Dallas Bar Association
HEADNOTES May 2015 Volume 40 Number 5
DBA Hosts Mock Voir Dire
Focus
Focus Appellate and Criminal Law
Appellate & Criminal Law
The Review of New Trial Orders on Appeal by Thad D. Spalding and Kirk L. Pittard
Thank you to the volunteers who helped make the Law Day Committee’s Mock Voir Dire a success. Held at the George Allen Courthouse on April 10 for more than 200 Dallas ISD students, the event addressed the Magna Carta and the Rule of Law. Special thanks to Law Day Committee Chair Mandy Childs, who organized the event.
Focus
Appellate & Criminal Law
“Take Five” – A Guide to Invoking the Fifth Amendment in Civil Cases by Bill Mateja and Mike Nammar
Written by Paul Desmond in the key of E-flat minor and performed by the Dave Brubeck Quartet using a funky quintuple (5/4) time, “Take Five” is and was the biggest selling jazz single of all time. But, it is also slang for exercising one’s Fifth Amendment privilege against self-incrimination. Because many civil lawyers ask when and how to invoke the privilege, we thought we would take a stab at answering some of the not-so-obvious questions that arise. How do I know when my client can take five? When your client “reasonably believes” the disclosure “could be used in a criminal prosecution or could lead to other evidence that might be so used.” The critical word here is “reasonably.” Disclosures that would be of no use to, or could not be used by, prosecutors (e.g., statute of limitations) may not be shielded by the Fifth Amendment. Does my client actually have to be guilty of the conduct at issue? No, the privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. Can my client take five outside of a court proceeding? Yes, your client can assert it in a wide variety of proceedings such as administrative, regulatory and investigatory proceedings (such as a grand jury). I’m worried about the adverse inference which flows from my client taking five, is
there any way around this? Possibly. Courts often (but not always) stay civil cases until the parallel criminal investigation or case is concluded. Colombo v. Bd. of Educ. for the Clifton Sch. Dist. (D.N.J. 2011); S.E.C. v. Alexander (N.D. Cal. 2010). Alternatively, you might consider asking the court to issue a protective order prohibiting the use of your client’s responses in any future criminal proceedings. United States v. Kordel (1970); Martindell v. International Tel. (2d Cir. 1979). The use of a protective order is risky because some courts have held that protective orders do not preclude evidence from being produced in response to a grand jury subpoena. My client received a subpoena for records. Can she take five? Is your client an individual or a business entity? If your client is an individual, yes, generally. But, if your client is a business entity, no. The Fifth Amendment protects an individual from being compelled to selfselect or produce documents if, in doing so, the witness’s mental processes would be revealed and incrimination might result. The act of producing not only authenticates the document, but also establishes its existence, the witness’s possession and the belief that the document is responsive to a request. Even if the document is located at the business, the document might still be personal to an employee of the business thereby shielding production. Courts typically look at the totality of the circumstances continued on page 10
In 2009, for the first time in Texas history, the Texas Supreme Court allowed the review of new trial orders by mandamus. Since then, mandamus review has expanded to include merits-based review of the reasons given for the new trial. The order must be specific. No longer can new trial orders be premised solely “in the interest of justice.” See In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009). The order must provide a reasonably specific explanation of the court’s reasons for setting aside a jury verdict. Doing so “assur[es] the parties that the jury’s decision was set aside only after careful thought and for valid reasons,” not simply because the trial court substituted its judgment for that of the jury. In re United Scaffolding, Inc., 377 S.W.3d 685, 688 (Tex. 2012). How specific? The order need not include a “detailed catalog of the evidence” but must provide “a cogent and reasonably specific explanation of the reasoning that led the court to conclude that a new trial was warranted.” The stated reason must be: (1) legally appropriate; and (2) “specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reasons from the particular facts and circumstances of the case at hand.” “[M]ere recitation of a legal standard, such as a statement that a finding is against the great weight and preponderance of the evidence, will not suffice.” There must be some indication “the trial judge considered the specific facts and circumstances of the case” and should “explain how the evidence (or lack of evidence) undermines the jury’s findings.” Merits-based review. Shortly after imposing the specificity requirement, the Texas Supreme Court expanded mandamus review further, allowing for the meritsbased review of the new trial order. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758 (Tex. 2013). “Simply articulating understandable, reasonably specific, and
legally appropriate reasons is not enough; the reasons must be valid and correct.” Standard of merits-based review? Mandamus relief is considered an extraordinary remedy. Thus, a clear abuse of discretion standard applies to mandamus review, which gives some deference to the trial court’s discretion. And trial judges are generally afforded considerable discretion in ordering new trials. In fact, the Texas Supreme Court notes that “in considering … what level of review [new trial orders are] subject to, we must both afford jury verdicts appropriate regard and respect trial courts’ significant discretion in these matters.” But respect for that discretion may get lost in translation. For instance, where the new trial order is based on the factual sufficiency of the evidence, some courts apply the same standard of review that applies to a traditional appeal. To review the order under the traditional mandamus standard, one court reasons, would leave the court no practical ability to review new trial orders based on factual sufficiency. This may be true, but does it warrant ignoring the traditional mandamus standard of review altogether? After all, if a new trial order is only subject to review by mandamus, yet that review can be conducted under a traditional appellate standard, mandamus relief will cease to be the extraordinary remedy it was intended to be. Not all new trial orders are reviewable. Orders granting a new trial following a default judgment are not. Neither are new trial orders following a bench trial. This relatively new mandamus process is rapidly evolving. One court has remarked that the Texas Supreme Court has “provided little guidance” in how the review is to be conducted. Courts and practitioners will no doubt continue to wrestle with the answer to such questions. Is the mandamus “clear abuse of discretion” standard in the new trial context a thing of the past? HN Only time will tell. Thad Spalding and Kirk Pittard are partners with Kelly, Durham & Pittard, LLP. Thad can be reached at tspalding@ texasappeals.com and Kirk at kpittard@texasappeals.com.
Inside 5 How to Spot a Testimonial Statement in a Criminal Case 7 Cybercrime: Existing State and Federal Offenses 9 Suspending Enforcement of an Adverse Judgment
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
2 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
Calendar May Events FRIDAY CLINICS
MAY 8-NORTH DALLAS** Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
“Legal Issues and Litigation Concerning Horizontal Drilling and Fracking,” Jonathan Childers and Greg Curry. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.
MAY 15-BELO Noon
“When Helping Starts to Hurt: Understanding Signs of Law Firm Co-Dependency, Which Can Be as Dangerous as an Addicted Attorney in the Practice.” (Ethics 1.00)* RSVP to kzack@dallasbar.org.
FRIDAY, MAY 1
11:45 a.m. Annual Law Day Luncheon Keynote speaker: Justice Eva Guzman, Supreme Court of Texas. To purchase tickets, visit www. dallasbar.org, or contact mjohnson@dallasbar.org.
inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@ dallasbar.org.
Trial Skills Section “How Not To Lose Your Case—Tips for Pretrial and Trail Preservation of Error,” Anne Johnson, Hon. Jim Jordan and Hon. Ken Molberg. (MCLE 1.00)*
DAYL Freedom Run Committee
MONDAY, MAY 4 Noon
Tax Law Section “Federal Income Tax Update,” Prof. Bruce McGovern. (MCLE 1.00)*
TUESDAY, MAY 5 Noon
Corporate Counsel Section “Alternative Dispute Resolution in Commercial Contracts,” Jack Carnegie. (MCLE 1.00)* Tort & Insurance Practice Section “Insuring Cyber Risks & Cyber Liability,” Ernest Martin, Chris Petrie and Mariah Quiroz. (MCLE 1.00)*
SUNDAY, MAY 10
10:30 a.m. Mother’s Day Brunch at Belo. Adults: $39, Children 6-12: $13. RSVP to Jonathan Greer at (214) 220-7470 by May 6.
MONDAY, MAY 11 Noon
Morris Harrell Professionalism Committee
6:00 p.m. DAYL Board of Directors Meeting
Alternative Dispute Resolution/Collaborative Law Sections “How to Magically Make Your Mediation Practice Grow, or the Brave New World of Dispute Resolution,” Sherrie R. Abney and Lawrence R. Maxwell. (MCLE 1.00)*
Real Property Law Section “Substantive Consolidation Opinions in the Real Estate Lending Context,” Max Tucker. (MCLE 1.00)*
Employee Benefits & Executive Compensation Section “Affordable Care Act Reporting Requirements.” (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Public Forum Committee
TUESDAY, MAY 12
WEDNESDAY, MAY 6 Noon
Noon
DAYL Judiciary Committee
3:00 p.m. DVAP Small Business Clinic. For more information, contact reed-brownc@lanwt.org. 5:30 p.m. Bankruptcy & Commercial Law Section “Effective Use of Social Media to Market Your Practice,” Dan Lear and Steve Thomas. (MCLE 1.00)*
Noon
Construction Law Section “Mechanic’s Lien Law Update,” Greg Harwell and Fred Wilshusen. (MCLE 1.00)*
Family Law Section Board Meeting
Lawyer Referral Service Committee
St. Thomas More Society
Publications Committee
Christian Lawyers Fellowship
6:00 p.m. J.L. Turner Legal Association
FRIDAY, MAY 15
8:00 a.m. Child Welfare Course (MCLE 7.25, Ethics 2.00)* To register, go to www. dallasbar.org or contact ahernandez@dallasbar. org. Presented by the DBA Juvenile Justice Committee. Noon
Friday Clinic-Belo “When Helping Starts to Hurt: Understanding Signs of Law Firm Co-Dependency, Which Can Be as Dangerous as an Addicted Attorney in the Practice.” (Ethics 1.00)* RSVP to kzack@dallasbar.org.
