Legal Malpractice Damages Joint Venturing the Case: A Relationship of Convenience Psychological Trauma: What Every Civil Litigator Needs to Know The Harris County Law Library Celebrates a Century of Service Some Judicial Election Observations Interview with New President Laura Gibson
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THE HOUSTON
inside...
Volume 53 – Number 1
July/August 2015
LAURA GIBSON 2015-2016 President Houston Bar Association
Karen Highfield Christine Belcher Karnauch
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contents Volume 53 Number 1
July/August 2015
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FEATURES Malpractice Damages: 10 Legal Settlement-Value as an Emerging Basis for Proving Causation and Damages By Warren W. Harris, Jeffrey L. Oldham and Lindsay E. Hagans
Venturing the Case: 16 Joint A Relationship of Convenience By Randall O. Sorrels and Eric K. Gerard
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Trauma: What 22 Psychological Every Civil Litigator Needs to Know By John P. Vincent, Tonya Inman, Mary Madison Eagle and Ashley K. Stewart
Harris County Law Library 26 The Celebrates a Century of Service By Joseph D. Lawson
Judicial Election 32 Some Observations By The Hon. Randy Wilson
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36 An Interview with the President Gibson Takes Office As HBA 38 Laura President 39 50-Year Lawyers 41 President’s Awards
The Houston Lawyer
Cover Photo: Barfield Photography
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association, 2015. All rights reserved.
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contents Volume 53 Number 1
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departments Message 6 President’s Lawyers as Teachers By LAURA GIBSON the Editor 8 From Our Winning Ways By Angela L. Dixon Lawyers Who 35 Houston Made a Difference
The Hon. George Cire and Joe Reynolds By The Hon. Mark Davidson
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the record 42 off GI Ray: A Guy and His Jeep By Preston D. Hutson Profile in Professionalism 43 ADonald J. Guter Dean, South Texas College of Law
Dannye Holley
Dean, Thurgood Marshall School of Law, Texas Southern University
Leonard M. Baynes
Dean, University of Houston Law Center
Review 45 Media Go Set a Watchman:
Reconciling Our Inner Atticus Reviewed by Kimberly A. Chojnacki
Trends 46 Legal A Visitor’s Slip and Fall is not
a Health Care Liability Claim By Farrah Martinez
Texas Supreme Court Favors Commercial Property Owners in its Latest Interpretation of CPRC Chapter 95 By Preston Hutson
The Houston Lawyer
48 Litigation MarketPlace
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president’s message
By LAURA GIBSON Ogden, Gibson, Broocks, Longoria & Hall, L.L.P.
Lawyers as Teachers
The Houston Lawyer
T
“Tell me and I forget. Teach me and I remember. Involve me and I learn.” Benjamin Franklin
hank you for allowing me to serve as your president for the 2015-16 bar year. I am honored to serve as only the fourth woman president of the HBA in its 145 year history, following in the footsteps of Lynne Liberato, Amy Dunn Taylor and Denise Scofield. I pledge to work hard to serve all of the lawyers in our great city and to lead the Bar’s efforts to continue to serve our community. As the new HBA President, I have the privilege and the duty to add to the incredible legacy of projects and services provided by the HBA. Historically, many of my predecessors have focused their projects on service to our community. In recognition that the HBA already has in place the structure to meet the needs of our community, and in realization that the significant challenges lawyers face in the current market make it even more critical that the HBA increase the services it provides to its members, the HBA has been focusing its efforts in recent years on member benefits. I will continue to increase member benefits. Last year, the HBA added 35 hours of free CLE which are available to members online. This year, we will continue to add CLE content which will be available to our members free of charge. The Membership Committee will also continue to work on adding additional member benefits to make membership in the HBA even more attractive. Another member benefit that we will provide is to completely renovate the HBA Mentorship Program. Because of the difficult job market and the increased number of lawyers who go from law school to solo practice, a strong Mentorship Program is critical. The three co-chairs of the HBA Professionalism Committee, Warren Harris, Lonny Hoffman and Chris Popov, are undertaking the responsibility for creating an entirely new Mentorship Program. I have also had discussions with the leaders of our Sections to ask that each Section appoint a person from their council to serve on the Professionalism Committee. With strong participation at the Section level, I believe that the Mentorship Program will be even stronger. The new Mentorship Program will be launched in January 6
