Dallas Bar Association
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February 2021 Volume 46 Number 2
Focus | Appellate Law/Trial Skills
DBA Celebrates MLK Day
DBA Equality Committee had its first meeting on January 6 via Zoom.
DBA Establishes Committee on Equality BY PAUL STAFFORD AND KOI SPURLOCK
In 2020 the Dallas Bar Association (DBA) formed the Allied Dallas Bars Task Force on Equality, consisting of members of the DBA, the Dallas Association of Young Lawyers (DAYL), the J.L. Turner Legal Association (JLTLA), the Dallas Hispanic Bar Association (DHBA), the Dallas Asian American Bar Association (DAABA), the Dallas Women Lawyers Association (DWLA), and the Dallas LGBT Bar Association (DLGBTBA). The Equality Task Force facilitated dialogue as well as programming, addressing the topics of diversity, inclusion, equality, and belonging. In June 2020, the Equality Task Force presented a Joint Resolution Reaffirming Commitment to Social & Racial Justice, which was adopted by the DBA Board of Directors on July 12, 2020. On December 10, 2020, the Dallas Bar Association Board of Directors approved the Allied Dallas Bars Equality Task Force’s Call to Action, containing comprehensive recommendations and actionable items to promote equality. Through this approval, the Call to Action initiated the process of converting the Task Force into the Allied Bars Standing Committee on Equality. The Equality Committee, Co-Chaired by DBA PastPresident (2012) Paul K. Stafford and JLTLA Immediate Past President (2020) Koi Spurlock, is charged with assessing the status and promoting the implementation of the Call to Action’s efforts in furtherance of diversity, inclusion, equality, and belonging. In 2021, the Equality Committee will focus on increased emphasis on diverse membership, programming promoting equality, enhanced mentoring and dialogue, and promotion of a diversity events on its calendar. As stated in the Resolution, the Dallas legal community supports justice and the rule of law. In addition, the Resolution states that although the Dallas legal community has responded to recent events through informational seminars, professional presentations, collaborative dialogue, and
community actions, this same legal community must, through its words and deeds, continue to pursue and uphold its prior pronouncements supporting substantive progressive change, as well as affirm its commitment to promote diversity, equity, inclusion, and access. The year 2020 brought with it many challenges and changes. As a nation, we were unfortunately unprepared for the external threat of the COVID pandemic and the tragedy that has ensued. As we confront the external threat of COVID, we have also been forced to confront our internal misconceptions, biases, prejudices, and racism. Perhaps our collective lack of in-person contact created a greater personal connectivity—and served as a catalyst for a collective consciousness. In these times, as always, the role of lawyers and of the profession is to not only maintain their role as guardians of the rule of law, but also to embrace their obligation as agents of positive change. Lawyers took an oath and they have an obligation to promote social justice in the name of the laws that they uphold. Through the Resolution and the Call to Action, the Equality Task Force reaffirmed their collective commitment to preserve the protected right of peaceable assembly, to promote equality and social justice, and to pursue tangible progress through words and deeds towards a more diverse, equitable, and inclusive society. To all those who have assisted with the efforts of the Equality Task Force, we thank you. To those individuals, and for those wishing to become involved in this historic effort, please consider continuing to contribute your knowledge and energy for diversity, inclusion, equality, and belonging by serving on the newly formed Equality Committee in 2021. If you are interested in serving, please let Alicia Hernandez know by emailing her at ahernandez@dallasbar.org. HN Paul K. Stafford (2012 DBA President) and Koi Spurlock (JLTLA Immediate Past-President) are Co-Chairs of the 2021 Equality Committee. They can be reached at paul@staffordfirmpc.com koi.spurlock@gmail.com, respectively.
(Top) On January 18, DBA President Aaron Tobin presented the MLK, Jr. Justice Award to Judge Tonya Parker for inspiring others and reflecting the values and service portrayed by Dr. King. (Bottom) J.L. Turner Legal Association President Marissa Hatchett introduced past MLK, Jr. Award recipients. Though this year’s celebration was presented via Zoom, the program drew a large crowd. The Dallas Bar Association has celebrated Martin Luther King Jr.’s birthday annually since 1993.
Congratulations to Foley & Lardner’s MLK Jr. Oratory Competition 1st place winner Dominic Patermo, 5th grader at Harry C. Withers Elementary, for his outstanding speech on the topic of “how MLK Jr.’s teachings can help us today.”
Inside 6 DBA Board Elects Chair and Vice Chair 10 Offers of Proof to Avoid Waiving an Appeal 16 Masks Hide More Than Faces During Trial 20 How to Tell Your Story at Trial
DBA MEMBER REMINDER – RENEW TODAY! 2021 DBA DUES must be received by the end of the month to continue receiving your member benefits! Mail in your payment or go online and click on My DBA to log in and renew your Membership! Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2021
All programs are presented virtually. Check the DBA Online Calendar (www.dallasbar.org) for webinar links and the most up-to-date information.
Calendar February Events BLACK HISTORY MONTH
February is Black History Month. For articles and information on Black History Month from the ABA, go to rb.gy/kte9d0. To find out more about J.L. Turner Legal Association, go to www.jltla. org. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org.
FRIDAY CLINICS
FEBRUARY 5 Noon
“How Cannabis Industry Can Impact Your Legal Practice,” Richard Cheng. (MCLE 1.00)* “Autonomous Vehicles,” Quentin Brogdon. (MCLE 1.00)*
MONDAY, FEBRUARY 1 Noon
TUESDAY, FEBRUARY 2 Noon
Tort & Insurance Practice Section “Recovery for Covid-19 Business Losses: Latest Case Developments,” Ernest Martin. (MCLE 1.00)*
Morris Harrell Professionalism Committee
WEDNESDAY, FEBRUARY 3 Noon
Dallas County Health Update Public Forum “The Future of COVID-19 and Vaccinations in Dallas County,” Dr. John Carlo, Dr. Philip Huang, Hon. Clay Jenkins, W. Stephen Love, and Cheryl Camin Murray, moderator. Sponsored by the DBA Public Forum/Media Relations Committee, DBA Health Law Section, and the Dallas Friday Group.
Tax Law Section “Overview of the Final 1061 (Carried Interest) Regulations,” Brandon Bloom and Lee Meyercord. (MCLE 1.00)*
Solo & Small Firm Section “Everything a Solo or Small Firm Lawyer Should Know About Error Preservation,” Rusty O’Kane. (MCLE 1.00)*
Juvenile Justice Committee
Public Forum/Media Relations Committee
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
MONDAY, FEBRUARY 8 Noon
Alternative Dispute Resolution Section “Mediation and Arbitration of Disputes Involving Non-Competition Agreements and Trade Secrets,” Gary Fowler. (MCLE 1.00)*
Real Property Law Section “Disruptive Innovation in Real Estate: How Blockchain May Revolutionize the Industry and Change the Practice of Real Estate Law,” Alexander G. Blue. (MCLE 1.00)*
TUESDAY, FEBRUARY 9 Noon
Construction Law Section “Enforceability of Liquidated Provisions – Are They Really Enforceable?” Andrea Hight. (MCLE 1.00)* Judiciary Committee
FRIDAY, FEBRUARY 5
9:00 a.m. Family Law Section Bench Bar Register online at https://family-law-section. swoogo.com/BenchBar2021. (MCLE 7.00, Ethics 3.00)* Noon
Friday Clinic “How Cannabis Industry Can Impact Your Legal Practice,” Richard Cheng. (MCLE 1.00)*
Summer Law Intern Program Committee
3:30 p.m. Science & Technology Law Section “Online Hate Uncovered - From Real Life Stories to Real World Solutions,” Tanya Gersh, Randy Randolph, and moderator Rachel Bresner. (MCLE 1.00)* Co-sponsored by the Anti-Defamation League.