Pro Bono Activities Committee
DAYL Lawyers Against Domestic Violence
MONDAY, MAY 18 Noon
Labor & Employment Law Section “Overview of Texas Nonsubscription With Litigation and Legislative Update,” Staci Cassidy and William J. Minick, III. (MCLE 1.00)*
Securities Section “The SEC’s Triple Play: Disclosure Requirements, Fiduciary Duties and Cybersecurity,” Rachel V. Rose. (MCLE 1.00)*
Senior Lawyers Committee
DAYL Solo & Small Firm Committee
TUESDAY, MAY 19 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
J.L. Turner Legal Association “Discovery Disputes and Practice Tips Before Associate Judges in the Civil District Courts,” Hon. Monica Purdy. (MCLE 1.00, Ethics 0.25)*
Government Law Section “Brewing Up a Business,” Michael Peticolas. (MCLE 1.00)*
Peer Assistance Committee
International Law Section “International Bankruptcy 101 (Part I),” Toby Gerber, Autumn Highsmith and Luckey McDowell. (MCLE 1.00)* Co-sponsored by the Bankruptcy & Commercial Law Section.
Business Litigation Section “Mamas, Don’t Let Your Babies Grow Up to Be Minority Shareholders in Texas Private Companies: Life for Minority Investors After Ritchie v. Rupe,” Jason Fulton and Ladd Hirsch. (MCLE 1.00)* Mergers & Acquisitions Section “In-House Counsel Roundtable: Effective Partnering Between Inside and Outside Counsel on M&A Deals,” Nathan Christensen, Kelly Frazier, Arash Mostafavipour, Jonathan Yellen and Tom Harris, Moderator. (MCLE 1.00)*
Community Involvement Committee
Entertainment Committee
DAYL Elder Law Committee
6:00 p.m. Home Project Committee
WEDNESDAY, MAY 13
Noon
Dallas Bar Foundation Board Meeting
DAYL Lawyers Promoting Diversity Committee
7:45 a.m. Dallas Area Real Estate lawyers Discussion Group 11:30 a.m. House Committee Walk Through
Energy Law Section “The Hottest Oil and Gas Claims for 2015—and How to Beat Them,” Barry Barnett. (MCLE 1.00)* Health Law Section “The False Claims Act: An Update on Key Settlements and Decisions,” Jeremy Kernoodle, Sean McKenna and Kenya Woodruff. (MCLE 1.00)*
4:45 p.m. Annual Evening Ethics Fest Early registration deadline: May 4, midnight. Early Pricing: $65 DBA members/$135 non-member. Register online at www2.dallasbar.org/dbaweb/ eventregistration/EthicsFest.aspx or contact ahernandez@dallasbar.org. (Ethics 3.00)*
Noon
Family Law Section “Advanced College Savings Concepts,” Ryan Kubasek. (MCLE 1.00)*
Bench Bar Conference Committee
FRIDAY, MAY 8
Summer Law Intern Program Committee
DAYL ACE Committee
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Noon
Friday Clinic—North Dallas** “Legal Issues and Litigation Concerning Horizontal Drilling and Fracking,” Jonathan Childers and Greg Curry. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, MAY 14 Noon
CLE Committee
Criminal Justice Committee
Mother’s Day Brunch May 10, 2015 J
At the Pavilion at the Belo Mansion
Judiciary Committee “Hear From New Judges-Learn What Works and What Doesn’t!” Judges Mary Brown, Bonnie Goldstein and Staci Williams. (MCLE 1.00)*
Media Relations Committee CLE “How to Ethically Get or Avoid Media Attention - for You and for Your Clients,” Chrysta Castañeda and Jeff Crilley. (Ethics 1.00)*
Minority Participation Committee
DAYL Animal Welfare Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
FRIDAY, MAY 22 Noon
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com. Non-Profit Law Study Group
THURSDAY, MAY 21 Noon
Appellate Law Section “OJT on the Dallas Court of Appeals: A Discussion with New Justices Brown, Schenck, Stoddart and Whitehill,” Justices Ada Brown, and David Schenck, Craig Stoddart and Bill Whitehill. (MCLE 1.00)*
Intellectual Property Law Section “Top (Ten) Tips for U.S. Counsel for Obtaining Value from European Patent and Trademark Filings: What Your European Counsel Wish You Knew,” John Lawrence. (MCLE 1.00)*
MONDAY, MAY 25
DBA Offices Closed in Observance of Memorial Day
TUESDAY, MAY 26 Noon
Computer Law Section Topic Not Yet Available
Courthouse Committee
American Immigration Lawyers Association
Probate, Trusts & Estates Law Section “Tax Law Update,” Prof. Stanley Johanson. (MCLE 1.00)*
1:00 p.m. DVAP Guardian Ad Litems Certification Course Hon. Brenda Hull Thompson, Hon. Margaret Jones-Johnson, Hon. John Peyton and Hon. Ingrid Warren. (MCLE 3.50, Ethics 1.00)* To register contact perkinsa@lanwt.org. 6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, MAY 27 Noon
Sports & Entertainment Law Section “Panel Discussion on Legal Issues Faced by NFLRelated Entities,” Gina Beltrama, Amy Pratt and Staci Good McNicholas. (MCLE 1.00)*
Insights From Corporate Counsel: From Developing Business to Going In-House Speakers: Crystal Moore, Methodist Health System; Bipasha Mukherjee, Cinemark; Rudy Rodriguez, Jr., Chuck-E-Cheese; and Stephanie Zapata Moore, Luminant, moderator. Sponsored by the DBA Minority Participation Committee
WENDESDAY, MAY 20
8:30 a.m. Immigration Law Study Group “Representing Unaccompanied Children and Families in Immigration Court and Before U.S. Immigration and Customs Enforcement,” Cosponsored with Catholic Charities, St. Thomas More Society and Human Rights Initiative. (MCLE 4.50)* $25 per person. Register at http://www. stmsdallas.org/event-1839009.
THURSDAY, MAY 7 7:00 a.m. Christian Legal Society
DAYL Equal Access to Justice Committee
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
Municipal Justice Bar Association
THURSDAY, MAY 28 Noon
Criminal Law Section “Federal PSR and Relevant Conduct,” Jason D. Hawkins. (MCLE 1.00)*
Environmental Law Section “Review and Discussion of 84th Texas Legislature 2015,” Martha K. Landwehr. (MCLE 1.00)*
DBA Community Service Fund Board Meeting
FRIDAY, MAY 29 Noon
DAYL CLE Committee
SATURDAY, MAY 30
9:30 a.m. Elm Fork Sporting Clays Course Event At Elm Fork Shooting Range, 10751 Luna Road, Dallas. Cost $150. Contact rthornton@dallasbar. org. Sponsored by the DBA Entertainment Committee.
How to Get or Avoid Media Attention: for You and for Your Clients Thursday, May 21, Noon at Belo | Ethics 1.00
oin us for a culinary tour at the beau�ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimentary champagne and mimosas. A boun�ful selec�on of fresh fruit, breakfast breads, chilled seafood sta�on, carved prime rib, omelets and freshly made pancakes and waffles, a variety of pies, cakes and sweets and the ever-popular children’s buffet. Serving hours from 10:30 a.m. to 2:30 p.m. | Adults: $39.00; Children 6-12: $13.00 Garage parking available ( from Olive Street ) . Taxes, gratuities and parking not included. Reservations Required by May 6. Credit Card to hold reservation. No-shows will be billed. Call: ( 214 ) 220-0239 or e-mail jgreer@dallasbar.org. Limited seating. Sponsored by DBA Entertainment Committee.