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2016, shortly after our recent law graduates will have passed the Texas Bar Exam. Historically, we have had no shortage of mentees but have had more difficulty in recruiting mentors. Please take a moment to reflect on all the people from whom you have learned during the course of your legal career. While you have that feeling of gratitude, please stop what you are doing, pick up the phone and call the HBA at 713-759-1133 to volunteer to serve as a mentor. Think of all the great advice you can share with a new lawyer! I also am in discussions with the Section leaders about increasing the substantive law resources which Sections can make available on a “members only” basis as an added member benefit. In my view, the Sections are one of the strongest elements of the Houston Bar Association and I believe that by increasing the involvement of the Sections, all of our members will benefit. Our second initiative for the year will be the creation of a new committee called Teach Texas which is the result of a partnership between the Houston Bar Association and the Texas Supreme Court Historical Society. The Society is a non-partisan, non-profit organization dedicated to the collection and preservation of papers, photographs and significant artifacts relating to the Supreme Court of Texas, the Appellate Courts and Texas judicial history. The Society has funded the publication of a book called Taming Texas: How Law and Order Came to the Lone Star State written by James L. Haley. Teach Texas will focus on seventh grade social study classes and Taming Texas will supplement their course materials. The Teach Texas Committee will be comprised of judges and lawyers who will pair together to teach in the classroom. Committee members will begin working with the seventh grade students in the spring of 2016. Committee members will be furnished supplemental materials in the form of scripts and videos to assist in their teaching efforts. Teach Texas will be an ongoing committee. The Society has already identified ten additional books that it is in the process of having commissioned. The committee will continue to teach lessons from the new books as they are published. Teach Texas will allow lawyers, many of whom have a love of history and a passion Continued on page 49
Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett
Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017
713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com
July/August 2015
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from the editor
By Angela L. Dixon Law Office of Angela L. Dixon, PLLC
Associate Editors
Polly Graham Fohn Haynes and Boone, LLP
Farrah Martinez Attorney at Law
Taunya Painter Painter Law Firm PLLC
The Houston Lawyer
Hon. Jeff Work Law Offices of Susan E. Cartwright
Jill Yaziji Yaziji Law Firm
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Our Winning Ways
I
t’s a new bar year and with that brings new leadership to the Houston Bar Association. I am pleased to welcome Laura Gibson as the new HBA president. The HBA has a talented group of leaders who serve on committees and sections, giving to the legal community selflessly. I have the privilege of serving as the Editor in Chief of the award-winning The Houston Lawyer magazine. Recently, The Houston Lawyer was selected as the winner of the State Bar of Texas Best Overall Newsletter Award. This award reflects the dedication of all those involved with the publication. From the associate editors, board members, staff, writers, reviewers to the publisher, it takes the entire team working together to provide a quality product. Anyone who knows me knows that I love winning. Whether it is winning an online contest or on a game show, to winning in court, I, like so many of you, thrive on the excitement of competition. As legal professionals, one could say we are winning on a daily basis. While we may not win every case for our client and there are challenges in the profession, we can still say we are winners because we have chosen to be a part of a profession that allows us to be advocates for those who may not otherwise have a voice, therefore making a difference to so many. My hope is that this year will be no exception and we all will continue winning with excellence thru the magazine and with our contributions to the legal community. This bar year we will have some exciting focus issues for The Houston Lawyer. Our president Laura Gibson has outlined some specific topics which we will focus on including legislative/appellate issues for September/October. For November/December, we will explore “the new normal: how to be the best lawyer you can be.” That issue will include an article on the restructured mentorship program that will roll out in January. The January/February issue will focus on a topic we should all try to keep current with, which is technology and the law. Next up in March/April will be diversity in the profession, thehoustonlawyer.com
