In the Supreme Court of Texas ______

FILED 18-0426 10/31/2018 11:19 AM tex-28690099 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. 18-0426 In the Supreme Court of Texas ______

WILLIAM A. BREWER III, Petitioner, v. LENNOX HEARTH PRODUCTS, LLC; TURNER & WITT PLUMBING, INC.; STRONG CUSTOM BUILDERS, LLC; THERMO DYNAMIC INSULATION, LLC; STATE FARM LLOYDS INSURANCE COMPANY; KEN AND BECKY TEEL; ROSS AND MEG RUSHING, ______Respondents .

On Appeal from the Seventh Court of Appeals at Amarillo, Texas No. 07-16-00121-CV

BRIEF OF THE INSIGHTS ASSOCIATION AS AMICICUS CURIAE IN SUPPORT OF PETITIONER

Patrick J. Neligan, Jr. Texas Bar No. 14866000 John D. Gaither Texas Bar No. 24055516 NELIGAN LLP 325 N. St. Paul St., Suite 3600 Dallas, Texas 75201 Telephone: (214) 840-5300 Facsimile: (214) 840-5301 [email protected] [email protected]

ATTORNEYS FOR AMICUS CURIAE INSIGHTS ASSOCIATION TABLE OF CONTENTS

INTEREST OF AMICI CURIAE AND DISCLOSURES REQUIRED BY TEX. R. APP. P. 11 ...... 1

PROCEDURAL HISTORY ...... 2

INTRODUCTION ...... 3

OVERVIEW OF THE RESEARCH AND POLLING INDUSTRY ...... 5

A. What is Bona Fide Research? ...... 5

B. What is “Push Poll”? ...... 6

C. Discerning Bona Fide Research From “Push Polls” ...... 8

THE RESEARCH STUDY IN DISPUTE IN THE INSTANT CASE IS A BONA FIDE RESEARCH STUDY AND NOT A “PUSH POLL” ...... 10

A. Length of the Calls and the Questions Asked ...... 10

B. The Number of People Called, The Random Sampling, And the Intended Number of Respondents ...... 11

C. The Survey Tested Positive, Negative, and Neutral Messages ...... 12

D. Identification of the Research Company Conducting the Survey ...... 13

E. Standards and Practices Governing the Contact of Cell Phone Users ...... 14

AFFIRMING THE LOWER COURTS’ DECISIONS WOULD EFFECTIVELY PROHIBIT ETHICAL, VALIDLY CONDUCTED SCIENTIFIC RESEARCH ...... 15

CONCLUSION ...... 17

PRAYER ...... 18

CERTIFICATE OF COMPLIANCE ...... 19

CERTIFICATE OF SERVICE ...... 19 TABLE OF AUTHORITIES

Page(s)

Cases

Brewer v. Lennox Hearth Prods., LLC, 546 S.W.3d 866 (Tex. App—Amarillo 2018, pet. filed) ...... passim

Statutes

N.H. REV. STAT. ANN. § 664:2 (2014) ...... 6

RESEARCH FAIRNESS ACT OF 2012, H.R. 5915, 112th ...... 6

TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ...... 14

Rules

Tex. R. App. P. 11 ...... 1

Tex. R. App. P. 9.4(e) ...... 19

Tex. R. App. P. 9.4(i) ...... 19

Tex. R. App. P. 9.5(b)(1) ...... 19

Other Authorities

Jonathan S. Fox, Push Polling: The Art of Political Persuasion, 49 Fla. L. Rev. 563 (1997) ...... 7, 9-13

Evan Gerstmann and Matthew J. Streb, Putting an End to Push Polling: Why it Should Be Banned and Why the First Amendment Lets Congress Ban It, 3 Election L.J. 37 (2004) ...... 6-11

Marjorie Connelly, Push Polls, Defined, New York Times, June 18, 2014, available at https://www.nytimes.com/2014/06/19/upshot/push-polls- defined.html ...... 12, 13