Jeff Crilley Chrysta Castañeda Canterbury Communications Real News PR
RSVP to jsmith@dallasbar.org. Sponsored by the Media Relations Committee.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
George R. Milner, III David Finn J. Michael Price II
4 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
Headnotes
President's Column
Competition vs. Collaboration Brad Weber
This past February I participated in the annual mid-year meeting of the National Conference of Bar Presidents. One of the plenary sessions at the conference was titled “Competition vs. Collaboration Among Bars: How to Play Well in the Sandbox.” The speakers at this program talked about local and state bar associations, and how they effectively compete at times and collaborate at other times. As an antitrust lawyer, I found the topic of “Competition vs. Collaboration” to be intriguing. I regularly deal with antitrust laws that are designed to promote competition. Our first antitrust law—the Sherman Act—was enacted in 1890 as a “comprehensive charter of economic liberty aimed at preserving free and unfettered competition.” For 125 years, the U.S. antitrust laws have had the same basic objectives: protecting the competitive process for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keeping prices down, keeping quality up and encouraging innovation. This last objective—encouraging innovation—may not be as obvious as some of the others, but vigorous competition does lead to innovation. When there is only one competitor in a market, there are few incentives for improvement. On the flip side, if there are several competitors in a market, there is little chance for success by doing what everyone else is doing. Healthy competition encourages innovation, which can distinguish one competitor from the others. This applies to bar associations just as it does to commercial businesses. When competitors collaborate—or work together— competition usually is reduced, and in some collaborations is eliminated completely. The most egregious examples of anticompetitive collaborations include cartels, where competitors agree to fix prices or output, rig bids, or divide markets by allocating customers, suppliers, territories, or lines of commerce. The antitrust laws deem these types of hard-core agreements to be per se illegal, and individuals convicted of these antitrust violations can face long prison sentences. It is clear, though, that not all competitor collaborations are anticompetitive. Competitors sometimes must collaborate in order to be competitive. Pro-competitive collaborations can include joint ventures and other business arrangements where firms pool their knowledge and resources to expand into other markets, fund expensive research & development projects and lower production costs. The Federal Trade Commission and the Department of Justice are the two federal agencies tasked with enforcing the U.S. antitrust laws. These agencies have issued joint Antitrust Guidelines for Collaborations among Competitors
to assist businesses in assessing the antitrust risks associated with different types of competitor collaborations. The Guidelines recognize that consumers often benefit from collaborations in a variety of ways. For example, a competitor collaboration may enable participants to offer goods or services that are cheaper, more desirable to consumers, or brought to market faster than would be possible absent the collaboration. The Guidelines also recognize, though, that some collaborations may limit independent decision making among the participants or may otherwise reduce the participants’ ability or incentive to compete independently. In other words, some competitor collaborations can be good, but others can be bad if they reduce competition among competitors. As I sat there at the NCBP meeting listening to the speakers talk about competition and collaboration, I started thinking about the DBA and how it competes and collaborates with other bar associations. On the one hand, the DBA has many beneficial collaborations with other bar associations in Dallas. But the DBA also competes to some extent with bar associations in other large metropolitan areas. One of the best examples of the DBA’s beneficial collaborations are the close relationships it has with its “sister” bar associations – the Dallas Association of Young Lawyers, Dallas Asian American Bar Association, Dallas Hispanic Bar Association and J.L. Turner Legal Association. For several years, the Presidents of these sister bar associations have served as voting members on the DBA’s Board of Directors. As a result of these relationships, the DBA and its “sisters” have created and co-sponsored many successful events and projects, including the Martin Luther King, Jr. Justice Award Luncheon, the Dallas Minority Attorney Program, the DBA Minority Clerkship Luncheons and the New Member Reception, just to name a few. When it comes to competition, the DBA does enjoy “rivalries” with other large local bar associations. These rivalries often result in friendly forms of competition, such as higher goals for signing up new members or raising funds for pro bono legal services. Friendly rivalries also can inspire local bar associations to develop and implement innovative new programs that are likely to receive recognition in state and national award competitions. These are just some of the benefits that naturally flow from these forms of friendly competition between bar associations. Compared to the other bar associations that were discussed at the NCBP conference, I came away feeling that the DBA collaborates more, and competes less, than many of our peers. This ratio of “competition vs. collaboration” seems appropriate to me, and I believe it has led directly to our success.
Annual Evening Ethics Fest Thursday, May 7, Belo Mansion
SIGN UP FOR THE 2015 DBA 100 CLUB! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association. What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are a member of the Dallas Bar Association. To join the 2015 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2015 DBA 100 Club membership list! What are the perks? Our 2015 DBA 100 Club members will be recognized in Headnotes, the 2016 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November. If we receive your list by May 5th, your organization will be included in the June, July and August DBA 100 Club recognition ad in Headnotes. Send in your list TODAY! Don’t Miss Out on this Great Opportunity!
Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration To register, log on to www.dallasbar.org. For more information contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org. Sponsored by the DBA Legal Ethics Committee
DAYL Trial Skills Boot Camp Saturday, June 6, 2015
9:00 a.m. – 3:30 p.m. (happy hour to follow) • George Allen Courthouse This program will be a one-day, hands-on trial skills academy providing a unique opportunity to learn from many of Dallas’s premier trial attorneys who will teach and critique young lawyers. Some of the topics and presenters include: Lisa Blue, Pete Marketos and Jason Bloom (Voir Dire) Mark Werbner and Victor Vital (Cross Examination) Hon. Martin Hoffman, Jeff Levinger, Hon. Ken Molberg, Hon. Ken Tapscott (Pretrial/Jury Charge Conference) Michael Hurst and Jeff Tillotson (Closing Arguments) For a full program schedule and/or to RSVP, contact cherieh@dayl.com.
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karina Sanchez, Monique Scott Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@ dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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Focus
D al l as Bar A ssoci ati on l Headnotes 5
Appellate & Criminal Law
How to Spot a Testimonial Statement in a Criminal Case By Melinda Lehmann
The plain language of the Sixth Amendment’s Confrontation Clause is deceptively simple: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him….” So, if my client is charged with a crime, I have a right to question witnesses that testify against him, right? Well, maybe... In order to properly evaluate a criminal case, one must understand whether a defendant will have a right to cross-examine a witness before his/her statement is admissible. Whether the State can prove a case often hinges on this determination. Confrontation Clause issues can arise in any criminal prosecution, but they are extremely common in domestic violence cases where complainants often fail to appear in court. Knowing whether the State can prove its case even without the complainant’s live testimony is essential. The first step is to determine whether a statement is testimonial. Testimonial statements are subject to the Confrontation Clause and, therefore, usually inadmissible to prove the truth of the matter asserted. However, if the statement is non-testimonial, the Confrontation Clause does not bar its admission. The second step is to determine whether the non-testimonial statement satisfies a hearsay exception.
Step One: Testimonial or Non-Testimonial?
No discussion of the Confrontation Clause would be complete without mentioning Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court
held that a testimonial statement is admissible only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. The Sixth Amendment guarantees a right to confront “witnesses.” A witness is someone who offers testimony—statements made to prove the facts of a case. Testimonial statements are not limited to statements made in court by a live witness. When hearsay is testimonial, a defendant has a right to cross-examine the declarant. In contrast, the defendant does not have a right to confront declarants who have made non-testimonial statements. Statements made to law enforcement are commonly subject to this analysis. Statements made in response to police questioning are non-testimonial when the circumstances indicate that the primary purpose of the questioning is to address an ongoing emergency. Consistent with the “primary purpose” rule, statements made on 911 calls are usually non-testimonial. Whether an ongoing emergency exists must be objectively assessed from the perspective of the parties at the time of the interrogation (did either party reasonably believe an ongoing emergency existed). Ask the following questions when analyzing whether a statement made during police questioning is testimonial: 1. Where did the questioning occur? Police questioning that happens at some place besides the police station will weigh in favor of a statement being non-testimonial. 2. Is the questioning organized? The more organized, the more likely the statements are testimonial. 3. Is the suspect at large? The suspect being at large weighs in favor of the statements being non-testimonial. 4. Was the declarant injured? Statements made to police by someone suffering from
serious injuries that have not been treated weighs in favor of the statements being nontestimonial. 5. What kind of weapon was used? A firearm poses a greater risk than a fist. 6. Is this a domestic violence case? A domestic violence suspect tends to pose an isolated threat. In contrast, an armed suspect in a bank robbery is a potential threat to the public and to police. Also relevant are the emotional state of the declarant and content of the statements made by the parties. The above are nonexhaustive considerations and remember that statements made to civilians are also subject to the Confrontation Clause.
Step Two: Hearsay Exception?
A non-testimonial statement must satisfy a hearsay exception to be admissible. Non-testimonial statements often fall under a hearsay exception. They are considered trustworthy for the same reason: they were
made for some purpose besides prosecution. Non-testimonial statements often satisfy either the excited utterance or present sense impression hearsay exceptions due to the similarities between non-testimonial statements and the predicate for these exceptions. Of course, a nontestimonial statement could satisfy other exceptions, such as business records exception, so keep an open mind.
Closing
This easy-to-use framework hopefully will prove useful in analyzing the admissibility of hearsay; but note the amount of case law addressing this subject is vast. Opinions may apply to the unique facts of your case. Additionally, familiarize yourself with forfeiture by wrongdoing as well as the courtroom procedure used once a defendant raises a Confrontation Clause HN objection to hearsay.
Melinda Lehmann practices criminal law. She can be reached at melinda@mlehmannlaw.com.
Mark Your Calendars for the following Friday Clinics! RSVP to kzack@dallasbar.org.