and lastly, the May/June issue will have a historical theme. In this current general issue, we feature articles on a variety of topics. Judge Randy Wilson gives us insightful information in his judicial elections observations piece. Judge Wilson has been involved in the election process through being on the ballot four times, and he sheds some light on a variety of patterns of Harris County voters including participation, straight party voting and advertising effectiveness. The University of Houston Forensic Psychology Services staff contributes an article on psychological trauma and provides information on what every litigator should know when it comes to dealing with clients who may have a claim in this area. Warren W. Harris, Jeffrey L. Oldham, and Lindsay E. Hagans share their expertise on legal malpractice damages and how settlement-value can be seen as an emerging basis for proving causation and damages. Randall O. Sorrels and Eric K. Gerard examine the benefits and disadvantages of joint venturing. The article explains what joint venturing is and discusses fee-splitting, conflicts of interest, malpractice liability, advertising and disputes. Finally, Joseph D. Lawson gives us cause to celebrate with the Harris County Law Library as this year marks the 100th anniversary of the library. His article traces the history of the library and its founder and discusses how it has grown to be the premier library in the southwestern United States. We welcome your input and suggestions for articles that fit within our focus issues for the year. Also if you would like to write an article for one of the issues, please feel free to let us know. Additionally, we profile HBA member attorneys who do fun and interesting things outside of law practice in our Off the Record column so if you fit the bill, let us know. You can contact me or our managing editor Tara Shockley at taras@hba.org. This magazine belongs to the bar members and we want you to be a part of our award-winning ways!
BOARD OF DIRECTORS President
Secretary
Laura Gibson
Warren W. Harris
President-Elect
Treasurer
Neil D. Kelly
Alistair B. Dawson
First Vice President
Past President
Todd M. Frankfort
M. Carter Crow
Second Vice President
Benny Agosto, Jr.
DIRECTORS (2014-2016)
Richard Burleson Chris Popov
Diana Perez Gomez Greg Ulmer
Jennifer A. Hasley Daniella D. Landers
DIRECTORS (2013-2015) Bill Kroger Hon. Erin Lunceford
editorial staff Editor in Chief
Angela Dixon Associate Editors
Polly Graham Fohn Taunya Painter Jill Yaziji
Nicole Bakare Catherine Bratic Kimberly Chojnacki Jason Goff Al Harrison Preston Hutson Judy Ney Marni Otjen Raymond Panneton David Rusk Zach Wolfe
Farrah Martinez Hon. Jeff Work
Editorial Board
Paul Bowers Heaven Chee Jonathan C.C. Day Amy Hargis Matthew Heberlein Amanda Kreshover Jeff Oldham Suchismita Pahi Hon. Josefina Rendon Matthew Walker
Managing Editor
Tara Shockley
HBA office staff Executive Director
Kay Sim Administrative Assistant
Director of Projects
Receptionist/ Resource Secretary
Projects Assistant
Amanda Piesche
Bonnie Simmons Kristine Pagel
Lucia Valdez
Membership and Technology Services Director
Director of Education
Ashley G. Steininger
Ron Riojas
Continuing Legal Education Assistant
Membership Assistant
Caroline Fitzgerald
Dozie Oheri
Communications Assistant /Web Manager
Communications Director
Tara Shockley
Ariana Ochoa
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
Leonel E. Mejía Production Manager
Marta M. Mejía Advertising
Mary Chavoustie
thehoustonlawyer.com
July/August 2015
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By Warren W. Harris, Jeffrey L. Oldham and Lindsay E. Hagans
Legal Malpractice Damages:
Settlement-Value as an Emerging Basis for Proving Causation and Damages
L
egal malpractice is a tort based on negligence,1 and as such, it has the same basic elements as any negligence claim: duty, breach, causation, and damages.2 Proving causation and damages in a malpractice case, however, involves issues unique to the malpractice context. This article explores recent developments that may change how these elements are proven in future malpractice cases that arise out of underlying litigation. Case-Within-A-Case: The Traditional View To show causation, a legal malpractice plaintiff-client must establish that it would have prevailed on the underlying claim “but for” the attorney’s negligence. In the