THURSDAY, FEBRUARY 11 Noon
Criminal Justice Committee
Publications Committee
2:00 p.m. CLE Committee
FRIDAY, FEBRUARY 12 Noon
Mergers & Acquisitions Section “Opportunistic M&A: Essential Considerations for Bargain Hunting in the Grips of COVID,” Thaddeus E. Chase, Jr., Wilson Chu, Diego E. GomezCornejo, Joanna Jung-Erh Lin. (MCLE 1.00)*
Home Project Committee
Legal Ethics Committee
1:00 p.m. SBOT Rules Vote Public Forum Presented by the State Bar of Texas. Register online at www.dallasbar.org. 6:00 p.m. JLTLA Board of Directors Email jltlapresident@gmail.com for details.
WEDNESDAY, FEBRUARY 10
Trial Skills Section “Playing for Appeal: Everything Trial Lawyers Must Know to Preserve Error,” Rusty O’Kane. (MCLE 1.00)*
MONDAY, FEBRUARY 15 Noon
Labor & Employment Law Section “Employee Handbooks Post COVID-19,” Nathan D. Pearman. (MCLE 1.00)*
TUESDAY, FEBRUARY 16 Noon
International Law Section “Digital Transformation and COVID-19. Challenges and Best Practices,” Yodi Hailemariam, Brianna Hinojosa Smith, and Mirjam Supponen. (MCLE 1.00)*
Community Involvement Committee
Peer Assistance Committee
THURSDAY, FEBRUARY 4 Noon
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
FEBRUARY 19 Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
WEDNESDAY, FEBRUARY 17
THURSDAY, FEBRUARY 18 Noon
Appellate Law Section “What’s New in 2021: Significant Amendments to the Texas Rules of Civil and Appellate Procedure,” Anne Johnson. (MCLE 1.00)* Minority Participation Committee
FRIDAY, FEBRUARY 19 Noon
Friday Clinic “Autonomous Vehicles,” Quentin Brogdon. (MCLE 1.00)*
Legal History Discussion Group “The INS on the Line: Making Immigration Law on the U.S.-Mexico Border,” Dr. S. Deborah Kang. (MCLE 1.00)*
MONDAY, FEBRUARY 22 Noon
Corporate Counsel/Science & Technology Law Sections “Exercising Appropriate Governance Over Privacy & Cyber Risks,” Scott Giordano and Jordy R. Westby. (MCLE 1.00)*
Golf Tournament Committee
TUESDAY, FEBRUARY 23 Noon
Probate, Trusts & Estates Law Section “SLATS.” (MCLE 1.00)*
WEDNESDAY, FEBRUARY 24 Noon
Entertainment, Art & Sports Law Section “Whose Copyright Is It?” Michael Heinlen. (MCLE 1.00)*
THURSDAY, FEBRUARY 25 Noon
Criminal Law Section “The Ethics of Punishment,” Kendall Castello. (Ethics 1.00)*
Noon
Energy Law Section “Bankruptcy/363 Sales,” Nick Peteres. (MCLE 1.00)*
Health Law Section “Don’t Kill the Messenger: The Cost of Retaliating Against Doctors & Nurses,” Christine Hopkins and Ashley Tremain. (MCLE 1.00)*
Intellectual Property Law Section “Doo Doo Do They Have Rights in “Baby Shark”?: Copyright Law in the Sharing Economy,” Julie Albert. (MCLE 1.l00)*
JLTLA Black History Month Program “Honoring the History of the Dallas Black Legal Community.” RSVP to jltlapresident@gmail.com
Law in the School & Community Committee
FRIDAY, FEBRUARY 26
Pro Bono Activities Committee
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
Noon Bench Bar Conference Committee
10:00 a.m. 2021 Education Symposium Improving the Lives of Children Through Advocacy. CLE, CEU, and CPE credit available. Co-sponsored by the DBA and the W.W. Caruth, Jr. Institute for Children’s Rights. (MCLE 5.00)* Questions? Contact mgarcia@dallasbar.org.
J.L. Turner Legal Association presents Honoring the History of the Dallas Black Legal Community February 25, Noon, Zoom This program will highlight the creation of J.L. Turner Legal Society and all the barriers that our founders had to break down with the desegregation of Dallas County in Tasby v. Estes. The program will also honor the current members of J.L. Turner Legal Association who are continuing to make strides in the local legal community. Make sure to brush up on the legal history of Dallas for an opportunity to win gift cards to locally owned Black businesses!
To RSVP, email jltlapresident@gmail.com
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez 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 the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2021
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
A Call to Action BY AARON TOBIN
February is Black History Month, which is a time to recognize the important role that African-Americans have played in our country’s history. As a bar association, this month is a wonderful opportunity to reflect on the vitally important role that African Americans and minority attorneys have played locally in our community and within the profession. As we reflect and honor these legendary leaders, we should be mindful and thoughtful on how our profession can move forward on the important issues of equality, diversity, inclusion, and social justice.
A History of Legendary Leaders
At our recent MLK justice award celebration the current President of the J.L. Turner Legal Association (JLTLA), Marissa Hatchett, prepared and delivered a presentation on past award recipients. The list of past recipients are all influencers who have advanced our bar association on the important issues of diversity, inclusion, and social justice, and they have done so with their deeds as much as their words. Beginning with the Honorable L.A. Bedford Jr. who worked as a private lawyer on the school desegregation cases in Dallas. He later became the first African American Judge to serve in Dallas County and was one of the co-founders of the J.L. Turner Legal Society. The Honorable Ron Kirk served as the first African American Texas Secretary of State, Mayor of Dallas and most recently as United States Trade Representative during the Obama Administration. Secretary Kirk’s good friend, the Honorable Sam Lindsay served as the Dallas City Attorney and then became the first African American appointed to serve on the federal district court in the Dallas Division of the Northern District of Texas. Rhonda Hunter is a distinguished lawyer who became the first person of color to serve as President of the Dallas Bar Association. The Honorable Carolyn Wright was the first African American woman to win a Dallas County wide election and to serve as a Chief Justice of an intermediate Texas appellate court. Then there is my friend, Kim Askew, who has been as dedicated of a bar servant as this state has ever known. A nationally respected lawyer, Kim once chaired the prestigious litigation section of the American Bar Association. Last year’s recipient Richard Stewart served as a President of the Higginbotham Inn of Court, and is a retired Captain in the U.S. Navy. And finally, my dear friend, the late Karen McCloud who is the first person to serve as President of the J.L. Turner Legal Association, the Dallas Women Lawyers Association, and the Dallas Association of Young Lawyers. She founded J.L. Turner’s Trial Academy and would have served as the 113th President of the Dallas Bar Association had cancer not tragically taken her from us last year. These are just a few of the past award recipients who have advanced our bar in a great number of ways.
There is Still Much Work to be Done
Yet, despite the effort and accomplishments of these great lawyers and so many others, the legal profession is still one of the least diverse professions in our country. The percentage of lawyers who are women, African Americans, Hispanic or Latino, Asian American, and other minority groups is significantly behind the percentage that these same groups makeup of the national population. The numbers are even more out of proportion when looking at the number of minority and women lawyers who are partners in law firms.
Public Forum: The Future of COVID-19 and Vaccinations in Dallas County Friday, February 5, Noon, via Zoom
Dr. John Carlo CEO, Prism Health North Texas, member of the Texas Medical Association COVID-19 Task Force Dr. Philip Huang Director and Health Authority for Dallas County Health and Human Services Hon. Clay Jenkins Dallas County Judge W. Stephen Love President and CEO of the Dallas-Ft. Worth Hospital Council Cheryl Camin Murray Partner, Katten Muchin Rosenman LLP, Moderator
Register at www.dallasbar.org Sponsored by the DBA Public Forum/Media Relations Committee, Health Law Section, and the Dallas Friday Group.