Friday, May 8, Noon at Two Lincoln Centre (5420 LBJ Frwy, Ste. 240) Legal Issues and Litigation Concerning Horizontal Drilling and Fracking Speakers: Jonathan Childers and Greg Curry | MCLE 1.00 ----------------------------------------------------------Friday, May 15, Noon at Belo When Helping Starts to Hurt: Understanding Law Firm Co-Dependency Ethics 1.00
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
Column Writing on Writing
How to Triage a Bad Motion by Scott P. Stolley
Your associate emails you a draft motion due today. Based on a quick review, you panic because the draft is unfit for filing. You know it will be dead on arrival. What can you do to fix the draft in the short time available? Here are 10 tips for triaging the motion. 1. Get the title right. You want the judge to know instantly what kind of motion it is. Don’t use a bulky title like “Defendants Stonehenge Corporation’s, Stonehenge LLC’s, and Stonehenge Realty Advisors, Inc.’s Motion for Summary Judgment, Response to Plaintiff’s Motion for Summary Judgment, Objections to Plaintiff’s Summary-Judgment Evidence, and Motion for Sanctions.” Instead, file a motion that does one job, and call it “Stonehenge Defendants’ Motion for Summary Judgment” and put the summary-judgment response and objections into a separate document. Finally, save the sanctions motion for another day. Alternatively, if you must file a combined document, title it so that the parts
are obvious, like this: “Stonehenge Defendants’: (1) Motion for Summary Judgment; (2) Response to Plaintiff’s Motion for Summary Judgment; (3) Objections to Plaintiff’s Summary-Judgment Evidence; and (4) Motion for Sanctions.” The judge will thus be warned that the document contains four parts. Make sure to include clear captions in the text of the motion to identify the four parts. 2. Start with the issue. Issue statements are not reserved solely for appellate briefs. So do not make the trial judge ferret out the issue in your motion. Put the buried issue in the motion up front. You can make the issue a simple and informative declaration like: “The Stonehenge Defendants request summary judgment because the Plaintiff filed this fraud suit more than four years after he had actual or constructive knowledge of the alleged fraud.” You can also phrase the issue in the form of a question. Another option: Start with a one paragraph executive summary of the motion. Give the court the question and the answer in the summary. 3. Cut the formulaic opener. Most motions still start with a formulaic opener,
6th Annual Child Welfare Conference Friday, May 15, 8:00 a.m. to 5:00 p.m. at Belo MCLE 7.50 (Ethics 3.50) For rates and registration information, log on to www.dallasbar.org. Presented by the DBA Juvenile Justice Committee
such as: “To the Honorable Court: Come Now Defendants Stonehenge Corporation, Stonehenge LLC, and Stonehenge Realty Advisors, Inc. and file this, their Motion for Summary Judgment, Response to Plaintiff’s Motion for Summary Judgment, Objections to Plaintiff’s SummaryJudgment Evidence, and Motion for Sanctions, and for grounds would respectfully show the Court as follows:” Fluffy openers like this are obstacles to reader comprehension. Delete the opener, and let your title and your issue statement tell the court what the motion is about. 4. Tighten the prose. Lawyers tend to be verbose. So look for words, or even sentences, to delete. When triaging, it is faster to delete than to add. In the limited time you have, focus on shortening. 5. Abridge the facts. Fact statements are usually laden with useless facts. Be ruthless about cutting them. Give the court only the facts it needs to know to decide your motion. For example, lawyers habitually include dates for every event and filing in the case. Delete the dates and events that the judge does not need to know. 6. Cut footnotes. Too many lawyers love footnotes. They want to show that they have explored every rabbit trail. But the goal is to persuade, not to show off. Footnotes are often distracting and divert the court from the issues. Cut every footnote that is not essential to your argument. 7. Cite fewer cases. Many lawyers, especially young lawyers, are fond of string citing cases. This is another distrac
tion. It slows down, and likely annoys, the judge. Be confident enough to cite just a few cases for your legal points. 8. Eliminate the jargon. When lawyers live with a case, the case’s particular jargon seeps into their skin. But since the jargon may confuse the judge, replace it with plain English. While you are at it, take out confusing acronyms too. Do not make the judge remember multiple acronyms. 9. Simplify the party names. For individual parties, it is better to use their actual names, rather than labels like “Plaintiff” or “Respondents.” For entity parties, use shortened names that are easy to follow. And again, avoid confusing acronyms. Also, don’t define parties who need no defining. If there is only one John Hancock in the case, there is no need to describe him as “John Hancock (‘Hancock’).” 10. Get the prayer right. If the draft motion needs a lot of work, it is likely that the prayer reflects the poor thinking that went into the motion. Make sure your prayer accurately and succinctly states the relief you are seeking. Write it the way you want the judge’s order to read. If you can triage the draft motion using these 10 steps, your time will be well spent. The motion will likely be much better. It might actually have a pulse upon arrival, with no need for heroic measures HN to save it at the hearing. Scott P. Stolley is a partner with Thompson & Knight LLP and can be reached at scott.stolley@tklaw.com.
SAVE THE DATE! LAW JAM 5
Saturday, August 22, 2015 CLIENT: Communities Foundation of Texas JOB#: CFOT-14-011 Brand Campaign
BRAD MILLER
President, Encore Multifamily & Business-Advised Fund Holder
Pro Bono Rocks at the Granada Log on to www.dbalawjam.org or contact TRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"hjsmalling@dallasbar.org for sponsorship informa�on. BLEED: n/a COLOR: CMYK Proceeds benet DVAP PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org RELEASE: 4/9/15 INSERTION: May
DVAP’s Finest
Wendy Wilkerson
IN V E S TIN G D EEPLY i n th e COM MU NIT Y Brad Miller is one of the many businesspeople fostering a community of service from the ground up through Entrepreneurs For North Texas (EFNT), a Communities Foundation of Texas program that makes it easy for small and midsized companies to do good. Each year on 9/11, EFNT hosts Freedom
Deep in the heart of giving™
Day, an inspirational day of community service. This
Pro Bono: It’s Like Billable Hours for Your Soul.
year, more than 911 volunteers from the business community put the tools of change to work by renovating transitional housing for veterans and revitalizing the VA North Texas Health Care System’s Dallas Campus. A veteran himself, Brad was proud to serve those who have served.
CFOT-14-011 Headnotes_BMiller_01mg.indd 1
Wendy Wilkerson is Senior Counsel at Texas Instruments Incorporated. Wendy’s first case with DVAP was during her tenure as an associate at the former Locke Liddell Sapp LLP. In 2001, she was beginning her second year and was encouraged to take on a pro bono divorce case. The staff at DVAP were very helpful as this was her first divorce case and she was unsure about how to proceed. It was a great experience as Wendy had an opportunity to work on developing client relations and to appear before the court. Later, she began assisting at DVAP intake clinics. For years, Wendy’s church, Friendship West Baptist Church (FWBC), was looking for a way to provide access for affordable legal help to the church congregation and the surrounding communities. Wendy was instrumental in developing a partnership with DVAP to hold a legal clinic at FWBC, beginning in 2009. She has been volunteering at the FWBC Legal Clinic for about 6 years. “It has been a wonderful partnership and has allowed me on a monthly basis to give back to the community,” Wendy said. Thank you for all you do, Wendy!
Open your fund today. Call us at 214-750-4226, email giving@cftexas.org or visit www.CFTexas.org/GivingFund.
4/9/15 11:12 AM
To volunteer or make a donation, call 214/748-1234, x2243.
May 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 7
Appellate & Criminal Law
Cybercrime: Existing State and Federal Offenses by Lisa C. Tulk
Texas and federal cybercrime statutes codify a patchwork approach to protecting against various computer-related criminal threats where “traditional” offenses fall short. State law generally applies to protect individuals and businesses from attack, while federal law primarily secures computer systems belonging to the government or financial institutions. The Texas Penal Code provisions relating to Computer Crimes, contained in Chapter 33, criminalize unauthorized access to third-party computer systems, solicitation of minors via computer network, tampering with electronic voting machines, phishing scams, and other forms of online impersonation via social media, email, text and instant messenger with the intent to harm, defraud, intimidate or threaten. The Texas Court of Criminal Appeals, however, has since invalidated Section 33.021 restricting online solicitation of minors as being an overly broad restriction on constitutionally protected free speech. Unauthorized access to a computer within the meaning of the Texas statute means knowing access to a computer, computer network or computer system without the “effective consent” of the owner. “Effective consent” is the source of developing case law. In the limited authority decided on this point, “effective consent” has included asking a co-worker to put a missing thumb drive in an office mailbox, but downloading materials by a company vice-president with authority to use the company computer systems was not “effective consent” by the company when the employee left to work for another firm.
Offense levels for Chapter 33 violations range widely. A first conviction for unauthorized access is generally a Class B misdemeanor, but repeat offenses or aggregating circumstances can elevate the offense to a felony. The punishments increase to a first-degree felony where the unauthorized access is committed with the intent to defraud or harm another, or alter, damage or delete property, and the monetary damage is caused in excess of $200,000 or the actor accesses multiple unauthorized computer systems or networks. Tampering with a voting machine is similarly a first-degree felony. Phishing and other forms of online impersonation are a third degree felony if done by web page or social networking site, or with the intent to solicit a response by emergency personnel; otherwise, an offense is a Class A misdemeanor. The federal cybercrime statutes include the CAN-SPAM Act, 18 U.S.C. §1037, which criminalizes sending spam emails through disguised sources, hijacked computer systems, falsified header information, and use of multiple email accounts obtained through illegitimate account registrations in order to send spam emails. The statute is civilly enforced by the Federal Trade Commission, and criminal sentencing ranges from one to five years’ imprisonment. A conviction under CAN-SPAM does not, however, preclude conviction for other offenses such as mail or wire fraud if conditions warrant. The federal Computer Fraud and Abuse Act, 18 U.S.C. §1030, is the centerpiece of federal cybercrime legislation. This statute creates criminal offenses for computer espionage, theft of protected information by electronic means, intru-
sion into government computer systems, fraud by hacking, offensive attacks against protected computers, trafficking in passwords or illegitimate access credentials, and extortion by threat to protected computer systems. The CFAA draws a distinction between authorized access and exceeded authorization, with exceeded authorization being treated as unauthorized access. Espionage by unauthorized access to a computer to obtain foreign national security and nuclear information, and transmitting that information to another unauthorized party, is punishable by a fine and up to 10 years in prison for a first offense. Mere unauthorized access to government computer systems is subject to a fine and up to one year of imprisonment, with longer sentences possible with repeat offenses. Unauthorized systems access to obtain information from a government or financial institution, unauthorized access to commit fraud, and attempted extortion carry penalties ranging from a fine and up
to one year of prison for obtaining information, to up to ten years imprisonment for repeat violations for all three offenses. Interestingly, obtaining information illegally permits up to five years’ imprisonment rather than one if the information was obtained for purposes of commercial advantage or personal financial gain, in furtherance of another crime or tort, or if the value of the information obtained exceeds $5,000. Offensive attacks on government and financial institution systems are punishable by a fine and anywhere from up to one year imprisonment to life imprisonment depending on factual circumstances. As the “Internet of Things” develops and data breaches remain daily news stories, the cybercrime statutes are likely to evolve further to expand beyond traditional computer systems and networks and to address as-yet unknown threats. HN It’s a brave new world. Lisa Tulk is a senior associate at Kessler Collins, P.C. She may be reached at ltulk@kesslercollins.com.