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absence of this causation, the client was not harmed as a matter of law, no matter how negligent the attorney’s conduct.3 And in a legal malpractice claim, “damages are the difference between the result obtained for the client and the result that would have been obtained with competent counsel.”4 So for both elements, the legal malpractice case requires consideration of what would have happened in the underlying case. That analysis has been called the “case-within-a-case,” in which the client must reconstruct the underlying action before proceeding to the merits of the malpractice claim. Traditionally, to establish the case-within-a-case, the plaintiff-client must prove: (1) the client had a viable claim; (2) the cli-
ent would have won a favorable judgment; and (3) the judgment would have been collectible.5 If the client was a defendant in the underlying case, the client must prove a meritorious defense to the underlying claims.6 The key to this traditional view was that a client had to show that it would have prevailed at trial, won a favorable judgment, and collected that judgment. If the client cannot establish the underlying claim, then the client’s legal malpractice claim will fail. An Alternative Way of Satisfying the CaseWithin-A-Case? A recent hot topic in legal malpractice jurisprudence is the use of settlementvalue to prove causation and damages in the underlying case. The idea is that the plaintiff only needs to demonstrate that, but for the legal malpractice, it would have obtained a better result in the underlying case through a favorable, or more favorable settlement. The damages are then the difference between that better result and what the plaintiff obtained with the malpractice. The settlement-value approach is an attractive alternative for plaintiffs, because it eliminates the hurdle of proving that a plaintiff would have actually won at trial in the underlying suit. It also reflects the reality that most lawsuits end in settlement. Until very recently, the Texas Supreme Court had been generally silent or even hostile toward using settlement-value as a measure of determining causation and damages in the underlying case, but a case decided in the last few years signals a change in that policy. The Texas Supreme Court Pre-Elizondo v. Krist: Focus on Proving Underlying Case Discussion of the history of settlement-value evidence in Texas begins with Cosgrove v. Grimes,7 in which the Court adopted the case-within-a-case measure of damages with reference to proving the underlying case at trial, and did not discuss the settlement-value measure of damages. Cases following Cosgrove generally adhered to
the same path, reaffirming the case-within-a-case standard. One exception was Burrow v. Arce, in which the Court focused on the validity of an affidavit concerning the damages element.8 The Court did not directly address the question of whether settlement-value could substitute for the case-within-a-case requirement, but did criticize the affiant for not exploring the settlement-value of the underlying claims in greater depth: “[The affiant] might have analyzed the Clients’ injuries by type, or related settlement amounts to medical reports and expenses, or compared these settlements to those of similar claims, or provided other information showing a relationship between the plaintiffs’ circumstances and the amounts received.” 9 That suggestion of engaging in a comparable-settlement analysis was perhaps some indication that settlement-value might be a valid alternative. After Burrow v. Arce, though, the Court returned to its usual approach of using the case-within-a-case standard, with reference to proving the underlying case at trial, and not discussing settlement-value. Critically, the Court in Keck, Mahin & Cate appeared to favor strongly this traditional approach to the case-within-a-case requirement, and indeed it even specified that the recovery after a trial is the key by defining the “true value” of damages as “the recovery [the plaintiff in the underlying case] would have obtained following a trial in which [the defendant in the underlying case] had a reasonably competent, malpractice-free defense.”10 While settlement-value was not an issue in the case, this language appeared to foreclose it. The Courts of Appeals Pre-Elizondo v. Krist At the time in which the Texas Supreme Court was reaffirming the traditional approach to legal malpractice, the courts of appeals were reaching conflicting results on the propriety of using settlement-value as a measure of damages. For example, one of the first courts of appeals to seemingly reject the settlement-value approach was the Fort Worth Court of Appeals in Green v. Brantley.11 In discussing the damages