As a profession, we must continue to address the challenges presented by the lack of diversity in our profession to include the lack of a pipeline, the lack of mentors for women and minority attorneys, and the lack of minority attorneys serving in meaningful firm leadership roles, just to name a few. These great lawyers have touched and influenced so many lawyers that have come behind them. The only way to honor the legacy of these legal legends is to tirelessly push forward. Or, as my friend, Paul Stafford, would say, “Onward.”
A Call to Action
In the wake of the tragic death of George Floyd, the Dallas Bar Association and our sister bars passed a joint resolution reaffirming a commitment to social and racial justice. Contemporaneously, these bar organizations, in a show of unity, announced the formation of the Allied Dallas Bars Equality Task Force. The Task Force mobilized and spent the last half of 2020 studying the history of equality initiatives in our collective bar, mapping out an action plan and ultimately drafting A Call to Action, which includes a detailed list of specific initiatives, action items if you will, that will promote the advancement of a representative and diverse profession. The list of initiatives calls for, among other things: Quarterly CLE’s addressing racial and social justice issues; Advocating at the state bar for a diversity inclusion CLE requirement for its members; Developing a tool kit for clients and in-house counsel to use in hiring outside counsel who incorporate diversity best practices within their firms; and Many other specific action items aimed at advancing our profession in on these important issues. I am proud to say that the DBA Board of Directors recently adopted this Call to Action. This important document converts the task force into the Allied Bar Standing Committee on Equality. This committee, which is in short referred to as the Equality Committee, is in its inaugural run under the leadership of DBA past president Paul Stafford and the immediate past president of JLTLA, Koi Spurlock. This committee has met and started working to implement some of the action initiatives as early as this year. Finally, and consistent with the objectives in the Call to Action, the DBA will continue to offer programming to make us smarter on issues that impact social justice. To truly make progress, we all have to understand the best we can the biases that exist in each and every one of us. Our MLK justice award recipient, the Honorable Tonya Parker has become an expert on the subject of implicit bias. Her work on the Implicit Bias Project is groundbreaking on so many levels. The DBA is proud to partner with Judge Parker this year for an implicit bias training series for trial lawyers. Some of our profession’s best trial lawyers will participate in a four-part series where these lawyers will perform mock voir dire presentations focusing on the subject of implicit bias. Trial lawyers Jonathan R. Childers and Courtney Barksdale Perez will co-chair this initiative and work with Judge Parker on this important education series. The Dallas Bar Association is proud to partner with our sister bar organizations to implement the Call to Action and other important equality initiatives such as implicit bias training. If we work together, continue the conversation, and commit to taking action, then we will become the diverse and inclusive bar that we all hope to be. Onward! Aaron
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: Aaron Z. Tobin President-Elect: Krisi Kastl First Vice President: Cheryl Camin Murray Second Vice President: Bill Mateja Secretary-Treasurer: Ebony Rivon Immediate Past President: Robert L. Tobey Directors: Vicki D. Blanton (Chair), Rob Cañas, Jonathan Childers (Vice Chair), Stephanie G. Culpepper, Whitney Keltch Green (President, Dallas Association of Young Lawyers), Marissa Hatchett (President, J.L. Turner Legal Association), Stacey Cho Hernandez (President, Dallas Asian American Bar Association), Hon. Martin Hoffman, Kate Kilanowski, Jennifer King (President, Dallas Women Lawyers Association), Hon. Audrey Moorehead, Javier Perez (President, Dallas Hispanic Bar Association), Hon. Monica Purdy, Lindsey Rames, Kelly Rentzel, Bill Richmond, Sarah Rogers, Mary Scott, Amy M. Stewart, and Mary Walters Advisory Directors: Ashlei Gradney (President-Elect, J.L. Turner Legal Association), Andy Jones (PresidentElect, Dallas Association of Young Lawyers), Jonathan Koh (President-Elect, Dallas Asian American Bar Association), Elsa Manzanares (President-Elect, Dallas Hispanic Bar Association), Derek Mergele-Rust (President, Dallas LGBT Bar Association), and Marisa O’Sullivan (President-Elect, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Rob Crain, Michael K. Hurst, Mary Scott HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Beth Johnson Vice-Chairs: Elisaveta (Leiza) Dolghih and Joshua Smeltzer Members: Logan Adcock, Benjamin Agree, Dallas Andersen, Andrew Botts, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Lindsay Drennan, Alexander Farr, Dawn Fowler, Candace Groth, Ted Huffman, Neil Issar, Alexandra Jones, Krisi Kastl, Katherine Kim, Brian King, Jared Knight, John Koetter, Margaret Lyle, Majed Nachawati, Keith Pillers, David Ritter, Carl Roberts, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interviewer: Viridiana Rodriguez Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Kimberly Watson Director of Legal Education: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2021. 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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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
February 2021
DBA Board Elects Chair and Vice Chair STAFF REPORT
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Vicki Blanton Chair of the Board and Jonathan Childers Vice-Chair of the Board for 2021. Ms. Blanton, Assistant Vice President-Senior Legal Counsel for AT&T, Inc., is a graduate of SMU Dedman School of Law. Additionally, she has a Certificate of Study from Georgetown University’s Executive Development Program at the London School of Economics. She served as a Co-Chair of the 2020-2021 Equal Access to Justice (EAJ) Campaign, and helped raise more than $1 million. She has been named as a Dallas Business Journal Best Corporate Counsel, D Magazine’s
Vicki Blanton
Jonathan Childers
List of Best Lawyers, and Eclipse Magazine’s Dynamic Lawyers. Ms. Blanton is currently Board Advisor to the Minority Participation Committee
LegalLine Volunteers Needed LegalLine is seeking volunteer attorneys for our LegalLine E-Clinics on Wednesdays. Calls may be made between 4-8 p.m. from the comfort of their own homes. Participating attorneys will be emailed contact information for those who have submitted a request for a call.
www.DallasBar.org/LegalLine
Hon. Monica Purdy
and the Employee Benefits & Executive Compensation Law Section. Mr. Childers is an experienced first-chair trial lawyer at Lynn Pinker Hurst & Schwegmann. A graduate of SMU Dedman School of Law, he specializes in energy litigation, business ownership and fiduciary disputes, trade secrets, high-stakes business torts, and complex financial issues. He has been on the DBA Board of Directors since 2016 and is currently the Board Advisor to the Memorial & History Committee and the Business Litigation and Energy Law Sections. In addition to his DBA Board service, Mr. Childers was Co-Chair of the 2017-2018 EAJ Campaign, which raised $1 million dollars for access to justice. The Board also appointed Hon. Monica Purdy, of the 95th Civil District Court, to serve a judicial at-large position. A graduate of the Thurgood Marshall School of Law at Texas Southern University, Judge Purdy is Board Advisor to the Bench Bar Conference Committee and the Appellate Law Section.