Bene�ng the Sarah T. Hughes Diversity Scholarships
8 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
White Paper on Professionalism by Justice Douglas S. Lang
The American Inns of Court Foundation has been honored over the past three years to participate in an extraordinary professionalism initiative with the American Civil Trial Bar Roundtable. Since its inception in 1996, the Roundtable has been chaired by the American Board of Trial Advocates. The Roundtable is an ecumenical association of trial bar professional associations that include both plaintiff ’s and defense lawyer groups who share their expert assessment of the state of the civil trial system and make recommendations in that regard. One of the more notable accomplishments of the Roundtable was the collaboration of its members in the preparation of a white paper respecting the preservation of the right to jury trial and professionalism. That white paper, “A White Paper Containing An Overview of the Civil Justice System and Collaborative Points Of Agreement by National Legal Associations Concerned With The Trial Practice” is dated September 8, 2000, and revised September 9, 2006. Following on the precedent of the 2006 white paper, in March 2012, the Roundtable accepted the recommendation of the American Inns of Court Foundation then AICF president, Chief Justice Donald Lemons, and then AICF secretary, Justice Douglas S. Lang, that we join together to research and create a white paper on the history of the professionalism movement in the legal profession, best practices in advancing professionalism, and recommendations for the future of the professionalism movement. Armed with this authorization, research for the White Paper was conducted by the Nelson, Mullins, Riley & Scarborough Center for Professionalism at the University of South Carolina School of Law. A cadre of law students compiled the data, under the direction of Dean Emeritus John Montgomery. Dean Montgomery was the primary scrivener. Two years later, in March 2014, the final product paper titled, “A White Paper on Increasing the Professionalism of American Lawyers” was presented and approved by the members of the Roundtable. Then, in August 2014, after deliberation by the American Bar Association House of Delegates, a resolution was passed without negative votes that applauded the white paper. The resolution said, “RESOLVED, That the American Bar Association commends the American Civil Trial Bar Roundtable for its undertaking the publication of A White Paper on Increasing the Professionalism of American Lawyers, and recommends
The American Civil Trial Bar Roundtable recognized the following AICF leadership with an appreciation plaque. (left to right) Richard T. Boyette, of Raleigh, NC, “co-facilitator” and past DRI president; Richard H. Middleton, Jr., of Savana, GA, “co-facilitator” and past president of AAJ; Justice Douglas S. Lang, Dallas, TX, AICF; and Joel W. Collins, Jr., Columbia, SC, president of ABOTA.
that bar organizations and others study the existing efforts described in the White Paper and otherwise available to enhance their own efforts to improve professionalism.” To add to the support for the White Paper, the Conference of Chief Justices passed its own resolution on January 28, 2015, that said in part, “NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices commends to its members the American Civil Trial Bar Roundtable Policy Paper on Increasing the Professionalism of American Lawyers and encourages them to review the findings and recommendations when considering ways to improve the professionalism of the bar.” The “recommendations” made in the white paper include the following: “The professionalism movement so far has concentrated on educating lawyers about the various aspects of professionalism. It needs more focus. Current professionalism education initiatives could be more effective if they have a central focus on supporting rule of law principles, the civil justice system, and the core values of the profession: honesty, integrity, civility, and service. Also, a new emphasis on lawyers educating their clients should be part of professionalism efforts. This, coupled with other efforts to better educate clients on the importance of civility, which should be acknowledged as an aspect of a lawyer’s professionalism responsibilities, could improve professionalism. Civility oaths have been adopted
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in several states. These oaths serve not only as a useful reminder of the type of conduct expected of members of a learned profession, but aid lawyers in understanding the limits of appropriate conduct. Efforts to adopt civility oaths should be encouraged in those states which have not yet adopted them. New approaches, such as those undertaken by the Florida and Utah supreme courts and the Colorado Bar to establish boards to resolve professionalism complaints informally, should be monitored for whatever lessons about improving professionalism may be ascertained from their experiences. Mentoring can take many forms and is rapidly increasing in the legal profession. It is demonstrably effective in transmitting the “culture” of a professional approach to law practice. It also is known to be one of the most effective ways in establishing new behavioral norms where education alone won’t succeed. Mentoring can be most effective in impressing on new lawyers the importance of professionalism. Its increased use in the legal profession should be strongly encouraged and supported. Supreme Court professionalism commissions have been the most active organizations in the profession in dealing with professionalism by bringing together all stakeholders. They operate in only about 25 percent of the states. Their creation in every state should be encouraged. Hard information on the frequency
of unprofessional conduct, either nationally or in individual states, is difficult to obtain and not routinely collected. Nor has the effectiveness of individual initiatives such as professionalism codes been evaluated. The only exception here is mentoring which is evaluated in most states on an ongoing basis. More comprehensive gathering of data on professionalism and the effectiveness of various initiatives should be encouraged. As a part of this process, the Civil Trial Bar Roundtable supports the development of a “professionalism directory” for each state. This directory would be a qualitative state-by-state measure of the breadth of each state’s professionalism efforts. Possibilities for inclusion are the existence of supreme court commissions, bar committees, professionalism standards, civility oaths, bar and disciplinary counsel programs, mentoring, CLE programs on professionalism, access to justice initiatives, working with law schools and data gathering. This is not an inclusive list. The Roundtable supports such an effort and is willing to participate in a meaningful way in its development. The Civil Trial Bar Roundtable, through local groups of its national organizations, encourages active involvement with as many law schools as possible. The experience of individuals in member organizations could be invaluable in assisting law schools to strengthen their professionalism programs. This is a time of declining enrollments and tight resources for law schools. They could benefit from the active participation of Roundtable organizations and their members in increasing the professionalism and skills of law students. On March 14, 2014, the Roundtable recognized the AICF work on the White Paper by presenting a plaque inscribed “In Grateful Appreciation for Your Outstanding Service and Leadership.” The AICF intends to continue to pursue the cause of professionalism with great vigor.” One year later, at the Roundtable meeting in Washington, D.C., AIFC trustee and executive committee member Justice Douglas S. Lang presented a report on the progress and support obtained of the white paper. Immediately following that report, the Roundtable recognized the leadership of the AICF with a plaque that says, “In grateful appreciation for your outstanding service and leadership.” The work of the AICF and the Roundtable continues. HN Justice Douglas Lang is a member of the Fifth District Court of Appeals and can be reached at douglas.lang@5th.txcourts.gov. This White Paper was approved by the ABA and the Conference of Chief Justices in March 2015.
May 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Appellate & Criminal Law
Suspending Enforcement of an Adverse Judgment by Ken Carroll and Sara Romine
Bad news. Judgment for the other side. But you are sure there is reversible error. So, how do you keep your opponent at bay and your client’s assets intact pending your redemption on appeal? Supersede. Where to begin? The basic supersedeas rules appear in Chapter 52 of the Civil Practice & Remedies Code and in TRAP 24 and 29. But don’t assume that is everything. Special rules found elsewhere may apply to your client or judgment. Does your client need to supersede? Can she? Before arranging for supersedeas, make sure it is necessary, and possible. TCPRC Chapter 6 lists a variety of governmental actors that need not file security to suspend enforcement of a judgment pending appeal. Under Sections 351.002 and 1152.002 of the Estates Code, executors, administrators and guardians are exempt from supersedeas bond requirements. Certain interlocutory appeals— e.g., from class certification orders— stay all proceedings in the trial court, or at least trial itself, without supersedeas security. Conversely, some orders— like suspension of a law license and many child custody orders—cannot be superseded. Finally, some clients may wish to just pay the judgment voluntarily, expressly reserving their right to recoup that payment if they win on appeal—a less complicated, but potentially risky, alternative. When should you file? If you are going to supersede, do it as soon as possible. In Texas, a judgment creditor cannot execute until 30 days after a judg-
ment is signed or a timely motion for new trial is overruled. But the judgment creditor can begin a number of efforts— post-judgment discovery, garnishment, turnover—as soon as the judgment is signed. Prompt filing will avert the disruption those actions entail. What works as security? TRAP 24.1 specifies the methods for superseding. Most common are posting a bond signed by a “sufficient surety” (the Dallas County District Clerk’s trust department maintains a list of approved sureties) and depositing cash or negotiable instruments with the clerk. But both come with disadvantages. Sureties charge a premium of around 2 percent of the bond amount, most will want to be fully collateralized, and arranging for one takes time. The trial court can approve alternate types of security, such as an irrevocable letter of credit or the surrender into escrow of your client’s spare Picasso. Often overlooked is perhaps the best option: the parties can agree to suspend enforcement based on some mutually acceptable arrangement—e.g., the judgment debtor deposits funds into a segregated account and pays the judgment creditor some portion of what a bond would have cost. The dollar amount? To suspend enforcement of a money judgment, the appellant ordinarily must provide security equal to the sum of “compensatory damages,” costs, prejudgment interest, and postjudgment interest for the estimated duration of the appeal (usually a year, subject to being increased if the appeal lingers). Attorneys’ fees need not be superseded unless they are part of the compensatory dam-
ages award (e.g., fees awarded as damages in a malpractice suit). Exemplary damages also do not count toward the supersedeas amount. When a judgment imposes joint and several liability on multiple defendants, each defendant must supersede the full amount of the judgment or all defendants must file joint security. Regardless of the judgment amount, an appellant may not be required to post security that exceeds the lesser of 50 percent of his net worth or $25 million. The judgment debtor bears the burden to prove net worth; the judgment creditor may take discovery on that issue. The amount of the judgment being appealed and the value of exempt assets (e.g., a homestead) are not included in that net worth calculation. If the trial court finds the judgment debtor is “likely to suffer substantial economic harm” if required to post the security prescribed by the conventional or even the capped calculation, the trial court “must lower” the security to an amount that will not cause such harm. What about non-money judgments? Non-money judgments, such
as permanent injunctions, also can be superseded, although the process is more fluid. Under TRAP 24.2(a)(3), a court can suspend enforcement of a non-money judgment upon deposit of security that will “adequately protect the judgment creditor against loss or damage that the appeal might cause.” Conversely, the trial court may decline to permit an injunction to be superseded if the appellee posts security adequate to protect the appellant against harm caused by the injunction during the appeal. What if the trial court gets it wrong? If either party is dissatisfied with the trial court’s ruling on most issues relating to supersedeas, that party may file a motion in the Court of Appeals, seeking review. The motion “must be heard at the earliest practical time,” and review may be based either on the facts before the trial court or on subsequent developments (for example, changes in the appellant’s net HN worth). Ken Carroll and Sara Romine are members of the Appellate Section of Carrington Coleman Sloman & Blumenthal, LLP. They can be reached at kcarroll@ccsb.com and sromine@ccsb.com, respectively.