Stuart Rothenberg, For the Thousandth Time, Don’t Call Them “Push Polls,” Roll Call, March 8, 2007, available at https://www.rollcall.com/news/-17368-1.html ...... 7

“AAPOR Statements on ‘Push’ Polls,” available at http://www.aapor.org/Standards-Ethics/Resources/AAPOR- Statements-on-Push-Polls.aspx ...... 8

“Calling Cell Phones: The TCPA and Ethical Best Practices for Researchers,” available at https://www.insightsassociation.org/issues-policies/best- practice/calling-cell-phones-tcpa-and-ethical-best-practices- researchers; ...... 14

“Deceptive Advocacy/Persuasion Under the Guise of Legitimate Polling,” available at https://www.insightsassociation.org/issues- policies/best-practice/push-polls-deceptive-advocacypersuasion- under-guise-legitimate-polling ...... 7, 9

“Cell Phone Task Force Report,” available at http://www.aapor.org/Education-Resources/Reports/Cell-Phone- Task-Force-Report.aspx ...... 14

“Cell Phone Task Force Report 2008,” available at https://www.aapor.org/Education-Resources/Reports/Cell-Phone- Task-Force-Report-2008.aspx ...... 14

“Insights Association Code of Standards and Ethics for Market Research and Data Analytics,” available at https://www.insightsassociation.org/issues-policies/insightsassociation-code-standards-and-ethics-market-research-and-data- analytics-0 ...... 6

“Order Bias,” available at https://www.insightsassociation.org/issues- policies/glossary/order-bias ...... 13

INTEREST OF AMICI CURIAE AND DISCLOSURES REQUIRED BY TEX. R. APP. P. 11

Marketing research and data analytics is a multi-billion-dollar, worldwide

business, comprised of individuals and organizations working in, or on behalf of,

every sector of industry, including pollsters and government, public opinion,

academic and goods and services research, and analytics professionals. The

organizations that utilize market research and data analytics services range from large multinational corporations and small businesses to academic institutes, non- profit organizations and government agencies.

The Insights Association (the “Association”) was founded in 2017 from the merger of two organizations with long, respected histories of servicing the marketing research and analytics industry: (1) the Council of American Survey

Research Organizations (“CASRO”); and (2) Marketing Research Association

(“MRA”). The Association strives to improve research and analytics science, methods, accountability, and quality. The Association further prioritizes maintaining goodwill with the public by working to enhance respondent confidentiality, accurately reporting opinions, and respecting respondents’ privacy,

time, and right to decline.

The Association has an interest in protecting and preserving the public

image and integrity of bona fide survey, opinion and marketing research and in

educating the public about the distinction between bona fide research and push

polling, advertising, marketing, and other advocacy. The Association files this

brief to defend bona fide research activities, to assist the Court in distinguishing

between legitimate research activity and push polling, and to request that the Court

not make any ruling that could hamper future legitimate research efforts related to

legal work, both in Texas and throughout the country.

No fee was paid in connection with the preparation and filing of this brief.

Public Opinion Strategies and Survey Sampling International, LLC,1 two of the

research organizations involved in the dispute underlying this appeal, are members

of the Association but do not have a direct pecuniary interest in the outcome of this

appeal.

PROCEDURAL HISTORY

This appeal stems from a sanctions order imposed by the 72nd Judicial

District Court, which the Amarillo Court of Appeals affirmed on March 26, 2018.2

A Petition for Review was filed with the Court on May 10, 2018, and the Court requested briefing on the merits on August 31, 2018. The Court granted Petitioner a thirty-day extension to file his supporting brief on the merits, requiring it to be filed no later than October 31, 2018. Respondent’s brief on the merits is currently due November 20, 2018, and Petitioner’s reply brief is currently due December 5,

2018.

1 Survey Sampling International, LLC is now known as Research Now. 2 Brewer v. Lennox Hearth Prods., LLC, 546 S.W.3d 866 (Tex. App—Amarillo 2018, pet. filed).