Kelly Rentzel
Filling an at-large director position is Kelly Rentzel. Ms. Rentzel, a graduate of SMU Dedman School of Law, is General Counsel/Executive Vice President at Capital Bank. She is currently Board Advisor to the Peer Assistance and Senior Lawyers Committees, and the Mergers & Acquisitions Section. The 2021 board also includes: President Aaron Tobin; PresidentElect Krisi Kastl; First Vice President Cheryl Camin Murray; Second Vice President Bill Mateja; SecretaryTreasurer Ebony Rivon; Immediate Past President Robert Tobey; Directors Rob Cañas , Stephanie G. Culpepper, Whitney K. Green, Marissa Hatchett, Stacey Cho Hernandez, Hon. Martin Hoffman, Kathleen “Kate” Kilanowski, Jennifer King, Hon. Audrey Moorehead, Javier Perez, Lindsey Rames, Bill Richmond, Sarah Rogers, Mary Scott, Amy M. Stewart, and Mary Walters; ABA Delegates Rhonda Hunter and Mark Sales; and State Bar Directors: Chad Baruch, Rebekah Brooker, Rob Crain, and Michael K. Hurst. HN
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D al l as Bar A ssoci ati on l Headnotes 7
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Abby Gregory
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
Column
February 2021
Ethics
Texas Lawyers’ Ethical Obligation of Candor to the Tribunal BY RICHARD M. HUNT
Lawyers are the original spin doctors. The first thing we learn in law school is how to distinguish the cases that hurt our clients from those that help, so it is no surprise that 140 years ago Ambrose Bierce’s famous Devil’s Dictionary, defined “lawyer” as “one skilled in circumventing the law.” Nonetheless, as much as we enjoy the joke, there are limits, one of the most crucial of which is found in Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct—“Candor Toward the Tribunal.” Most of Rule 3.03 deals with facts. Subsections (a)(1), (2), (3) and (5) forbid making false statements of fact, failing to disclose facts and using false evidence. This is not as straightforward as it sounds of course—“What is truth?” asked Pontius Pilate—but most
of us have grasp of reality that allows us to distinguish lies from fiction. Rule 3.03(a)(4) is trickier. It deals with legal authorities instead of facts. It forbids knowingly failing to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. As trained spin doctors, we immediately recognize the problematic words in this rule. Knowingly arguably adopts Thomas Grey’s aphorism “where ignorance is bliss ‘tis folly to be wise.” One way to approach writing a motion or brief is to look no further than the first helpful case or other authority. Quitting while we are ahead while doing research seems like a good way to never knowingly fail to disclose contrary authorities. Unfortunately, ignorance is not a good way to win
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or avoid violating Rule 3.03(a)(4). If our opponent is even moderately good at doing research, she is likely to find the authorities we did not look for, and there is nothing more embarrassing than not being able to explain to a Court of Appeals why it should ignore a case you never found. This also raises issues of competence under Rule 1.01, since it is a matter of competence to be aware of adverse legal authority. What about authority in the controlling jurisdiction? Controlling jurisdiction can be quite narrow. According to the Texas Supreme Court our state courts of appeals are only obligated to follow their own precedents and those of the Texas Supreme Court and United States Supreme Court, even when the issue concerns federal law. In the federal system, a district court is bound only by decisions of the Supreme Court and the Court of Appeal for the circuit in which it sits; it can ignore decisions from state appellate and supreme courts as well as other district courts and other circuit courts. On issues that have not been frequently litigated, the best authority for your client may lie outside the controlling jurisdiction. Nonetheless, Rule 3.03 requires acknowledging contrary authorities only from within the controlling jurisdiction despite the fact that the best or most on point authority comes from elsewhere. The third element of Rule 3.03(a) (4) requires that the authority be
directly adverse to the client’s position. When we find a truly unfavorable case the temptation is to figure out why it is wrong, and then wait to see if our opponent will discover it before telling the court it exists. After all, if I file my brief first how can I know whether my opponent will disclose it or not? It is a clever argument, but the written judicial opinions discussing undisclosed contrary authority agree that the obligation exists whether or not you know that opposing counsel is aware of the authority. If your opponent mentions the authority first, the not disclosed by opposing counsel condition lets you off the hook from an ethics standpoint. On the other hand, if you get to file the first brief, you will have to take the risk of educating your opponent to avoid the risk of running afoul of Rule 3.03(a)(4). One of my law school professors at the University of Texas said that good lawyers win when the law is on their side, but great lawyers win when the law is against them. Whether or not you are that cynical, Rule 3.03(a)(4) describes a requirement that turns out to be practical as well as ethical. To win despite adverse law, you must find it, gain the court’s trust by acknowledging it, and then put your spinning skills to work showing why it does not matter. HN Richard M. Hunt is a Partner at Hunt Huey PLLC and can be reached at rhunt@hunthuey.com
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D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
February 2021
Appellate Law/Trial Skills
Offers of Proof to Avoid Waiving an Appeal BY BETH M. JOHNSON
When evidence is excluded from trial, a trial attorney must still get the evidence into the record to preserve the error for a future appeal of the exclusion. “The Record” is comprised of the reporter’s record (transcripts) and the clerk’s record (filed pleadings and orders). The appellate court will not consider documents attached to an appellate brief if they are not in the record. Thus, one cannot simply attach excluded evidence to an appellate brief. If an objection to proffered evidence is sustained and the trial attorney does nothing further, there will be nothing in the record to explain to the
appellate court what the excluded evidence was. The appellate court will not guess whether the excluded evidence would have been helpful, and as honest and trustworthy as the appellate attorney may be, the appellate court will not simply trust that the evidence described in the appellate brief is the same evidence that was previously offered at trial without something in the record to support the assertions. Additionally, to be entitled to appellate relief, not only must a complainant show error but also that the error was harmful—i.e., that the judgment would have been different if the evidence had not been excluded. While the reviewing court may be able to discern from the record the nature
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of the evidence and the propriety of the trial court’s ruling, without an offer of proof, the appellate court can never determine whether exclusion of the evidence was harmful. Without the ability to perform a harm analysis, the appellate court will generally assume that even if there was error, it was not harmful and, thus, will affirm the trial court’s judgment. To create a useful appellate record, a trial attorney should make a timely offer of proof every time necessary evidence is excluded. Note, however, that exclusion of evidence that is cumulative of other admitted evidence will not be considered harmful. Offers of proof must be made during the evidentiary phase of trial. In jury trials, offers of proof must be made before the charge and, obviously, outside of the presence of the jury. If the judge does not permit the offer of proof to be made concurrently with the sustained objection, the trial attorney must not forget to make the offer before the close of evidence. Offers of proof do not have a prescribed format, but the focus should be on providing the court with an understanding of what the excluded evidence was and why it was essential to the party’s claim. If the excluded evidence is a document, simply present the document to the court reporter and tender it as an offer of proof. When excluded evidence is testimony, more creativity may be required. While a summary of testimony can suffice, the summary must describe the contents of the excluded testimony and not just state the reasons why the
testimony should be heard. The summary need not reveal all the specifics of the excluded evidence, but it must clearly inform the court of the subject matter of the excluded evidence. For example, one might say, “Your honor, for the record, I would like to make an offer of proof. If Mr. Doe were permitted to testify, he would state that X, Y, and Z are true,” with X, Y, and Z being specific facts to prove an element of a claim. Alternatively, the offer of proof may be in question-and-answer form. If an attorney asks to present the offer of proof in this manner, the court should allow it. Ideally, the judge should remain in the courtroom for the presentation— providing an opportunity to reverse the ruling—but so long as the summary is made on the record, the complaint will be preserved for appeal. When preparing for trial, one should prepare an offer of proof for every witness, especially those who might be objectionable. By doing this, the trial attorney will (1) likely not forget during trial to make an offer of proof if testimony is excluded; (2) avoid fumbling if caught off-guard by a sustained objection; and (3) as a bonus, be forced to focus on the key points necessary to elicit from each witness. One of the most disappointing outcomes on appeal is having an issue waived for failure to preserve the claim. Being prepared to submit offers of proof can help avoid that unfortunate outcome. HN Beth M. Johnson, Attorney at Law may be reached at beth@bethmjohnson.com.