evidence, the court criticized an affidavit submitted by the appellant that admitted the affiant “could not predict what a jury would have done in the suit,” and instead speculated on the “settlement value” of the suit.12 The court held that this and another affidavit did not constitute evidence of damages because they did not speak to “the amount of money Appellants would have won and collected in the wrongful death suit or the theoretical Stowers action if there had been no settlement.”13 Likewise, the Fourteenth Court of Appeals repeatedly took a firm view on having a case-within-a-case proven by reference to a trial and collectible judgment in the underlying case.14 In Cooper v. Harris, decided in 2010, the Fourteenth Court of Appeals held that the plaintiff’s evidence was insufficient to meet this burden because it spoke only to the “reasonable settlement value” of the case.15 The court made clear that it required evidence that the plaintiff would have prevailed at trial, or at least would have survived summary judgment. The court found the plaintiff’s evidence deficient because (1) it did not address whether the claims “would have survived a summary-judgment motion on the merits” and (2) it did not address whether plaintiff “would have recovered a money judgment.”16 In contrast to these cases, other courts of appeals were supportive of settlementvalue evidence.17 The Corpus Christi Court of Appeals in Stonewall Surplus Lines Ins. Co. v. Drabek, for instance, confronted the question “whether the value of the underlying lawsuit changed as a result of the alleged [attorney] negligence.”18 To answer that question, the court turned to affidavits noting the settlement-value of the case before and after the alleged negligence.19 The court held these affidavits created a fact issue and, further, specifically pointed out that the appellees had “failed to offer any summary judgment evidence of the settlement value of the case.”20 The First Court of Appeals also embraced the use of settlement-value evidence.21 It held that evidence of success in the underlying case, through either a jury
trial or a favorable settlement, would be sufficient: “[E]xpert testimony was... required to show that, but for appellees’ alleged acts and omissions, appellants would have received a settlement amount or jury verdict greater than that which they actually received.”22 The First Court of Appeals reaffirmed this stance a few years later.23 The Beaumont Court of Appeals also favored the use of settlement-value evidence, discussing it extensively in the section of an opinion on the proof needed for causation.24 The court also faulted the plaintiff for failing to raise a fact issue “on whether he would have prevailed in the coin company lawsuit, or could have obtained a different, more beneficial recovery but for the conduct of his attorneys.”25 Elizondo v. Krist: The Texas Supreme Court Indicates Approval for Settlement-Value After years of differing lower court opinions, the Texas Supreme Court resolved at least part of the settlement-value debate in Elizondo v. Krist.26 The basic question in Elizondo was whether the plaintiffs had offered legally sufficient evidence of legal malpractice damages.27 But as part of that, the parties addressed whether settlementvalue can be a proper measure of damages.28 Ultimately, the Court dismissed the notion that, for purposes of proving damages, its precedents required proof that a malpractice plaintiff would have prevailed at trial: “These cases recognize that legal malpractice damages are the difference between the result obtained for the client and the result that would have been obtained with competent counsel. They do not require that damages can only be measured against the result the client would have obtained if the case had been tried to a final judgment.”29 In doing so, the Court suggested that clients could possibly use settlement-value as the measure of legal malpractice damages. But, significantly, the Court carefully tailored its analysis to the mass-tort aspect of the Elizondo case. It noted the defendant in the underlying case was “a large, solvent corporation [that] made the decision to settle every case arising from the plant thehoustonlawyer.com
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explosion.”30 The Court then approved the settlement-value approach in that circumstance: “Here, where the same defendant settled thousands of cases, and indeed made the business decision to settle all cases and not try any to a verdict, we see no reason why an expert cannot base his opinion of malpractice damages on a comparison of what similarly situated plaintiffs obtained from the same defendant.”31 The Court confirmed this evidence would meet the “true value” standard of Keck, Mahin & Cate.32 Post-Elizondo v. Krist: Lingering Uncertainty Elizondo left many questions unanswered, most importantly whether settlement-value is an acceptable measure of damages outside the mass-tort context. Further, the Court offered no guidance on whether settlement-value is an acceptable measure of damages in a case (mass tort or otherwise) in which no comparable settlements are available, or what it would deem sufficient to prove settlement-value in that situ-
