Smith County Commissioners to discuss hiring more attorneys in Volkswagen suit

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The Smith County Commissioners Court will consider hiring an additional special counsel to help bring a civil case against Volkswagen to fruition.

In November, commissioners approved a resolution authorizing lawyers to pursue a civil lawsuit against the German-based company for monetary damages related to accusations that the company installed devices to circumvent federal and state emissions regulations.

The discussion will happen at 9:30 a.m. Tuesday in the Smith County Courthouse Annex Building, 200 E. Ferguson St. The meeting is open to the public.

Smith County is seeking damages for vehicles that were sold and driven in the county because of higher-than-allowed emissions. The Potter Minton Law Firm was hired then.

Commissioners will consider contracting with a second and more specialized set of attorneys to help in their case - four in particular. They are Allen F. Gardner, E. Glenn Thames Jr., David Iglesias and Anthony F. Constant.

The attorneys have more experience with environmental litigation, but Potter Minton will remain on the case.

All the firms will be paid on a contingency basis, meaning they will get paid out of any winnings earned in the suit. If the suit does not go forward, the firms will not be paid.

The new attorneys are working for other counties on the same issue.

That brings two main benefits to Smith County, Acting County Judge Nathaniel Moran said.

The first is economies of scale: A bigger firm can take on more counties, and that gives Smith County more negotiating power and the benefit of sharing costs. For the firm, it also means consolidating workflow and using the same basic information in several cases. The counties also split the cost.

"This happens commonly in litigation," said Moran, who is an attorney. "If the case looks larger or needs additional attorneys, then you bring in a firm that has more specialization in that area."

The second benefit is in the wording of the contract, which states the firm will take on upfront costs associated with litigation, outside of the lawyer fees. Moran cited an example of the potential need for a translator for documents written in German.

According to the November resolution, the cars emit 40 times the permitted levels of nitrogen oxides, which are harmful to the public health, particularly to those with respiratory problems.

Smith County is seeking civil penalties, attorney's fees and injunctive relief for the manufacturer failing to comply with the state's environmental laws.

The state also is seeking a lawsuit against the manufacturer, and there is a question of whether the counties can file suit individually, or if the state should file it on their behalf.

The concern, from the county's standpoint, is if the state receives settlement money, it might not properly be distributed, or it might go in to the state's general fund and not be distributed to the counties at all.

"There is a hearing this month in Austin that had to do with whether or not counties would be able to move forward on their lawsuits," Moran said. "The tension is between the counties and the state, and the counties want to assert their own causes."

Smith County has not filed a lawsuit yet, but other counties have.

The state formed a special Multi-District Litigation Court, common in class action lawsuits, to decide on procedural issues - how discovery would be handled, what evidence would be admitted into court, and so on.

"There's a decision anticipated in the next month to determine if counties can move forward on their own or if the Attorney General is the one who gets to assert all the claims on behalf of the counties," Moran said.

Moran said it's too early in the process to know if Smith County will be able to go forward with a civil suit. There is no timeline set.

In other business:

Commissioners also will consider amending a lease purchase agreement for the old Gulf State Lumberyard, 302 E. Line St. and will consider making renovations to the third floor of the Courthouse Annex building, including installing a door in the court collections department, replacing flooring in the county clerk break room and purchasing kitchen equipment for that break room.

The body also will consider hiring a new Texas A&M AgriLife County Extension agent with expertise in horticulture.

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Faith Harper is an East Texas native working for her hometown newspaper. She specializes in digital content for the Tyler Morning Telegraph. In her spare time, she loves tacos, road trips and is currently learning to sail.

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