INTRODUCTION

At issue in this case is a randomly-selected, scientifically valid and methodically conducted survey of public opinion conducted in connection with contentious, high-stakes litigation involving a tragic death and a matter of public safety. In all jury trials, but especially in this type of emotionally resonant, high- visibility litigation, an objective and accurate understanding of public opinion regarding the issues in the case is critical to litigants’ ability to properly evaluate their cases. To that end, mock trials, pretrial opinion polling, and message testing are an integral, and often routine, part of effective advocacy in the jury trial setting.

The trial court and court of appeals implicitly and erroneously concluded, without analysis, that the survey in this case was not a valid pretrial research study but was instead a “push poll” designed to influence and alter the opinions of participants. However, an objective review of the survey in question reveals that it was a properly conducted bona fide research study consistent with the type of valid pretrial research performed by effective advocates throughout the state. Upholding the award of sanctions in this case will chill the use of valid pretrial research and unnecessarily impair the ability of Texas litigants and their counsel to effectively prepare and present their cases to a jury. In that respect, affirming the lower courts’ decisions would be inconsistent with the inviolate right to a fair trial by

jury repeatedly referenced and relied upon by the respondents and the courts below.

Upholding the sanctions in this case will also significantly harm members of the research and polling industry in Texas and elsewhere by effectively prohibiting valid pretrial research and message testing. Such research is critical to the numerous firms and individuals who conduct mock trials, focus groups, witness training, jury consulting, media consulting, and litigation psychology. Without the

ability to conduct valid scientific research in a trial setting, it will be impossible for

these firms to provide valuable services that are both an everyday component of

modern litigation and a meaningful part of the Texas economy.

Citizens of Texas have a strong interest in preserving the ability to

adequately and accurately research and evaluate the strengths and weaknesses of their cases, and access to a fair jury trial depends on the right to do so. Similarly, the members of the Association have a strong interest in protecting their right to provide ethical, scientifically valid services to litigants in Texas. Affirming the award of sanctions in this case by endorsing the lower courts’ erroneous conclusion that a valid research study was an improper, sanctionable “push poll” would undermine the rights of Texas litigants and the members of the Association.

Accordingly, the trial court’s order should be reversed.

OVERVIEW OF THE RESEARCH AND POLLING INDUSTRY

A. What is Bona Fide Research?

Survey, opinion and marketing research is the systematic, objective

investigation and analysis of the opinions, attitudes and behavior of a statistically-

selected group of people. On behalf of their clients—including government (the

world’s largest purchaser of research), political campaigns, media, commercial and

non-profit entities—researchers design studies, and collect and analyze data, from

small but statistically-balanced samples of the public. Researchers seek to

determine the public’s opinion and behavior regarding products, services, issues,

candidates and other topics. Such information is used to develop new products,

improve services, and inform policy. Research is distinguished from commercial

activities (such as advertising, marketing and sales) and from advocacy.

In consultation with the broader research industry (long before the merger

forming the Association), MRA developed a working legal definition of bona fide survey, opinion and marketing research: “the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences and behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional or marketing efforts are involved and through which there is no attempt to influence a participant’s attitudes or behavior.” This

definition was adopted by the United States Congress in the proposed RESEARCH

FAIRNESS ACT OF 2012, H.R. 5915, 112th Congress (2012) and by the New

Hampshire state legislature in amendments passed to a New Hampshire “push poll” statute in 2014, N.H. REV. STAT. ANN. § 664:2 (2014).

Bona fide research sometimes includes message testing, which is a means of

gauging public response to a certain message. Such messages can be considered

positive, negative or plainly neutral, and polls containing negative information are

not necessarily push polls. Indeed, researchers, companies and political campaigns

often test the effectiveness of messages about competitors as well as themselves.