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ation. Finally, there is no clear indication as to whether settlement-value is a valid approach to proving causation in a legal malpractice case. What little post-Elizondo case law there is confirms this uncertainty. One case, Hearn v. Snapka, teed up the issue of using settlement-value as a measure of damages for a lost settlement opportunity, but was ultimately decided on other grounds.33 The court of appeals rejected the expert testimony on settlement value, and for that reason it never reached the question of whether a settlement-value measure of damages is valid where there was no settlement at all.34 The Texas Supreme Court requested full briefing in Hearn and the parties squarely presented the settlementvalue issue, but the petition for review was ultimately denied. The Fourteenth Court of Appeals recently referenced in passing the settlement-value issue, but also decided that case on other grounds.35 The claims arose out of the same mass-tort event settlements that gave rise to the claims in Eli-
zondo, and the trial court awarded the law firm a declaratory judgment of no negligence. On appeal, the plaintiffs raised the issue whether Texas recognizes a cause of action for negligent settlement.36 The court of appeals referenced the language in Elizondo that “what similarly situated plaintiffs obtained from the same defendant... is perhaps the best evidence of the realworld settlement value in the case,”37 but ultimately found that the plaintiffs had not met their burden to tailor their requests for production narrowly enough and thus affirmed the trial court’s declaratory judgment.38 Even if the Texas Supreme Court were to grant review in this case and reach issues pertaining to the use of settlementvalue evidence in malpractice cases, however, any decision will still be in the masstorts context. Whether the Court will recognize or expand the use of settlementvalue evidence beyond mass-torts cases remains an open question in Texas. Other States’ Law on Settlement-Value Outside of Texas, the courts’ views on
the propriety of settlement-value as a measure of damages vary widely. Some jurisdictions simply have not addressed the issue altogether. Thirty-five states have confronted the question, but with varying degrees of specificity. Thirteen states are generally supportive of using a settlement-value measure of damages in a legal malpractice case. And thirteen states, while allowing a client to pursue a claim for lost settlement value, have not specified what the proper measure of damages is. Four states outright reject any claim for inadequate settlement. For more detail on other states’ decisions on settlement-value damages, see the authors’ paper, Legal Malpractice Damages.39 Conclusion The evolution of the use of settlementvalue in Texas and in other jurisdictions shows that it is a recurring, but unsettled, issue that should be carefully considered by both sides of the case when confronting a legal malpractice action.
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THE POWER OF AN LL.M. DEGREE The University of Houston Law Center is home to renowned LL.M. specialty programs with two (Health Law and Intellectual Property) ranked in the Top Ten according to U.S. News & World Report. • Energy, Environment and Natural Resources- There is no better place to study the interrelated areas of energy, environment and natural resources law than UH Law Center located in the energy capital of the world. • Health Law- The Health Law & Policy Institute emphasizes interdisciplinary studies in all areas of health law and policy, and benefits from UH’s association with the Texas Medical Center, the world’s largest medical complex. • Intellectual Property & Information Law- The Law Center’s top-rated IPIL program is on the cutting edge as these disciplines rapidly evolve in the global economy. • International Law- Growing interdependence places a premium on lawyers who understand the intricacies of public and private international law. Houston holds a commanding presence in the global marketplace, and our LL.M. program capitalizes on the city’s substantial connections. • Tax Law- The LL.M. tax program provides the enhanced knowledge and practical skills needed to meet the challenge of successfully dealing with ever-changing tax laws.
