Low-profile judge thrust into the spotlight

Legal News Line Jul. 30, 2008, 11:36am

Kirk Johnson

TEXARKANA, Ark. (Legal Newsline)- Texarkana, home to perhaps the largest class action lawsuit in U.S. history, is more well-known for being divided down the middle by the Texas and Arkansas state line.

The city is home to roughly three-fourths of Miller County's 40,000 residents, according to 2000 census data.

Texarkana, Texas is legally its own city, with its own state government, but it does share a relatively famous post office that straddles the state line. Inside, a person can stand with one foot in each state.

Just as the post office sits prominently in the center of the two Texarkana's, Miller County's Eighth Judicial District South Judge Kirk Johnson now sits prominently at the bench of a class-action lawsuit that is garnering national attention and the watchful eye of tort reform lawyers.

As of last count, Texarkana plaintiff attorneys in the case known as Colossus, had settled for as much as $300 million. With 581 insurers originally named in the suit, the litigation has hardly begun.

The case centers around a complaint alleging hundreds of insurance companies worked with three software companies to undervalue auto claims. A program called "Colossus," the plaintiffs argued, allowed insurers to undervalue claims, which the plaintiff contends is a conspiracy to commit fraud.

Though Johnson has maintained a relatively low-profile, his role as the judge in the case has begun to attract attention beyond the city limits. Tort reform experts believe the case is fast becoming a poster child for all the reasons the Class Action Fairness Act of 2005 was needed.

"This is your typical sort of class-action shakedown," said Jim Copland, director of The Manhattan Institute for Policy Research. "The discovery costs are massive, that's what this is really about."

The case landed before Judge Johnson just after Texarkana-based lead plaintiffs' attorney John C. Goodson filed the suit on Feb. 7, 2005 against Computer Science Corporation's software, Colossus, and every insurance company that uses it.

"It is important to realize that this suit was filed the day before the Class Action Fairness Act of 2005 was instituted," Copland said.

The Class Action Fairness Act of 2005 now pushes legislation like Colossus into the federal courts. Plaintiff lawyers typically preferred local courts and local juries who "are traditionally sympathetic to the local plaintiffs over big businesses," Copland said.

All of which places Judge Johnson squarely in the spotlight of the hundreds of defendants named in the suit with hundreds of millions riding on its outcome.

From the bench

Johnson first took the bench in 2002 after serving as Miller County's District Court judge. He soundly defeated Demaris Hart with 61 percent of the vote, according to the state election documents.

Hart said that despite running against Johnson, she is a fan of his work.

"It was an open seat, and we're both the same age," she said of her decision to run in 2002. "It was just the right time."

Hart has become a big fan of the judge. "He's done a whale of a job," she said. "He does what I would have done and that is go to work early. He's ready to be on the bench at nine."

Hart mentioned Johnson's success with class action lawsuits, but when asked more she declined comment. "I'm just a divorce attorney," she said. "I don't know diddly about that."

Before taking his post on the bench, Johnson worked as a prosecuting attorney. Prosecutor Brent Haltom said that experience, as well as his tenure on the district court makes Johnson highly qualified.

"He's a good judge, he's fair and treats everybody courteously," Haltom said. "He's always very knowledgeable in the law. That helps make correct decisions on the bench."

Haltom said Johnson's work on the class-action suits is known within the legal community, even though as a prosecutor he has no direct knowledge.

"Those cases have made headlines," Haltom said. "Judge Johnson has participated in them and did a good job."

The 59-year-old judge is by most accounts well-known and well-liked, a fixture in Texarkana.

"I don't remember him ever having any opposition at all," said Jerry Sparks of the Texarkana Chamber of Commerce. "That in and of itself is normally a very positive thing around here."

Sparks said Texarkana has very little elitism, calling the social strata "very flat," but that Johnson can be found in the same circles of other judges, business leaders and politicians.

"There is a group who are going to be fairly well informed," Sparks said, "and know the folks who play golf, or go to the Presbyterian church or one of three or four other things that are popular around here. It's not a small group, but folks know each other."

Since taking the bench, Johnson has heard a wide variety of cases, everything from rape, robbery and million-dollar lawsuits.

In 2007, Johnson sentenced a man for an aggravated robbery charge. The local newspaper, the Texarkana Gazette, reported that the suspect walked into a penny arcade, by his own admission drunk and on drugs, and demanded money. An attendant, who refused to give the suspect money, pulled a pocketknife and shoved the man out of the door. Johnson gave the two-time felon 40 years in prison.

Another Johnson verdict that made headlines came when a man wanted on rape charges tried to fake his own death. Johnson, according to a story in the Arkansas Democrat Gazette, challenged the suspect in court, getting him to admit that he didn't jump off the bridge as his wife and friends reported to police. He sentenced the man to a total of 35 years in jail.

"Even if I gave you 400 years, the harm caused by what you have done to her can never be undone," Johnson said regarding the rape of the victim.

Miller County Sheriff Linda Rambo, like Sparks, has been in Texarkana for more than 25 years. Both say they have known Johnson from a distance for all of that time, though not well.

"I hardly ever see him," Rambo said of Johnson. "I know he comes through, says 'Hello,' and heads to court, but I've know him for a long time."

Asked about the relationship between the police and the courts, Rambo said she preferred not to discuss it, though she expressed concern over what she sees in courts sometimes.

"I have learned how to work with (the judges) some," she said. "I'd see some poor sonofabitch in here that's going to rot and I think I ought to see what I can do to make it right."

So it helps who you know, she is asked?

"This is true," she said. "If you know the better people, than to hell with me. But I'm not just thataway, I learned to play the game a little."

Rambo said she can't wait for her term to expire in December because of the demands of the job.

"I will be outta here in December," she said with a laugh, "if the good Lord's willing and the creeks don't rise, and if the creeks do rise I sure as hell can swim."

Class-action suits

Sparks is the first to admit that the "sleepy community" of Texarkana is hardly a hot spot for legal news. But he has noticed how in recent years, attention that used to come primarily from the area's federal court has now shifted more to the state court.

Most people are more interested in a murder trial or high-profile divorce, he said. Despite millions in settlements to local law firms, Sparks said the economic impact for the city is minimal.

The Colossus case is not Johnson's first class-action suit.

In 2004, Johnson presided over another class-action lawsuit that was first filed the year before Johnson took his current post.

Plaintiffs' attorneys from a Texarkana law firm sued four firms for over-charging clients for costs and expenses paid to third-party travel vendors. The companies settled for $109.5 million, according to published news reports.

Now as Colossus court orders pile up before Johnson, the judge faces criticism from defendants in the case for delaying decisions and over-scheduling of motions. Some defendant motions to dismiss have been pending before the court since 2006.

In many ways, Johnson's role in what some have described as the largest class-action suit in history may be the last time such a case could continue in local courts. Johnson, who has built a successful career largely out of the public spotlight, is making legal history -- though his community is probably mostly unaware.

"For the most part," Sparks said, "most of the people aren't going to know anything more about him other than he's been around a long time and he's generally liked."

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