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12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
February 2021
Appellate Law/Trial Skills
Taking It to the Bank: Qualifying for En Banc Review BY CHAD RUBACK AND JIM WALKER
Court of appeals justices have difficult jobs. A rapidly-moving conveyor belt continuously feeds them newly-filed appeals and mandamuses, along with lengthy trial court records, complex facts, and creative legal arguments. The perpetual conveyor belt keeps justices moving quickly from case to case and affords them little time for en banc review of decisions that they or their colleagues have already made. A court of appeals may only have enough time to grant en banc review to two or three cases each year. Texas Rule of Appellate Procedure 41.2(c) provides that en banc review “should not be ordered unless (1) necessary to secure or maintain uniformity of the court’s decisions or (2) unless extraordinary circumstances require en banc consideration.” A motion seeking en banc
review should address this prohibitive requirement head-on. Acknowledge that this is a difficult standard, and succinctly explain how your case satisfies it. Start with a bang. Respect the justices’ time by getting right to the point. Instead of beginning with a detailed recitation of the factual and procedural history of the case, start with the reason that your case is deserving of en banc review. If the opinion by the three-justice panel conflicts with a prior decision of the court of appeals, describe that conflict in your very first sentence. Beginning with an explanation that the case involves a truck wreck in which Paul Plaintiff sued Don Defendant would be a terrible waste of the valuable effect of primacy. Leave the justices wanting to learn more about your case. In drafting your motion, be mindful of the fact that the justices will likely be reading it after a
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long day of studying appellate briefs, trial court records, and trial court transcripts. Picture the justices reading your motion after they’ve already worked a physically and mentally exhausting day. Draft your motion so that it will grab their attention and, after reading it, leave them thinking about the case. Do not water your motion down with extraneous details. Mark Twain once penned, “I didn’t have time to write a short letter, so I wrote a long one instead.” Spend ample time and effort editing away unnecessary verbiage. Including ancillary facts and arguments can dilute and distract from an otherwise-strong motion, and you must have a strong motion for there to be any chance of securing en banc review. Remember that en banc review is truly extraordinary. Merely arguing that the three-justice panel got the facts or the law wrong is not enough to warrant en banc review. Just like when seeking review from the Texas Supreme Court or the U.S. Supreme Court, focus on why the review should be granted, rather than ignoring this prerequisite and addressing only why the case was wrongly decided. Think about what makes your case stand out from all of the others, and makes the case warrant extraordinary treatment. Distill this down into a few sentences, and make that the opening paragraph of your motion. The rest of your motion can continue with the same focus, never straying far from the central premise that your case is truly extraordinary. While a successful motion for en banc
review must explain what the three-justice panel did wrong, keep in mind that your audience is composed of those justices’ colleagues. Even though appellate justices might sometimes disagree with each other, like most co-workers, they also become an extended family. Carefully explain why the panel’s decision was extraordinarily wrong without disparaging the panel members or in any way suggesting that they were careless, biased, result-oriented, or unintelligent when they made their error. In fact, after a shocking loss, it might even be wise to wait a few days before beginning to draft a motion for en banc review. After preparing your first draft of a motion for en banc review, pause and consider whether you should continue working on the motion or, instead, seek reconsideration by the three-justice panel or even forego further efforts in the court of appeals and begin the process of seeking review from the Texas Supreme Court. Keep in mind that the Texas Rules of Appellate Procedure do not require a motion for en banc review (or even a motion for reconsideration by the threejustice panel) as a prerequisite to seeking review from the Texas Supreme Court. Aborting an attempt at en banc review may sting, but you will maintain your credibility with the court of appeals if you only file motions for en banc review that truly warrant this extraordinary step. HN Chad Ruback has a solo appellate practice and can be reached at chad@appeal.pro. Jim Walker has a solo trial and appellate practice and can be reached at jim@jimwlaw.com.
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Focus
February 2021
Appellate Law/Trial Skills
The Dangers of Form Proposed Orders BY ALEXIS SWANZY
Texas Rule of Civil Procedure 166a is commonly invoked across all types of civil and family litigation because it not only provides a mechanism to narrow the issues in dispute, but it can be a cost-effective tool to dispose of lawsuits altogether. According to the Texas Judiciary’s Annual Statistical Report for the 2019 fiscal year, 9,052 civil cases and 112 family cases were disposed of at the District and Statutory County Court level through summary judgments. Since the drafting of motions for summary judgment and responses are almost a routine matter for every trial attorney, it comes as no surprise that a proposed order granting or denying such a motion may be stored as a simple form document that is only substantively changed in rare circumstances. But reliance on such a form can end up in a reversal on appeal when untimely responses are involved. To be considered timely and within the trial court’s record on appeal, responses, and supporting affidavits to
a pending motion for summary judgment, must be filed no later than seven days prior to the day of the summary judgment hearing. Only with leave of court and notice to opposing counsel can a written response and any supporting affidavits be considered timely if filed within six days prior to the summary judgment hearing. Consequently, a party’s late-filed response and evidence are not automatically part of the summary judgment record unless there is an affirmative indication that the trial court permitted—and considered—the late filing. Historically, an affirmative indication may arise from a separate order stating what was and was not considered by the court, a recital in the summary judgment, or even an oral ruling contained in the reporter’s record of the summary judgment hearing. However, whether or not a generic order that simply granted the motion for summary judgment was such an affirmative indication had not been resolved at the state’s highest court until this past March. In B.C. v. Steak N Shake Operations,
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Inc., 598 S.W.3d 256 (Tex. 2020), the Texas Supreme Court, reversing the Dallas Court of Appeals’ decision, held that a generic or form order that stated “[a]fter considering the pleadings, evidence, and arguments of counsel, the Court finds that the motion should be granted” was an affirmative indication that the untimely motion was considered at the trial court level. The plaintiff had filed her summary judgment response and evidence the day after the deadline but did not move for a continuance of the summary judgment hearing or otherwise seek leave from the trial court to file her response late. The record also did not contain a hearing transcript or ruling on the movant’s objection to the untimely response. Thus, based on the trial court’s recital that it considered the “evidence and arguments of counsel,” the Supreme Court held that the trial court did indicate that it considered the untimely filed response, and so the Dallas Court of Appeals should have considered the response and evidence attached. While a case of first impression for the Court, this analysis follows its prior rulings considering late-filed amended pleadings in advance of a summary judgment hearing when the trial court’s order (1) states that all pleadings were considered and (2) does not indicate that an amended pleading was
not considered. Further, intermediate appellate courts like the San Antonio Court of Appeals and the Beaumont Court of Appeals have previously found an affirmative indication when the order reads “all other evidence on file.” The Texas Supreme Court’s opinion resolves this recurring issue and gives guidance to trial attorneys on preserving a summary judgment victory. The Dallas Court of Appeals has also applied this affirmative indication reasoning to other motions, including motions to transfer venue. For best practices, keep a written record of the briefing and evidence that the trial court considered in ruling on a motion for summary judgment. Additionally, when drafting proposed orders with late-filed responses, movants should explicitly state the briefing and evidence the court did—and did not—consider when making its decision, in order to avoid any impression of an affirmative indication. Generic recitations that the trial court considered “evidence” or “arguments of counsel,” without more, should be carefully reviewed before submitting to the trial court. Otherwise, one may lose the presumption that the trial court did not consider an untimely response or evidence. HN Alexis Swanzy is an attorney at Kessler Collins, P.C. She can be reached at aswanzy@kesslercollins.com.
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evidence Texas Trial Procedure and evidence addresses The common issues ThaT arise ThroughouT The various Phases of Trial including wiTh hearings, jury selecTion, oPening sTaTemenTs, direcT and cross examinaTions, closing
argumenTs,
deliberaTions,
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judgmenT moTions. sPecial rules governing bench Trials, exPediTed Trials and jusTice courT Trials are also covered.
About the Authors
Jim Wren has more than 30 years of trial experience and has joined Baylor Law School’s full-time teaching faculty. He is board certified in Civil Trial Law and in Personal Injury Trial Law (by the Texas Board of Legal Specialization), and in Civil Trial Advocacy and Civil Pretrial Practice (by the National Board of Trial Advocacy).