Spring 2016 application is now available. For more information contact llm@uh.edu or visit law.uh.edu/llm UH is an EEO/AA institution
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Warren W. Harris is a partner in Bracewell & Giuliani LLP in Houston, where he heads the firm’s appellate group. He is a past president of the Texas Supreme Court Historical Society and a past editor in chief of The Houston Lawyer. Jeffrey L. Oldham is a partner in the appellate group at Bracewell & Giuliani LLP in Houston. He previously served as a law clerk for Chief Justice William H. Rehnquist of the United States Supreme Court. Lindsay E. Hagans is an associate in the appellate group at Bracewell & Giuliani LLP in Austin. She previously served as a law clerk for Chief Justice Nathan L. Hecht of the Supreme Court of Texas. Endnotes
1. See Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). 2. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). 3. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 115 (Tex. 2004). 4. Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013). 5. Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex. App.—San Antonio 1998, pet. denied) (citing Cosgrove, 774 S.W.2d at 666). 6. See Green v. McKay, 376 S.W.3d 891, 898 (Tex. App.—Dallas 2012, pet. denied). 7. 774 S.W.2d 662 (Tex. 1989). 8. 997 S.W.2d 229, 234-37 (Tex. 1999). 9. Id. at 236 (emphasis added). 10. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 703 n.5 (Tex. 2000). 11. Green v. Brantley, 11 S.W.3d 259 (Tex. App.—Fort Worth 1999, pet. denied). 12. Id. at 267-68. 13. Id. at 268. 14. See Cooper v. Harris, 329 S.W.3d 898 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also Duerr v. Brown, 262 S.W.3d 63, 76 (Tex. App.—Houston [14th Dist.] 2008, no pet.); McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 15. Cooper, 329 S.W.3d at 904. 16. See id. 17. See, e.g., Stonewall Surplus Lines Ins. Co. v. Drabek, 835 S.W.2d 708 (Tex. App.—Corpus Christi 1992, writ denied). 18. Id. at 712. 19. Id. 20. Id. 21. Goffney v. O’Quinn, No. 01-02-00192-CV, 2004 WL 2415067 (Tex. App.—Houston [1st Dist.] Oct. 28, 2004, no pet.). 22. Id. at *6. 23. See Hoover v. Larkin, 196 S.W.3d 227 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). 24. See Walker v. Morgan, No. 09-08-00362-CV, 2009 WL 3763779, at *5 (Tex. App.—Beaumont Nov. 12, 2009, no pet.) (listing “the viability of a case, the likelihood of settlement, an appropriate amount for settlement, and the timing of settlement” as factors relevant to the causation and damages inquiries). 25. Id. 26. 415 S.W.3d 259 (Tex. 2013). Some of the authors of this article were co-counsel for the defendants-attorneys in Elizondo v. Krist, in both the court of appeals and the Texas Supreme Court. 27. Id. at 262-66. 28. Id. at 263. 29. Id. 30. Id. 31. Id. 32. Id. 33. See Hearn v. Snapka, No. 13-11-00332-CV, 2012 WL 7283791 (Tex. App.—Corpus Christi–Edinburg Dec. 28, 2012, pet. denied). 34. Id. at *3-5. 35. See Hernandez v. Abraham, Watkins, Nichols, Sorrels & Friend, No. 1413-00567-CV, 2014 WL 5780388 (Tex. App.—Houston [14th Dist.] Oct. 21, 2014, pet. filed). 36. See id. at *5. 37. See Elizondo, 415 S.W.3d at 263. 38. See Hernandez, 2014 WL 5780388 at *6. 39. See WARREN W. HARRIS, ET AL., Legal Malpractice Damages, DAMAGES IN CIVIL LITIGATION COURSE, STATE BAR OF TEXAS (Feb. 2015).