Professionalism Tip I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law. I will be punctual. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed
20th Anniversary Commemorating 20 years of transforming the lives of adjudicated youth in Dallas County
Creative Solutions 20th Anniversary Luncheon Wednesday, June 3, 2015 | 11:30 a.m. to 1 p.m. | Belo Mansion Featuring a keynote address by Jarrett Adams, Innocence Project exonoree and Loyola Law School Student Inspiring student performances and stories of impact
Tickets start at $150, table sponsorships start at $2,500. Reserve your table sponsorship for your firm and summer clerks by Monday, May 25, by contacting torie.parsons@bigthought.org or 469-621-8964.
Honorary Chair Laura Bush Co-Chairs Giles Davidson, Irene Hosford and Ginger Sager Sponsored by M.R. & Evelyn Hudson Foundation, W.P. & Bulah Luse Foundation, TurningPoint Foundation Embrey Family Foundation - Lauren Embrey, Dr. Carol and Frank Riddick, III CREW-Dallas (Brenda Blake, Sharon Herrin, Coni Hennersdorf, Michelle Hudson, Judy Willoughby), Bev and Terry Heil, Irene Hosford, Husch Blackwell LLP, Matthews Southwest, Mr. Jerry McNabb, NavStar Commercial - Christine Teagle, Vin and Caren Prothro Foundation
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
Summertime in the City Escape the heat and enjoy top-notch CLEs and delicious lunches at Belo. With your DBA membership, you can access more than 400 CLE programs each year.
The Judiciary Committee hosted speakers James Stanton, Judge Eric Moyé and Scott Stolley.
Congratulations to Judge Martin Hoffman and the DBA Courthouse Committee, led by Chair Michele Wong Krause, for their work in helping to get the Jackson Street entrance at the George Allen Courthouse re-opened. The official ribbon cutting was March 18.
Brian McCormack, Heiko Burrow and Bradley Williams presented a CLE to the Intellectual Property Law Section.
The Tort & Insurance Practice Section presented their Texas Trial Legend recognitions at their April luncheon. Pictured are (left to right) Tom Stollenwerk, Michael Schmidt, Bob Vial, Hon. Craig Smith, Justice Deborah Hankinson and Lisa Songy.
“Take Five” in Civil Cases continued from page 1
in making that call. My client received a discovery request in a civil proceeding. Can she take five? Yes, the same logic highlighted above applies. The Fifth Amendment protects your client from being forced to self-select or produce documents if, in doing so, your client’s mental processes would be revealed and incrimination might result or whenever your client’s answer might tend to subject her to criminal responsibility. Note that a blanket assertion (i.e., refusing to answer all interrogatories even if an answer to several of the interrogatories would not implicate your client) is not proper. Can my client take five when filing an answer to a civil lawsuit? Yes, the privilege against self-incrimination protects your client from answering specific allegations in a complaint or petition if the answers would violate her rights under the privilege. But a proper invocation of the privilege does not excuse your client from the requirement to file a responsive pleading; your client must answer those allegations that can be answered and make a claim of privilege as to the rest so that the suit can move forward. Can my client waive her right to take five? Yes, if your client fails to take five in responding to questions to which she could have claimed the privilege, she will be deemed to have waived her privilege with respect to all questions on the same topic. This principle applies to testimony, discovery responses, and answers. While a waiver may be costly to your client, it is limited to the proceeding in which
the waiver was made. Can my client answer some questions but take five as to others? Yes, your client can answer questions about topics that are not incriminating without waiving her right to take five on incriminating topics. Be careful though. What you might consider to be unrelated to an incriminating topic might be different than what a judge would consider to be related. Subject matter waiver could result. Can my client ever be sanctioned for taking five in a civil, administrative, or regulatory proceeding? No, the privilege trumps everything, so no tribunal is empowered to strike pleadings, enter a default judgment, hold the defendant in contempt, or the like. Can my client retract the fact that she took five? Depends. Courts generally look to how much water is under the bridge and whether the retraction will have unduly prejudiced the other side’s ability to discover evidence and try its case. So, yes, your client can retract her assertion but it is best to do it early knowing that a trial court’s decision to allow or disallow retraction will only be reversed for abuse of discretion. My opposing party took five. May I rely solely on the adverse inference to prove my case? No, in Lefkowitz v. Cunningham, the Supreme Court declined to allow an adverse inference where the only evidence adduced was the adverse inference. You must have some evidence to prove your case. The adverse inference merely bolsters that HN evidence. Bill Mateja is a principal at Fish & Richardson P.C. and Mike Nammar is an sssociate at the firm. They can be reached at mateja@fr.com and nammar@fr.com, respectively.
May 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Appellate & Criminal Law
DWI Arrests: When Can Police Take Your Blood Against Your Will? by John Gioffredi
A person arrested for driving while intoxicated in Texas is deemed to have consented to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence of a controlled substance, drug, dangerous drug or other substance in the person’s body. This is the Texas “Implied Consent” statute, Texas Transportation Code (TRC) Sec. 724.011. The person also has a statutory option to refuse to provide any such specimen, subject to certain penalties, including a possible driver’s license suspension. The length of the driver’s license suspension is 180 days for first time offenders, and two years for some persons having another DWI arrest within the preceding five years. Persons having no DWI arrests in the previous five years are immediately eligible for a Texas occupational driver’s license, which can allow them to drive up to 12 hours per calendar day anywhere in the state of Texas. If the suspect is unconscious or otherwise incapable of refusing, the implied consent statute controls, and a blood sample may be legally drawn from the suspect’s body. For years, Texas law provided that “a breath or blood specimen may not be taken” if the person refuses to provide one upon request. TRC Sec. 724.013. The sole statutory exception was TRC Sec. 724.012, which provided that an officer shall require a specimen of the person’s breath or blood if there was an accident, and at the time of the arrest the officer reasonably believes that a person has died or will die as a direct
result of the accident. This code section is often referred to as the Texas mandatory blood draw statute. The mandatory blood draw statute has since been amended to require a mandatory breath or blood test of the suspect whenever the officer reasonably believes that as a direct result of a DWI accident, a person has died or will die; an individual other than the suspect has suffered serious bodily injury; or an individual other than the suspect has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment. The statute also requires a mandatory breath or blood test if, at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person has been previously convicted of or placed on community supervision for DWI with Child Passenger, Intoxication Assault, Intoxication Manslaughter or any two previous DWI cases. So basically, the mandatory blood statute as it is currently worded requires a breath or blood specimen on any DWI which is a felony, or any person who has previously been convicted of a felony DWI or related charges of intoxication assault or intoxication manslaughter. However, the Texas mandatory blood draw statute has been largely gutted as the result of two recent landmark cases. In April 2013 the U.S. Supreme Court held in Missouri v. McNeely (133 S.Ct. 1552) that when officers can reasonably obtain a warrant before obtaining a DWI blood sample without significantly undermining the efficacy of the search, the Constitution mandates that they
Dedication of DBA’s 24th Habitat for Humanity House
do so. On November 26, 2014, in a 5 to 4 decision, the Texas Court of Criminal Appeals followed suit in State v. Villarreal (No. PD-0306-14) holding that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory blood draw and implied consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.” So as of now, in March of 2015, for the results of a DWI blood test to be admissible, the prosecution would have the burden of showing that the
suspect consented to the blood draw, that a warrant for the blood was legally obtained, or that obtaining a warrant under the circumstances would have been unreasonably burdensome due to factors specific to that particular arrest. Circumstances that might excuse a non-consensual warrantless blood draw might include the non-availability of a magistrate to sign the search warrant or an emergency medical situation for someone injured in a DWI accident, if no other officers were available to tend HN to such matters. John Gioffredi can be reached at johngioffredi@gioffredi.com.