Jim Wren
Jeremy Counseller
Jeremy Counseller is a Professor of Law at Baylor University School of Law, where he teaches Texas and federal procedure and evidence. He previously served as a law clerk to the Honorable Reynaldo G. Garza of the United States Court of Appeals for the Fifth Circuit and as an associate in the trial section of Bracewell & Patterson, LLP (now Bracewell & Giuliani, LLP).
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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
Focus
February 2021
Appellate Law/Trial Skills
Masks Hide More Than Faces During Trial BY BRITTA STANTON AND CLINT TOWNSON
Hopefully, someday soon, attorneys, judges, and jurors will again find themselves in a courthouse together. Everybody benefits when jurors are unhindered in their ability to judge the credibility of the parties. While we collectively and fervently hope for this, it is highly unlikely the next year will see many jury trials without social distancing and masks. Which raises the issue: how will ‘masking’ affect the jury’s view of the parties, lawyers, and witnesses? First, masks disrupt how we judge credibility. Empirical studies show that emotional expressions are the most important factor in evaluating a witness’s credibility. In judging a person’s character, we all take cues from the
myriad expressions of the face, including twitches, smirks, smiles, and frowns. Many of these are hidden by masks. Furthermore, we all know jurors covertly pay a lot of attention to parties and counsel when they are not “on stage.” So, even if masking is alleviated by using a plexiglass witness stand, there is a lot that will continue to be missed. Studies show wearing a mask may harm trustworthiness ratings, as the mere act of concealing expressions can be attributed as deceitful. While many argue this (or any) negative effect would be felt equally by all sides, we can all think of cases where a party’s story is largely verbal and based on his credibility. In these cases, the burden of masking has an unequal effect. Second, communication is harder behind a mask. From the obvious issue
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of difficulty with diction, muffled words, the lack of lip-reading cues, and volume, masks also obscure nonverbal cues. Finally, masks affect bonding. Jurors often socially bond with witnesses through mirroring their expressions, but if they cannot see witnesses’ faces, they have less to mirror and synchrony is diminished. In order to keep trials up and running in courtrooms, masks are a necessity; however, we do have some practical tips to lessen their potential negative impact: 1. When possible, clear face shields should be employed during voir dire. This is usually only feasible for the speakers. If you are the lawyer asking questions, ask the judge for permission to use a face shield while asking questions from a safe distance. It helps your communication, as well as bonding (more on that later). Make sure you explain to the panel that you were given permission to use the shield during questioning, so they do not interpret it as a lack of care or a sense that you’re “above” the rules. If venire members are given both masks and shields, ask the judge if they may be permitted to remove their masks while they answer questions so you can understand them better and get a better view of their faces. 2. Use large hand gestures while speaking. Also, ask your panel to show (not just say) their responses, such as “raise your hand, if” or “hold up one finger for X and two fingers for Y.” Even, “stand up if...” or “point to...” can be helpful. Be creative. Do not let the panel disengage behind their
Britta Stanton is a JD trial consultant and Clint Townson is a PhD jury consultant at IMS | The Focal Point in Dallas, Texas. They can be reached at brittas@thefocalpoint. com or clintt@thefocalpoint.com, respectively.
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Isreal Miller is Of Counsel with Gray Reed & McGraw LLP. How did you first get involved in pro bono? I first got involved in pro bono work when I was a law student at Texas Tech. I did initial intake application interviews at legal clinics for Legal Aid of NorthWest Texas at St. John’s United Methodist Church in Lubbock. Describe your most compelling pro bono case. The most compelling pro bono case I handled was one in which I prepared an estate plan for a young grandmother who had custody of her grandson. She was HIV positive and wanted to make sure she provided for her grandson when she died. Her daughter, the boy’s mother, struggled with drug addiction and had abandoned him. The grandmother wanted to make sure that he not only would be cared for but that he would receive and understand the meaning of some prize family heirlooms. She lived on government benefits and yet every time we met, she insisted on buying me a cup of coffee at Starbucks.
masks, expressionless. 3. Communicate with your team, but do not whisper. If at all possible, use electronic communication when you are in front of the jury. Whispering in front of the jury is clunky at best. 4. Microphones are very helpful— unless it makes you sound like part Vader. If you are offered a mic, you will likely want to accept it, but test it first. 5. Be ready for bench trials. Your judge has hopefully found a system that works to safely conduct bench trials. If she hasn’t (yet), raise the issue. All of this leads to the elephant in the room: Should you agree to a virtual trial? Only you and your clients can answer that question. We believe virtual proceedings present their own downsides. Jurors pay less attention, are easily distracted, and bond less than in masked live proceedings. One major advantage of online trials, however, is that all parties have the ability to closely examine others’ facial expressions to evaluate credibility. Consider your case and how important cues and credibility will be to its success. If you believe witness or party credibility is at the crux of the matter, you might opt for a virtual trial. Of course, credibility is an important factor in any trial, but if you decide your case can be won in an in-person trial, keep in mind our tips for how to bypass drawbacks presented by masks and distance. Good luck. HN
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2021
Appellate Law/Trial Skills
Family Law Appeals Distinguished MICHELLE MAY O’NEIL
Although family law appeals are handled as civil appeals under the civil rules, family law appeals differ in several ways that can be traps (pun intended) for the unwary.
Finder of Fact
Because the family code limits the issues a jury may decide, most family cases are tried to the judge. Even in jury trials, certain issues can only be tried to the judge. So, family law cases are either completely tried to the judge or through a hybrid jury/judge determination with hybrid application of the appellate standards.
Post-Judgment Issues
While the general findings-of-fact deadlines for civil cases apply, certain family lawspecific requests for findings must be timely made or they will be waived. If either child support or the possession schedule deviates from the statutory guidelines, then a special request must be made for findings regarding the deviations. When appealing the marital property division from a divorce, to
show that the division awarded is not “just and right,” an appellant must have findings relating to the valuation of each asset. Absent a timely, specific request for those valuations, the right to those findings is waived, limiting appellate remedies. Another difference between family law and general civil matters involves motions for new trial. After a bench trial, a motion for new trial is not required to preserve error; whereas after a jury trial, a motion for new trial is required to preserve sufficiencyof-the-evidence complaints for appeal. In family law, with hybrid jury/judge determinations, a practitioner must closely examine where the error lies to determine if a motion for new trial is necessary to preserve error. If the jury erred, then a motion for new trial is required to preserve a sufficiency of the evidence complaint. If the judge erred, then the family law standards apply.
Appellate Remedies
Often, family law appellate remedies differ from the remedies available in general civil cases. For example, an interlocutory appeal is only available to challenge a family court order when a receiver is appointed
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to take control of certain assets in a divorce proceeding. No other circumstances allow for use of an interlocutory appeal in a family law matter. A notice of interlocutory appeal is due 20 days after the entry of the receivership order, and expedited deadlines apply. Importantly, the failure to challenge a receivership order within 20 days after the order is signed waives any future right to such challenge. An interlocutory appeal filed within 20 days of the entry of the order is the exclusive remedy. Family law temporary orders, temporary restraining orders, and temporary injunctions are not subject to interlocutory appeal. Thus, the appropriate remedy from these orders is a petition for writ of mandamus. Additionally, review of an order to transfer venue must be made by mandamus. Several matters of venue in family law proceedings are mandatory and will therefore rise to the level of a clear abuse of discretion for mandamus relief if not followed. Enforcement orders, and specifically those finding contempt of court for violation of a prior court order, provide an interesting approach to appellate relief. If the contemnor is jailed, then the only avenue for relief from the contempt order is through a petition for writ of habeas corpus. Under certain circumstances, even a probated sentence could rise to a sufficient restraint of liberty to require a habeas proceeding. Conversely, some portions of an enforcement order may be challenged through mandamus proceeding if there is insufficient restraint of liberty to warrant habeas relief. Further, certain issues arising from an enforcement proceeding, like granting a cumulative child support arrearage judgment or awarding attorney’s fees to the peti-
tioning party, may require a direct appeal. Likewise, challenging a protective order can present a difficult scenario. If the protective order is granted under the same cause number and during the pendency of a divorce proceeding, then direct appeal is not available until the underlying divorce matter is concluded. Until the divorce is final, the protective order remains interlocutory and could be subject to retrial in the final divorce trial. However, an interlocutory protective order may be subject to challenge by mandamus. On the other hand, if the protective order is filed as a stand-alone cause of action with a unique cause number, then the final protective order judgment is appealable by direct appeal of the judgment.
