited Partnerships, et al., filed in 2001, in probate court in Harris County, settled in 2002 under confidential terms.

Thackston says plaintiffs’ lawyers are usually scrappier than defense lawyers, and he’s tried in a sense to emulate that drive by being aggressive instead of defensive.

He says, “It’s a different perspective when you are not getting paid by the hour and you are not going to get paid unless you win. It’s interesting to see both sides of it.”