Bona fide research serves a legitimate purpose and is useful across many

applications. Citizens should feel confident about participating in research studies,

as well as personally secure and accurately represented when participating in

research studies. Researchers are bound by ethical standards and codes, including

the Association Code of Standards and Ethics for Market Research and Data

Analytics.3

B. What is a “Push Poll”?

“Push polling” is not polling at all; it is a form of political campaign

messaging or negative phone banking fraudulently disguised as polling. See Evan

3 See “Insights Association Code of Standards and Ethics for Market Research and Data Analytics, available at https://www.insightsassociation.org/issues-policies/insights-association- code-standards-and-ethics-market-research-and-data-analytics-0 .

Gerstmann and Matthew J. Streb, Putting an End to Push Polling: Why it Should

Be Banned and Why the First Amendment Lets Congress Ban It, 3 Election L.J. 37,

37 (2004); Jonathan S. Fox, Push Polling: The Art of Political Persuasion, 49 Fla.

L. Rev. 563, 564 (1997). While polling can be properly used to test messages,

“push polling” is not a test but rather an effort to influence those messages by

giving their communication the false appearance of polling. Gerstmann and Streb,

3 Election L.J. at 37. In the political context, polls are methodologically rigorous

public opinion surveys of generally 500 to 1,000 people intended to learn about

and measure voters’ opinions and test possible campaign messages.4 Advocacy telephone calls, on the other hand, are made to tens of thousands of people and are intended to create or change opinion. Gerstmann and Streb, 3 Election L.J. at 38.

For example, political persuasion calls are a campaign advocacy technique used to

“push” a voter away from a particular candidate or issue and toward another—they are not a legitimate, scientific poll. The Association generally refers to such “push polls” as “deceptive persuasion calls,” or “deceptive advocacy techniques,” to better fit the term to the activity. Some researchers also refer to “push polling” as

“political telemarketing.” Id. The American Association for Public Opinion

Research—a non-profit professional organization dedicated to advancing the

4 See “Push polls” - Deceptive Advocacy/Persuasion Under the Guise of Legitimate Polling, available at https://www.insightsassociation.org/issues-policies/best-practice/push-polls- deceptive-advocacypersuasion-under-guise-legitimate-polling , citing Stuart Rothenberg, “For the Thousandth Time, Don’t Call Them ‘Push Polls,’” Roll Call, March 8, 2007, available at https://www.rollcall.com/news/-17368-1.html.

science and practice of survey and opinion research—defines a push poll as “an insidious form of negative campaigning disguised as a political poll that is designed to change opinions, not measure them.” Id. In the view of the

Association, deceptive persuasion calls under the guise of bona fide polling are a

particularly unethical and deceptive activity.

The research profession has been battling against push polling for years,

seeking to educate consumers, political professionals, legislators and regulators on

the difference between bona fide research and political persuasion under the guise

of research, as well as the damage that such deceptive activities inflict on bona fide

research.5 The practice of push polling is abusive and manipulative of the public in that its practitioners gain the attention of respondents under false pretenses by taking advantage of the good will people have toward legitimate research.

Gerstmann and Streb, 3 Election L.J. at 37. In addition, push polling is detrimental

to the research community by leaving recipients of push polls with a misleading

and negative view of what research is and how it works, making them much less

likely to participate in valid research studies in the future. Id.

C. Discerning Bona Fide Research from “Push Polls”

The Association and other professional research organizations have

identified several factors useful in distinguishing a push poll from legitimate

5 See “AAPOR Statements on ‘Push’ Polls,” available at http://www.aapor.org/Standards- Ethics/Resources/AAPOR-Statements-on-Push-Polls.aspx.

research activity. Push poll calls are usually 30-60 seconds in duration, ask only a few leading or misleading questions, ask no demographic questions, and are placed to many thousands of people. Gerstmann and Streb, 3 Election L.J. at 38; Fox, 49

Fla. L. Rev. at 578-583. Conversely, legitimate research calls generally take at least a few minutes, ask carefully designed questions, collect detailed demographic information and are placed to a small representative sample of a particular segment of the public. Id. In short, push polls are designed solely to influence public

opinion by sharing information instead of collecting it and shaping opinion instead

of analyzing it.