Guardian Ad Litems & Attorney Ad Litems Certification Course Tuesday, May 26, 1:00-4:30 p.m., Belo MCLE 3.50, Ethics1.00 Speakers: Hon. Brenda Hull Thompson, Hon. Margaret Jones-Johnson, Hon. John Peyton and Hon. Ingrid Warren All CLEs are free to those volunteering to take a DVAP case. Register online at www.dallasbar.org or contact perkinsa@lanwt.org.
SBOT Deletes CLE Exemption for Elderly Lawyers On April 10, the State Bar of Texas approved a proposal to require
elderly lawyers to take continuing legal education each year. Find out at www.texasbar.com.
Saturday, June 13, 10:00 a.m. at 2318 Wilhurt Avenue, Dallas, TX 75216 Please join us as we turn over the keys to the homeowner—the Alford Family.
Still Need to Make Your Donation? The DBA’s Home Project needs your contributions. To donate make checks payable to Dallas Area Habitat for Humanity and mail to Teddi Rivas, c/o DBA, 2101 Ross Ave., Dallas, TX 75201.
CONGRATULATES GRADY P. DICKENS AND SUSAN MILLS CIPIONE ON
BEING MADE SHAREHOLDERS OF THE FIRM.
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
LAW DAY 2014 American Democracy and the Rule of Law: Why Every Vote Matters Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “Magna Carta: Symbol of Freedom Under Law.” You can see all the entries at the Law Day Luncheon on Friday, May 1, at the Belo Mansion with keynote speaker Justice Eva Guzman, Supreme Court of Texas, where the DBA will honor our judiciary and recognize the winners of this year’s Law Day contests.
Estephany Moncada, 11th Grade First-Place Winner H. Grady Spruce High School
Alejandro Hernandez, 4th Grade First-Place Winner Obadiah Knight Elementary
Drew Shippey, Kindergarten First-Place Winner G.B. Dealey Montessori
M ay 2 0 1 5
Column
D al l as Bar A ssoci ati on l Headnotes 13
Ethics
Three Ethical Rules in a ‘Facebook Nation’ by Nicole Knox
More than 87 percent of Americans are regular Internet users; and 71 percent of online adults use Facebook, according to Pew Research. The five most used social media sites (“ESM” or “electronic social media”) are: Facebook, Twitter, Instagram, Pinterest and LinkedIn. This article outlines three rules for providing effective representation in a “Facebook Nation.”
“Facebook” the jury
One year ago, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, permitting lawyers to review juror or potential juror ESM profiles. Texas has remained silent on the issue, leaving counsel with continuing challenges to balance their duty to discover juror biases or prejudices with their oath to avoid improper juror communications. To avoid improper communications, the Committee advises passive review of juror ESM profiles while avoiding direct and indirect communication, which includes, “friending,” “following,” “liking,” “favoriting” and “pinning.” Further, counsel should use caution when researching jurors on LinkedIn because its default privacy
setting automatically notifies a user of the frequency and identity of profile visits. The Committee specifically addresses this issue by highlighting two published opinions, which render such notifications as improper communications due to potential risks of influencing juror conduct. New York City Bar Association, Formal Opinion 20122. The Committee determined these notifications are not improper because they are communications made by the ESM rather than the attorney. After creating blurred lines, the Committee advises: lawyers shall be aware of automatic notification features and privacy policies and are reminded to make any ESM search purposefully and without intent to embarrass, delay or burden the juror. Practically, litigators can avoid fear of unethical conduct while representing a client’s best interests by simply changing their LinkedIn privacy settings to “totally anonymous” before searching for juror profiles, which prevents all automatic notifications. To identify jurors who might be tainted, as time allows, litigators should review publicly posted information on juror ESM profiles. Identifying juror profiles allows counsel to monitor jurors’ posted information during trial to prevent misconduct while obtaining potentially valuable insight of juror
Jim Cowles Receives Fellows Justinian Award
In March, the Dallas Bar Foundation presented Jim E. Cowles (right), of Cowles & Thompson, P.C., with the Fellows Justinian Award. Mr. Cowles is pictured with Beverly Godbey (left), DBF Fellows Chair.
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character traits, habits or personal opinions. Concerned about juror misconduct, in 2010, Reuters monitored tweets over a three-week period for the term “jury duty.” The study concluded that people tweet about jury duty every three minutes, including tweets such as, “Guilty! He’s guilty! I can tell;” and “looking forward to a not guilty verdict regardless of evidence.” To combat juror misconduct, a federal district court judge conducted a three-year study (2011-2014) on juries and social media. Judge Amy St. Eve found jury instructions, if used early and often, are the most effective tool for deterring misconduct. The Committee has adopted a model instruction, which is found in Opinion 466.
Investigate witnesses and internet rumors
Federal and state courts have begun evaluating the value of information posted online by material witnesses. The Ninth Circuit recently upheld an ineffective assistance claim for failure to investigate a witness rumored to have read a recantation on the Internet, specifically AOL messenger. Cannedy v. Adams, 706 F. 3d 1148 (9th Cir. 2013). Defense counsel’s admitted failure to investigate the witness for her knowledge of rumors she read on AOL messenger were not excusable as strategic. In Michigan, a defendant appealed his conviction for ineffective assistance citing counsel’s failure to admit Facebook posts into evidence, rather than a failure to investigate. People v. Sawyer, No. 306271, 2012 Mich. App. LEXIS 2040 (Mich. Ct. App. Oct. 16,
2012). The appellate court denied the claim and held counsel was effective although he did not offer the Facebook posts. It distinguished that failure to admit the exhibit could have been sound trial strategy because counsel demonstrated knowledge of the posts through close questioning, which resulted in impeaching the credibility of the witness.
Carefully advise on content
While some jurisdictions have adopted rules or opinions for handling a client’s social media content, Texas remains silent on the issue, which results in reliance on traditional rules. Ethical concerns are often triggered when determining whether to advise clients to change privacy settings or content of social media. Unless social media evidence can be considered contraband, then traditionally, it is not a violation to merely possess evidence; and counsel is not obligated to provide law enforcement with ordinary evidence absent a subpoena or court order. This principle is the foundation of our justice system and its constitutional protections of the innocent. However, possession of evidence generally becomes problematic if it is otherwise unavailable to law enforcement. Under the Stored Communications Act, law enforcement has better access to a client’s social media account than defense counsel. As a result, defense counsel should be protected if he or she creates a duplicate copy of the evidence, preserves it and protects it by attaching HN attorney-client privilege.
Nicole Knox can be reached at nknox@nicoleknoxlaw.com.
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2015
Remembering Jim Klancnik by Martha Hardwick Hofmeister
I don’t pretend to know Jim Klancnik’s life history, but I mourn his passing and celebrate his life. Jim was among the very most dedicated of Bar None performers; he joined the show in its second year, in 1987, and he continued to appear in each show until his unexpected passing in March of 2015. That is 28 years of Bar None performances. Jim’s standard bio in the show program proclaimed that he was a “triple threat: can’t sing, can’t act, can’t dance.” And while Jim did struggle with the dancing, especially in the last two years, he was a prepared and knowledgeable singer and a good sport actor. The highlight of his Bar None acting career was no doubt when he appeared in the game show skit “Who Wants To Sue A Millionaire” as the potential plaintiff. His wide-eyed and transparent efforts to please, known to me and the assistant directors to be part of his personality, conveyed just the right character. Jim was always welcoming to cast newbies, offering to conduct a tour of the Greer Garson Theatre. While hopeful of being cast in important roles, Jim truly understood the balance that Bar None requires of featuring everyone who auditions and producing a show that audience members relish.
Column
He was a trooper, not a prima donna. Jim was always helpful. He created our enormous backstage list of skits and songs in running order, posted it and carried it away at the end. He was the first to arrive with his costume pieces for inspection, and they invariably had a bow tie component. He helped me at each run-through, advising who was present and who was missing. He shared his sheet music. He offered to stand in for folks when they were missing. If Jim could help, he would help. And Jim loved to watch his Bar None friends perform as much as he loved to perform. He would sit on the front row of the theater and watch whatever was being rehearsed with a huge smile. His hearty laugh was proof a bit was working. Jim proclaimed himself to be our oldest cast member, and perhaps he was. His spirit was as young as those of our baby lawyers, though, and everyone loved him. Bar None will never be the same without Jim Klancnik. I will miss him this summer and each summer to follow. Would that we all leave such a legacy of humbleness, HN humor and happiness. Martha Hardwick Hofmeister is a partner at Shackelford, Melton, McKinley & Norton, LLP and has been the Director of Bar None for 30 years. She can be reached at martha@marthasnet.com.
Jim Klancnik
In The News
FROM THE DAIS
Misty Leon, of Wilkins Finston Friedman Law Group LLP, conducted a webinar on the Employee Benefit Plan Voluntary Correction Program for Strafford Publishing and also for BNA. Felicia Finston, of the firm, spoke at the Southwest Benefits Association Plan Administrator Skills Workshop in Dallas Texas and Oklahoma
More than
City. She also spoke at the Dallas Fort Worth Chapter of ISCEBS.
on “History and Currents Aspects of the Mediation Process.”