Standards of Review
Yet another area where family law appeals differ from those in the general civil arena involve the applicable standard of review. If the case is tried exclusively to the judge, the abuse of discretion standard will apply to most decisions made by the judge. The family law abuse-of-discretion standard subsumes the general civil sufficiency of the evidence standards. Thus, sufficiency of the evidence is not an independent ground for review. Instead, applying an abuse-of-discretion analysis, the appellate court in a family law matter must determine, first, whether the trial court had sufficient evidence upon which to exercise its discretion (sufficiency review) and second, whether the trial court erred in applying its discretion. HN
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D al l as Bar A ssoci ati on l Headnotes 19
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2021
Appellate Law/Trial Skills
How to Tell Your Story at Trial BY SARA HOLLAN CHELETTE AND JOHN S. ADAMS
To effectively present a story, trial lawyers should think like movie makers and use the facts like a film script. That means trial lawyers must assume many roles. Like a director, they must oversee the development and assembly of the story. They must think like a screenwriter and plan dialogue, shaping the sequence of events so the story unfolds in an understandable and interesting way. And they must also serve as a production designer, crafting the visual progression of a story through trial graphics and ensuring continuity. Through these various roles, the trial lawyer elevates a script or storyboard into a compelling narrative.
To begin, through careful pre-trial planning, the trial must start with an impactful opening scene. The scene should let the jury know why they are sitting in that box and what they will be asked to decide. It must be done in a way that piques each juror’s interest. Many dramatic movies, for example, start with the discovery of a murder victim. Immediately, the audience knows what the issue is, and they will look for clues as the story unfolds. In the context of a commercial dispute, the “murder victim” may be a business that was destroyed by a competitor, and the opening scene may be dramatized by an image of a shuttered building with unkempt landscaping and an empty parking lot. In some cases, it may require more creativity to identify and dramatize the “murder victim,” but it is an
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important element to grab the jury’s attention—and if the lawyer cannot identify a dramatic harm, the jury certainly will not. Once the audience is hooked with the opening scene, it is important to emphasize why they are there and what they will be asked. This is accomplished by showing them the rule that applies to the situation. In a murder mystery, the rule is implicit and obvious. But in most litigation, it is less clear. Therefore, a clear statement of the applicable rule is essential to frame the story so the jury is attuned to look for the right clues. For example, the image of a shuttered business may be followed by admonitions like, “don’t lie” (fraud), “don’t steal” (trade secrets), or “don’t break promises” (contracts), at which point, the jury knows exactly what to look for as the facts of the case unfold. Next, a key part of telling the story is character development. Characters that audiences care about have rich backgrounds. Those backgrounds go beyond their education history and the names of their kids. In telling the story of the destroyed business, the founder should explain her passion for her company and why she founded it. She should explain a “day in the life” at the time the company was getting off the ground, what types of hours she worked, and why she was driven. She should explain the joy she felt when the company signed its first large contract and how she celebrated. A rich character background that jurors can identify with is far more valuable than a one or two-dimensional character developed solely to try to bolster credibility or evoke sympathy. A well-developed character permeates the story so that when the jury hears about the conduct at issue
in a pivotal moment, the character’s background is brought forward to that moment, and the jury associates the conduct with the character. That way, the story’s climax—the conduct ultimately at issue at trial—is not merely an event on a timeline. The climax results from tension and conflict between characters and from important choices they faced. For instance, when counsel describes a misrepresentation in a fraud case, the jury should feel the rising tension between the parties that leads to the pivotal moment when the defendant faces the moral choice of whether or not to tell the truth. The setting is another important element to a compelling story at trial. Even if the events are not complex, juries are better able to understand and remember events if they can picture where they occurred. Typically, this is best accomplished through a curated set of pictures. The images not only provide context, but also quickly present vivid details, which greatly enhance the credibility of a presentation. For example, while discussing misrepresentations made during a meeting in the context of a fraud case, it may be helpful to show the conference room where the meeting occurred, making the meeting real for the jury and lending credibility to the lawyer’s presentation. In sum, compelling trial stories require more than a sequential presentation of events. Like movie makers, trial lawyers must take a series of events and bring those to life through rich characters and vivid settings. In turn, that compelling and believable story is what persuades the jury. HN Sara Hollan Chelette and John S. Adams are commercial trial lawyers at Lynn Pinker Hurst & Schwegmann and may be reached at schelette@lynnllp.com and jadams@lynnllp.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 21
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2021
Snap Removal Considerations BY JACE R. YARBROUGH
Many attorneys are familiar with the two limits to diversity removal: 1) no defendant can reside in the forum state, and 2) all defendants must consent to removal. That is generally true, but there is a narrow exception. If the plaintiff is not a forum citizen, any defendant can remove the case all by himself, if he does so before any forum defendant is served. This “snap removal” is available even if all defendants reside in the forum and only the plaintiff resides elsewhere. Snap removal by a resident defendant runs counter to the notion that diversity removal is intended to protect a nonresident defendant from getting “hometowned” by a resident plaintiff.
The Narrow Exception to the Forum Defendant Rule
By federal statute, a defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). But there is an exception to § 1441(a): the forum defendant rule, which prevents removal in diversity cases “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum] State.” 28 U.S.C. § 1441(b)(2).
In a typical case involving the forum defendant rule, an out-of-state plaintiff sues a defendant in the defendant’s home state. After being served in compliance with state law, the defendant attempts to remove to federal court where the federal court grants plaintiff’s motion to remand, citing 28 U.S.C. § 1441(b)(2). But by snap removing, any defendant—even a forum defendant—may remove to federal court, if the defendant acts quickly.
How to Snap Remove
In order to snap remove, a defendant must 1) file notice of removal with the federal court, 2) formally file a copy of that notice with the state court in which the action was brought, and 3) give written notice to all adverse parties, all before any forum defendant is formally served. 28 U.S.C. § 1446(d). Filing the notice of removal only in federal court is likely not sufficient to prevent remand.
Snap Removal by Jurisdiction
In the Fifth Circuit, snap removal—at least by non-forum defendants—is proper. Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., 955 F.3d 482 (5th Cir. 2020). Texas Brine, a Texas LLC, sued in Louisiana state court, alleging that
the American Arbitration Association (“AAA,” a New York corporation) and two arbitrators (both Louisiana residents) committed fraud in connection with arbitration proceedings. Id. AAA was served with the state-court action and immediately removed before the in-state arbitrators were served. All defendants answered and moved to dismiss; Texas Brine moved to remand. The district court denied Texas Brine’s motion, dismissing the claims with prejudice. The Fifth Circuit affirmed, holding that until a home-state defendant has been served, the forum defendant rule is inapplicable. Id. at 486. But the Fifth Circuit did not decide the question of snap removal by forum defendants. Expressing what might be considered reservations about such removal, the Court stated: “[o]f some importance, the removing party is not a forum defendant. Diversity jurisdiction and removal exist to protect out-of-state defendants from in-state prejudices.” Id. at 488. Not long after Texas Brine, the Northern and Southern Districts of Texas approved snap removal, even by forum defendants. See Latex Construction v. Nexus Gas Transmission, No. CV 4:201788, 2020 WL 3962247 (S.D. Tex. July 13, 2020); Serafini v. Sw. Airlines Co., No. 3:20-CV-00712-X, 2020 WL 5370472, at *1 (N.D. Tex. Sept. 8, 2020). Along with the Fifth Circuit, the Second and Third Circuits are the only
federal appeals courts to have addressed snap removal. Both courts held that snap removal by forum defendants is proper. See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019); Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d Cir. 2018).