MRA developed the following chart to assist in distinguishing between

legitimate research calls and push polls:6

Legitimate Polls/Message Testing “Push Poll” Calls Research

Generally 5 minutes or longer. Generally 1 to 2 minutes long.

Neither support nor oppose a Designed to persuade people, not to candidate/issue or information being measure opinion. tested; seek only to collect unbiased information.

Include questions regarding respondent Do not ask any personal or demographic demographics, such as age range or questions, which could be used to gender. analyze poll results.

6 See, e.g., “Push polls” - Deceptive Advocacy/Persuasion Under the Guise of Legitimate Polling, available at https://www.insightsassociation.org/issues-policies/best-practice/push-polls- deceptive-advocacypersuasion-under-guise-legitimate-polling .

Clearly identify the organization or call May mask the organization or call center making the call. center making the call, or use a phony name. Generally total between 300 and 1,500 Tend to target thousands of people, completed interviews. regardless of demographics.

THE RESEARCH STUDY IN DISPUTE IN THE INSTANT CASE IS A BONA FIDE RESEARCH STUDY AND NOT A “PUSH POLL”

The trial court concluded that several of the questions in the survey at issue in this case were “designed to influence or alter the opinion or attitude of the person being polled,” which would be consistent with a “push poll.” Brewer, 546

S.W.3d at 880. The court of appeals appears to have relied on this conclusion in

affirming the trial court’s order. Id. However, neither the trial court nor the court

of appeals conducted any analysis regarding whether the survey in question bears

any of the characteristics of a “push poll.” Based on the standards considered by

the Association, the research study in question in this case was not a push poll but

was a bona fide research study for a legitimate purpose. Accordingly, to the extent

the lower courts’ decisions were premised upon their conclusion that the study in

question was a “push poll,” the decisions were based on a faulty premise.

A. LENGTH OF THE CALLS AND THE QUESTIONS ASKED

As set forth above, push polls are generally delivered via telephone calls

lasting 30 seconds to a minute and will not include demographic questions.

Gerstmann and Streb, 3 Election L.J. at 38; Fox, 49 Fla. L. Rev. at 580. This is

because shorter calls cost less and allow more people to be contacted. Fox, 49 Fla.

L. Rev. at 580. Conversely, even the shortest bona fide research calls will generally last five minutes or longer and will include specific questions regarding the respondent’s demographics. Gerstmann and Streb, 3 Election L.J. at 38. The polls at issue in this case consisted of at least 42 questions, including specific demographic questions regarding the respondents’ age, state of residence, ownership of a home, use of natural gas, political persuasion, education level, income, gender, and ethnic background. 2Supp.CR 11-40; Brewer, 546 S.W.3d at

886-93.

Given the number of questions, the survey calls in this case would necessarily have taken more than a few minutes to complete. Indeed, the demographic questions alone would likely have taken several minutes to complete.

The length of the survey, along with the amount and the nature of the information requested, is not consistent with a push poll, which is designed to reach as many people as possible rather than to collect usable data. These factors suggest that the poll at issue in this case was a legitimate research survey and not a push poll.

B. THE NUMBER OF PEOPLE CALLED, THE RANDOM SAMPLING, AND THE INTENDED NUMBER OF RESPONDENTS

Push polls are designed to reach as many people as possible in a targeted demographic without regard to obtaining a scientific, representative sample of respondents. Gerstmann and Streb, 3 Election L.J. at 38. Here, the survey in

question was designed to obtain 300 completed interviews from a sample of approximately 20,000 random phone numbers. 2SuppCR 7; Brewer, 546 S.W.3d

at 872. Although it is not clear how many potential respondents were actually

contacted in this case, it is often difficult for researchers to reach respondents by

telephone. 2SuppCR 9. Accordingly, it is reasonable for a researcher to begin

with a pool of 20,000 potential respondents in order to ultimately obtain 300

completed responses. However, because the study would have concluded upon the

receipt of 300 completed responses, many of these potential respondents may

never have been contacted. Once again, limiting the pool of respondents in this

manner is not consistent with the intent or design of a push poll.