Henry Simpson, III, of Busch Ruotolo Simpson LLP, spoke on behalf of the International Visitor Leadership Program of the United States Department of State to lawyer-guests from seven Eastern European and Mediterranean countries
Patricia Nolan, of The Law Office of Patricia A. Nolan, was a panel member for the ABA Section of Litigation Roundtable presented by the Young Advocates, Products Liability, Alternative Dispute Resolution and Securities Litigation Committees.
1,800 annotations! That’s what you’ll find in the
2015 Texas Criminal Codes & Rules. BONUS! Book purchase includes online edition with searchable text and index as well as one-click access to related material — cases, statutes and other authoritative content. You will also find: • 100+ New Cases • Court of Criminal Appeals cases of first impression interpreting the Code of Criminal Procedure, Penal Code and Rules of Evidence and Appellate Procedure • Controlled Substances Act and selected portions of the Health & Safety Code and Transportation Code • Glossary of Spanish Legal Terms for Texas Criminal Practice
Amy B. Ganci, of Ganci, LLP, spoke at the Equestrian Law Seminar for the Houston Bar Association on the topic of horse sales.
KUDOS
Jill A. Kotvis has been appointed as a member of the World Commission on Environmental Law, an organization of the International Union for Conservation of Nature.
Lisa Blue, of Baron and Blue, the Current President of The American Assoc. for Justice (Washington DC) was inducted into the National Trial Lawyers Hall of Fame. Susan Cipione and Grady Dickens, of McGuire, Craddock & Strother, have been named shareholders. Jonathan Thalheimer, also of the firm, has been named Texas Chair of the American College of Mortgage Attorneys.
ON THE MOVE
Ashley McDowell joined VernerBrumleyMcCurley Family Law as Partner. Jessica Dunne and Stephanie Erhart joined Lewis Brisbois Bisgaard & Smith LLP as Associates. Kelly Kubasta joined Ferguson, Braswell & Fraser, P.C.
Yvette Ostolaza, of Sidley Austin LLP, has been elected to the firm’s Executive Committee.
Michael Cramer launched his new firm, The Cramer Law Group, 603 White Hills Dr., Rockwall, TX 75087. (972) 682-9902.
Bridget Moreno Lopez, of Linebarger Goggan Blair & Sampson, LLP, has been appointed to the DFW International Airport Board, by the Dallas City Council.
Jonathan James joined Hance|Wickham, P.C. as Associate.
Sargon Daniel, Kara Grimes, Lloyd Lim and Jeff Tinker, of Winstead PC, have been elected new Shareholders. Byron Egan, of Jackson Walker L.L.P., received the Texas Bar Foundation’s prestigious Dan Rugeley Price Memorial Award. Steven V. Walkowiak, of Greenberg Traurig, LLP, has been elevated to Of Counsel.
Barbara M. Pelaez and Christopher B. Reed joined The Bassett Firm as Associates. The firms Gruber Hurst Johansen Hail Shank LLP and Elrod PLLC have merged to form Gruber Hurst Elrod Johansen Hail Shank LLP. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
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May 2 0 1 5
Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
May
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.”
OFFICE SPACE
Walnut Glen Tower (Walnut Hill/Central). Free Rent. Tasteful, bright, spacious offices in Class A building with views of downtown over lake with fountain. 16-story glass atrium with glass elevators and waterfall. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Park Cities/Central Expressway. Upscale law firm has Class A office space with high-end finish-out available. Located at 8150 Central Expressway in Dallas. Up to 3 partner offices, 6 associate offices, and 6 interior offices available. Access provided to 2 conference rooms, large boardroom and kitchen, as well as office amenities/equipment such as phone, Internet, copier, etc. Free surface and garage parking. Please contact Chelsea at (214) 3676000. Professional attorney offices available in law firm incubator space. Choose a private
office, a dedicated desk in a shared office or a virtual office. Located in the historic West End, the building is a converted warehouse beautifully renovated with original wood floors, lofty ceilings and great natural light. All offices have a skyline view of downtown Dallas. Amenities include conference rooms, phone with voice mail or call forwarding, high speed Internet, IT support, law office reception, on-site building security, kitchen and coffee service, fitness center, building directory listing. Month-to-month or longer term options available. Visit www.pearlstonesuites.com or call (214) 446-3943. Richardson – Spring Valley. Private office space and suites for lease in Richardson. Excellent Location off Spring Valley two blocks east of I-75. Perfect space for Attorneys/CPA’s/Title Company/Insurance Agent/Architects. Availability of Two Suites. Amenities Include: Receptionist service, Use of standard conference room, Complimentary coffee service, Full kitchen, Copier/scanner available for an added charge. Flexible lease terms. All utilities included. Free parking and 24/7 access. Additional information available please send email to: janice@ nacollawfirm.com. Downtown Dallas– Office available, located in the historic Katy Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 7481948. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing. For pictures, floorplan and greater detail, please visit us at www.MeadowsLawCenter.com or call (214) 368-7880 Ext 4413. Furnished single office with secretarial
Insights from Corporate Counsel: From Developing Business to Going In-House Wednesday, May 27, Noon at Belo
space available if needed within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00. Call (214) 520-0600.
POSITION AVAILABLE
Emmert & Parvin, LLP is seeking the addition of 2-3 attorneys with established practices in commercial litigation, family law and probate. Our compensation formula has no billable hours requirements and allows you to set your hours. Contact Chris Parvin for more information at chris@emmertparvin.com. Established commercial litigation and bankruptcy boutique looking to add one or two equity partners with portable business to grow and diversify firm. Please email DallasPartnerPosition@gmail.com for more information. Civil Trial Attorney Position: 2 years minimum experience in civil law. Other requirements: Please do not be afraid of hard work. You have to be able to laugh at yourself, but never at others. Lose the ego. Treat staff like you would treat your best client. Be willing to do things our way and don’t throw people under the bus. The Bassett Firm provides competitive salaries and exceptional benefits. Interested applicants send resume to nmenchaca@ thebassettfirm.com. Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
POSITION WANTED
Experienced Trial and Probate Attorney for Contract or of Counsel Engagements. AV rated trial lawyer, UT law grad, large
firm background, and over 30 years’ first chair trial and deposition experience available for lead counsel or co-counsel engagements in business, real estate, municipal or probate matters. Refer a single case or establish an of counsel arrangement. I maintain my own office in Preston Center with staff and insurance. Reply to Dallas Bar Association, Box 15_02, 2101 Ross Avenue, Dallas, Texas 75201. Real Estate and Finance Attorney. Over fifteen years major firm experience representing lenders, buyers and sellers of commercial real estate, including multi-state portfolios. Full or part time. Willing to maintain own insurance. Dallas area. Prefer real estate section of law firm. cpant@ verizon.net.
SERVICES
Transfer Pricing Expert. William Seeger, PhD, is an economist with 23 years of experience, IRS and Big Four, providing Economic consulting services, Transfer Pricing Documentation, International Tax Planning advice, and Dispute Resolution guidance and strategy. His Dispute Resolution experience includes IRS field audits, Appeals, Competent Authority, and Advanced Pricing Agreements. Former Partner, PwC and KPMG, and Dallas District Industry Economist. Contact Dr. Seeger at Quantecon Consulting, (972) 422-9170 or visit www.Quanteconconsulting.com. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1 (800)760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Helping trial lawyers win cases. Attorney with outstanding research and writing skills available for hourly projects. (972) 243-8444; www.trialassistance.com. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
Speakers:
Crystal Moore—Methodist Health System Bipasha Mukherjee—Cinemark Rudy Rodriguez, Jr.—Chuck-E-Cheese Stephanie Zapata Moore—Luminant, Moderator Questions? Contact ahernandez@dallasbar.org. • Sponsored by the DBA Minority Participation Committee
Elm Fork Sporting Clays Course Event Saturday, May 30, 2015 at 9:30 a.m. Cost: $150 (pay at event)• Elm Fork Shooting Range, 10751 Luna Road, Dallas Entry includes instructions, range gun use (if necessary), targets, ammunition, golf cart use, eye and ear protection, snacks and lunch. For more information, contact rthornton@dallasbar.org. • Hosted by the Entertainment Committee
Save the Dates! INTERNATIONAL BANKRUPTCY 101 May 19, Noon at Belo: U.S.–Filed International Bankruptcies Speakers: Toby Gerber, Autumn Highsmith and Luckey McDowell June 3, 5:30 p.m. at Belo: International Bankruptcies Filed in Non-U.S. Jurisdictions Speakers: David Bennett, Rob Colwell, Tim Springer and Judge Harlin Hale, moderator MCLE 1.00 each date Co-Sponsored by the International Law and Bankruptcy & Commercial Law Sections
16 H e a d n o t e s l D a l l a s B a r A s s o ciation KM_HN_2015 May_040115.pdf
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AGGRESSIVE. SMART. COMPASSIONATE. Count on hearing these words repeatedly when clients and peers describe Kelly McClure, the CEO and managing partner of McClure Law Group. Board certified in Family Law by the Texas Board of Legal Specialization, McClure leads an exceptional team of attorneys and legal professionals who practice exclusively in family law. McClure is a passionate, empathetic advocate for clients from all walks of life – from the CEO to the stay-at-home parent – who face family law concerns. McClure Law Group tenaciously advocates for their clients’ best outcome, whether in a divorce, modification or pre- or post-marital agreement. McClure’s extensive experience in tax law, asset tracing techniques, and leading-edge technology provide a distinct advantage. McClure’s wealth of experience and energy make her a force to be reckoned with through high-conflict, complex cases, whether in a collaborative law case or in litigation.
When your fortune and family matter most, McClure Law Group will fight for yours. C
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