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Considerations
Defendants who act quickly, after a suit is filed but before any forum defendant is properly served, may be able to remove to federal court. Defendants should remember that the forum defendant rule raises procedural—not jurisdictional—questions; issues of removal are irrelevant where the federal district courts lack jurisdiction. Plaintiffs seeking to avoid removal should think carefully about which defendants to join, as sophisticated entities likely have docket watchers and could be ready to remove as soon as a petition is filed. Plaintiffs should also consider the effect of Texas Rule of Civil Procedure 99(a), which requires Plaintiffs to obtain service of the court-issued citation. If the defendant(s) is prepared, the time between the filing of a petition and issuance of the case citation by the clerk could determine the forum in which the suit proceeds. HN
Jace R. Yarbrough is an Associate at Baker Botts L.L.P. He may be reached at jace.yarbrough@bakerbotts.com.
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Frank E. Stevenson II, of Locke Lord LLP, delivered the keynote address and Chief Justice Robert Burns, of the Texas
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Ian Fullington, of Peckar & Abramson, P.C., has been promoted to Senior Associate. Samuel Acker and Scott Schardt, of Bradley Arant Boult Cummings LLP, have been elevated to Partner. Andrew Stubblefield, of the firm, has been elevated to Counsel. Stephen Angelette, of Polsinelli, has been elected to Shareholder. Robert G. Graham, John D. Koetter, and Lizabeth M. Vice, of Slater Matsil, LLP, have been promoted to Partner.
ON THE MOVE
Phillip Aurentz and Aimee Fagan joined Sidley Austin LLP as Partners. Aaron Gottlieb and Michael Rose joined Munck Wilson Mandala, LLP, as Principal Attorney and senior counsel, respectively. Carolyn Raines joined the firm as Partner. Jason Kathman and Gerrit Pronske joined the Plano office of Spencer Fane LLP. Chad Henson and Megan Clontz also joined the Plano office as Of Counsel. John Lynch joined Clouse Brown PLLC. Joshua Smeltzer joined Gray Reed & McGraw LLP as Counsel. Megan Decadi joined GoransonBain Ausley PLLC as Associate. Danielle Canfield joined Bell Nunnally as Associate. Alexis Yelvington joined Skierski Jain PLLC as Associate. Timothy J. Craddock has joined Cole Schotz P.C. as a Member. 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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D al l as Bar A ssoci ati on l Headnotes 23
Appellate Law/Trial Skills
Developing and Using a Theme in Appellate Briefs BY CHAD BARUCH
During his confirmation process in the Senate, Chief Justice John Roberts famously pledged “to call balls and strikes, and not to pitch or bat.” Although the Supreme Court’s jurisdiction does not extend to overseeing baseball games, this reference instantly evoked a familiar theme: the judge as neutral arbiter, dispassionate and able to rise above partisan politics. Given his background as one of the nation’s leading appellate practitioners, it is not surprising that Chief Justice Roberts grasped the importance of theme. The best appellate lawyers invest substantial effort in selecting and utilizing powerful themes in their briefs. This article offers a few tips on how you can too. In selecting a theme, strive for universality. Your theme should evoke common values or cultural norms recognizable to everyone. Selecting a compelling theme often begins with answering two questions. First, what is your appeal about? And second, why should your client win? If you can answer each question in one sentence, you are well on the way to developing an appellate theme. Indeed, you sometimes can use this “what-the-appeal-is-about” approach in your opening sentence. For example, you might begin the introduction to your brief with a statement like this: “This appeal is about buyer’s remorse.” Common sources for universal themes include the Bible, well-known works of literature, children’s stories, commercial slogans, and common sayings. One source I have found useful is Robert Fulghum’s best-selling book, All I Really Need to Know I Learned in Kindergarten. For example, everyone understands this simple lesson we
all learned as children: “If you mess it up, you clean it up.” Sometimes, you can kick-start a theme using musical lyrics. The brief in an appeal involving division of a large contingent fee might invoke rock-androll hall of famer Notorious B.I.G.’s observation that “the more money we come across, the more problems we see.” Or an appeal involving the necessity for expertwitness testimony could cite Bob Dylan for the proposition that “[y]ou don’t need a weatherman to tell you which way the wind blows.” Occasionally your theme may have more to do with the procedural posture of the case or deficiencies in your opponent’s approach than the underlying merits. Your theme might focus on evidentiary deficiencies, an improper approach under the standard of review, or a dispute over the scope of the appellate issue. I recently handled an appeal concerning whether intermediate appellate courts have the discretion to request supplemental briefing on an unchallenged ground for summary judgment. A central theme of my brief was that the case did not concern whether an appellate court must order such briefing but only whether it may do so. In other words, our theme was that the other side sought to cast the issue in broader terms than the case really presented. Sometimes, the theme may center on the effect of the court’s decision. Would a decision in favor of the other side expand legal duties, or create a new cause of action or defense? Would it result in societal harm? These types of concerns can serve as springboards to an effective appellate theme. Once you have selected the theme, use it throughout the brief. The most impor-
tant use of your theme is in the introduction, where you set the tone for everything to follow. But you should continue to harken back to your theme in the statement of facts, statement of issues, and argument. You may even be able to use the theme in section headers. One cautionary note: Your statement of facts should evoke the theme without explicitly discussing it; present the facts in such a way that they play into the theme. In his acclaimed brief attacking the Affordable Care Act in the United States Supreme Court, former Solicitor General Paul Clement rested his theme on the notion of “unprecedented and unbounded” governmental power. The brief’s very first sentence argued that the Act “imposes new and substantial obligations on every corner of society, from individual to insurers to employers to States.”
Having established this theme at the beginning of his brief, Clement used the words unprecedented or unbounded nearly 30 times throughout the rest of his brief. He set a powerful theme—and then pounded at it relentlessly. Clement’s brief often is cited by legal-writing experts and appellate practitioners as perhaps the best filed in the Supreme Court over the past decade. In the end, formulating a theme occasionally comes easily but usually engenders a great deal of thought and time. Sometimes, it may even involve “pitching” two or three possible themes to friends and colleagues to gauge their reactions. But the payoff justifies the effort—a compelling theme anchors the remainder of the brief. So, happy theming! HN Chad Baruch is the managing shareholder of Johnston Tobey Baruch PC, and may be reached at chad@jtlaw.com.
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24 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2021
Congratulations Quentin At Crain Brogdon Rogers, we know Quentin as the big-hearted and brilliant colleague with the endless, but perfectly delivered, Dad jokes so terrible we must laugh with him every day. Quentin’s clients know him as their champion who will take their calls at any hour. Quentin’s peers know him as the consummate professional, always prepared, always on top of the law, and as one of the finest trial lawyers in the country. Now, we all know him as the 2021 President-Elect of the Texas Trial Lawyers Association. • Texas Trial Lawyers Association, President-Elect 2021 • American Board of Trial Advocates, Dallas Chapter, President 2017 • Dallas Trial Lawyers Association President, 2007-08 • International Academy of Trial Lawyers, Fellow • American College of Trial Lawyers, Fellow • International Society of Barristers, Fellow
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