C. THE SURVEY TESTED POSITIVE, NEGATIVE, AND NEUTRAL MESSAGES

A bona fide research interview is designed to collect unbiased information

from respondents. To collect this information, researchers sometimes include

questions designed to test certain positive, negative, or neutral messages. Fox, 49

Fla. L. Rev. at 577-78.7 The interview script in this case included questions that

tested positive, negative and plainly neutral messages on both sides of the issue to

measure the effectiveness of those messages. 2SuppCR 11-40; Brewer, 546

7 See also Marjorie Connelly, Push Polls, Defined, New York Times, June 18, 2014, available at https://www.nytimes.com/2014/06/19/upshot/push-polls-defined.html (“[T]he fact that a poll contains questions with negative information about one or more candidates does not make it a push poll. Campaigns regularly conduct genuine surveys that test campaign messages and advertising, including negative content.”).

12 S.W.3d at 886-93. For example, the survey included questions intended to test various conflicting theories of liability for an accident, including reasons why a product manufacturer either should or should not be held liable for an accident involving its product. 2SuppCR 19-20; Brewer, 546 S.W.3d at 890-91. To reduce

the potential for bias, the order of these questions was randomized.8 By including

questions regarding both sides of the issue, these questions represent the type of

permissible “message testing” that is often included in bona fide research studies to

gauge public response to various messages. Fox, 49 Fla. L. Rev. at 577-78.9 A

push poll, in contrast, would only set forth one side of an issue and would not

communicate a message that conflicted with the purpose of the push poll.

Accordingly, this factor also suggests that the survey in question was not a push

poll.

D. IDENTIFICATION OF THE RESEARCH COMPANY CONDUCTING THE SURVEY

During a bona fide research call, the caller will clearly identify the organization or call center making the call. Fox, 49 Fla. L. Rev. at 581.

Conversely, during a push poll the caller may mask or misidentify the person or

8 “Order bias” occurs when respondents to a survey tend to favor objects because of their position in a list or sequence. Because the objects at the beginning and at the end of a list can be remembered more easily than those occurring in the middle, legitimate researchers’ usual practice is to rotate a list to eliminate this type of bias. See “Order Bias,” available at https://www.insightsassociation.org/issues-policies/glossary/order-bias . 9 See also Marjorie Connelly, Push Polls, Defined, New York Times, June 18, 2014 (“Good message testing includes pro and con statements about both your candidate and his or her opponent” because “[y]ou need to explore the strength and weaknesses on both sides.”) (internal quotations omitted).

organization behind the call. Id. In this case, the interview script began with the caller identifying himself and the research firm that was making the call.

2SuppCR 11; Brewer, 546 S.W.3d at 886. The researchers’ candor regarding the source of the calls also suggests that the survey in this case was not a push poll.

E. STANDARDS AND PRACTICES GOVERNING THE CONTACT OF CELL PHONE USERS

The Association recommends certain best practices for research calls to cell phone users.10 These practices include: (1) confirming that the respondent is not

driving a vehicle while on the phone with the researcher; and (2) manually dialing

numbers that may belong to a cell phone, rather than using a standard automated

telephone dialing system, in order to comply with the Telephone Consumer

Protection Act, 47 U.S.C. § 227. Compliance with these research industry

practices is another way to differentiate bona fide research activities from push

polling. It appears that both of those best practices were followed in research study

at issue here. 2SuppCR 9, 11; Brewer, 546 S.W.3d at 886. Accordingly, the

research study in this case gives all indications of having been bona fide research

and not a push poll.

10 See “Calling Cell Phones: The TCPA and Ethical Best Practices for Researchers,” available at https://www.insightsassociation.org/issues-policies/best-practice/calling-cell-phones-tcpa-and- ethical-best-practices-researchers; “Cell Phone Task Force Report 2008,” available at -- https://www.aapor.org/Education-Resources/Reports/Cell-Phone-Task-Force-Report-2008.aspx; “Cell Phone Task Force Report,” available at http://www.aapor.org/Education- Resources/Reports/Cell-Phone-Task-Force-Report.aspx.

AFFIRMING THE LOWER COURTS’ DECISIONS WOULD EFFECTIVELY PROHIBIT ETHICAL, VALIDLY CONDUCTED SCIENTIFIC RESEARCH

As the court of appeals acknowledged, there is “no doubt” that “pretrial surveys have been generally accepted as a legitimate method for testing actual or hypothetical arguments relating to a pending case.” Brewer, 546 S.W.3d at 876. It follows, then, that the use of a pretrial survey in this case was not, on its own, improper. Instead, the court of appeals’ decision turned on the content and conduct of the survey itself. Id. at 878 (noting that the trial court’s order “speaks only to the survey used in this particular case and the manner of its actual implementation and utilization”). Accordingly, the court of appeals necessarily concluded that the

“survey used in this particular case” was sanctionable.

The court of appeals appears to have based this conclusion on the trial court’s underlying finding that “the survey had been a conscious attempt by the surveying party to influence the jury pool.” Id. As set forth above, however, the survey was valid, scientifically conducted, random, and neutral. The survey was conducted by a reputable research firm in accordance with the Association’s objective standards and bears none of the hallmarks of a “push poll” designed or intended to influence the opinions of its participants. As a result, the lower courts’ assertions to the contrary are unfounded.

The lower courts’ misapprehension of the nature and purpose of the survey

(or perhaps their results-oriented analysis) is best illustrated by the finding that

several of the questions in the survey were “designed to influence or alter the opinion of the persons being polled” and that the survey was “designed to improperly influence the jury pool via dissemination of information without regard to its truthfulness or accuracy.” Brewer, 546 S.W.3d at 880 (internal quotations omitted). Implicit in these findings is either a misunderstanding or a disregard for the proper methodology of valid public opinion polls which, as discussed above, frequently include conflicting messages without regard for their truth in order to test public response. To rely upon the survey’s negative messages as evidence of an intent to influence public opinion, while ignoring the conflicting positive messages, is to turn logic on its head.

Put simply, if the survey in this case was sanctionable based on its content and methodology, then all valid, ethically conducted pretrial surveys will be sanctionable. The Court should not affirm the lower courts’ erroneous conclusions

regarding the survey but should instead look to the survey itself and consider that it

is a balanced, randomized, and scientifically valid study conducted in accordance with the Association’s guidelines. In reaching its decision in this case, the Court should also be mindful of the effect its ruling will have on such valid surveys conducted in jury trials and other judicial contexts in Texas and beyond.

Although the Association recognizes the primacy of the right to a fair jury trial and the important role courts play in protecting and preserving this right, the

16 Association submits that the survey in this case was fairly and properly conducted and would not interfere with a fair and impartial jury. To the contrary, the survey

would have served the purpose of objectively measuring public opinion regarding

the issues in the case in order to assist the litigants in evaluating and preparing their

case to be tried to a jury. As a result, the trial court should not have based its

decision to impose sanctions on the content or the conduct of the survey and, to the

extent it did, its decision should be reversed.

CONCLUSION

The Association and its members operate in an environment of significant public apathy with respect to research participation and diminishing research response rates. Public apathy drives up the cost of and time involved in achieving the required number and strata of participants to reach viable representative samples for most research studies, whether over the phone, in person or online.

The Association is deeply concerned that the sanctions in this case, insofar as they are based on the misunderstanding of a bona fide research study, or the mischaracterization of that research study as a “push poll” or improper attempt to influence the jury pool, could impair legitimate research efforts in the future, causing individuals to be less likely to trust and work with bona fide, ethically- bound researchers. Sanctioning parties for the use of legitimate research studies will unnecessarily impede the Association, its members, attorneys, and litigants

17 from conducting bona fide scientific studies in connection with legal proceedings in Texas and other jurisdictions. Curtailing legitimate legal research, such as the study in this case, will not serve the public interest.

PRAYER

For the reasons set forth above, the Association prays that the order of the trial court awarding sanctions against William A. Brewer III for the use of a legitimate research study be reversed.

Dated: October 30, 2018 Respectfully submitted,

/s/ Patrick J. Neligan, Jr. Patrick J. Neligan, Jr. Texas Bar No. 14866000 John D. Gaither Texas Bar No. 24055516 Neligan Foley LLP 325 N. St. Paul St., Suite 3600 Dallas, Texas 75201 Telephone: (214) 840-5300 Fax: (214) 840-5301 [email protected] [email protected]

18 CERTIFICATE OF COMPLIANCE

The foregoing document complies with the typeface requirements of Tex. R. App. P. 9.4.(e) and with the length requirements of Tex. R. App. P. 9.4(i) because it contains a total of 4,111 words, excluding the sections identified in Tex. R. App. P. 9.4(i)(1).

/s/ Patrick J. Neligan, Jr. Patrick J. Neligan, Jr.

CERTIFICATE OF SERVICE

I certify that, on October 30, 2018, the foregoing document was served on the counsel listed below via electronic filing:

Linda S. Eads George M. Kryder Southern Methodist University Daniel L. Tobey Dedman School of Law Melissa L. James Dallas, Tx 75275 Stephen S. Gilstrap [email protected] Vinson & Elkins LLP 2001 Ross Avenue, Suite 3900 Timothy T. Pridmore Dallas, TX 75201 McWhorter, Cobb & Johnson, LLP [email protected] 1722 Broadway [email protected] Lubbock, TX 79401 [email protected] [email protected] [email protected]

Attorney for William A. Brewer III R. Michael McCauley, Jr. Jack Paul Driskill McWhorter Cobb and Johnson LLP 1722 Broadway Lubbock, TX 79401 [email protected] [email protected]

Attorneys for William A. Brewer III

19 Scott Carpenter Ted B. Lyon, Jr. Rebecca Bell-Stanton Ben Taylor Carpenter & Schumacher, P.C. Marquette Wolf 2701 N. Dallas Parkway, Suite 570 Ted B. Lyon & Associates, P.C. Plano, TX 75093 18601 LBJ Freeway, Suite 525 [email protected] Mesquite, TX 75150 [email protected] [email protected] [email protected] [email protected] [email protected] Attorneys for State Farm Lloyds Insurance Company Attorneys for Becky Teel, Ken Teel, Meg Rushing and Ross Rushing Angela Han Craig H. Myers Doyen Sebesta, Ltd., LLP Timothy George 450 Gears Road, Suite 350 Fee, Smith, Sharp & Vitullo, LLP Houston, TX 77067 Three Galleria Tower [email protected] 13155 Noel Road, Suite 1000 Dallas, TX 75240 Attorneys for Thermo Dynamic [email protected] Insulation, LLC [email protected]

Attorneys for Lennox Hearth Products, LLC Mark L. Packard Bill Harriger Packard, Hood, Johnson & Bradley LLP Field, Manning, Stone, Hawthorne & 500 S. Taylor, Suite 900 Aycock, P.C. Lobby Box 223 2112 Indiana Avenue Amarillo, TX 79101 Lubbock, TX 79410 [email protected] [email protected]

Attorneys for Turner & Witt Plumbing Attorneys for Thermo Dynamic Insulation, LLC

20 Douglas C. Heuvel Heuvel Law PLLC 2701 North Dallas Parkway, Suite 570 Dallas, TX 75093 [email protected]

Attorney for Strong Custom Builders, LLC

/s/ Patrick J. Neligan, Jr. Patrick J. Neligan, Jr.