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham Watkins Nichols Sorrels Agosto and Friend Adair & Myers PLLC Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP Baker • Wotring LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman | Pugh | Chambers, PLLC Berg & Androphy Bingham, Mann, & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Bush & Ramirez PC Caddell & Chapman Cage Hill & Niehaus LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell LLP Cozen O’Connor Crady, Jewett & McCulley, LLP Crinion Davis & Richardson LLP De Lange Hudspeth McConnell & Tibbets LLP Dinkins Kelly Lenox Lamb & Walker LLP Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly LLP Doyle Restrepo Harvin & Robbins LLP Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis Carstarphen Dougherty & Griggs PC Ewing & Jones, PLLC Faubus Keller & Burford LLP Fernelius Alvarez PLLC Fibich Leebron Briggs Josephson, LLP Fisher, Boyd & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins PC Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith PC Germer PLLC Givens & Johnston PLLC Godwin Lewis, P.C. Goldstein Law PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay PC Harris, Hilburn & Sherer Hartline Dacus Barger Dreyer LLP
Hawash Meade Gaston Neese & Cicack LLP Henke & Williams Hicks Thomas LLP Hirsch & Westheimer PC Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs PC Jackson Lewis LLP Jenkins Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Johnson Trent West & Taylor LLP Jones Walker LLP Joyce + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. KoonsFuller, PC Kroger I Burrus Lapidus Knudsen PC LeBlanc Bland P.L.L.C. LeClairRyan Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson PC MacIntyre, McCulloch, Stanfield & Young, LLP McGinnis Lochridge McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carrabba Mills Shirley LLP Morris Lendais Hollrah & Snowden Murray I Lobb PLLC Nathan Sommers Jacobs PC Ogden Gibson Broocks Longoria & Hall, LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Pagel Davis & Hill PC Parrott Sims & McInnis, PLLC Perdue Brandon Fielder Collins & Mott Perdue & Kidd L.L.P. Phelps Dunbar LLP Phillips , Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Radcliffe Bobbitt Adams Polley PLLC Ramey, Chandler, Quinn & Zito, P.C. Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer Moore Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz Page & Harding LLP Shannon Martin Finkelstein & Alvarado, P.C.
Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris Singleton Cooksey LLP Smith Adams Law Feehan LLP Smith Murdaugh Little & Bonham LLP Smyser Kaplan & Veselka LLP Sprott Newsom Lunceford Quattlebaum Messenger, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard LLP Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen, and Morris, L.L.P. Thompson & Horton LLP Thompson Coe Cousins & Irons LLP Taunton, Snyder & Slade, P.C. The Ward Law Firm Ware Jackson Lee & Chambers LLP Watt Beckworth Thompson & Henneman LLP Weinstein Tippetts & Little LLP Weycer Kaplan Pulaski & Zuber PC Williams Birnberg & Andersen LLP Williams Kherkher Hart Boundas, LLP Williams Morgan, P.C. Willingham, Fultz & Cougill, LLP Wilson Cribbs & Goren PC Wilson Elser Moskowitz Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close LLP Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman Axelrad Meyer Stern & Wise PC Zimmerman, Lavine & Zimmermann P.C. Zukowski Bresenhan, Sinex & Petry LLP Firms of 25-49 Attorneys Adams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Akin Gump Strauss Hauer & Feld LLP Beck Redden LLP Beirne Maynard & Parsons, L.L.P. BoyarMiller Chamberlain Hrdlicka White Williams & Aughtry Coats, Rose, Yale, Ryman & Lee, P.C. Cokinos Bosien & Young Gibbs & Bruns LLP Greenberg Traurig Jones Day Littler Mendelson PC Roberts Markel Weinberg Butler Hailey PC Seyfarth Shaw LLP
Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker LLP Martin Disiere Jefferson & Wisdom LLP Morgan Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts LLP Bracewell & Giuliani LLP Norton Rose Fulbright US LLP Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root, Inc. LyondellBasell Industries MAXXAM, Inc. Newfield Exploration Company Petrobras America Inc. Plains All American Pipeline L.P. Rice University S & B Engineers and Constructors, Ltd. Sysco Corporation Texas Children’s Hospital Total E&P USA, Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas
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By Randall O. Sorrels and Eric K. Gerard
Joint Venturing the Case:
A Relationship of Convenience
T
he joint venture is a middle ground in legal practice between independence and partnership, offering flexibility and other advantages drawn from both ends of the spectrum. Along with these benefits, however, come complications in the division of fees, mandatory client disclosures, conflicts of interest, advertising restrictions, malpractice liability, and the potential for disputes between the venturing parties themselves. This article surveys the advantages and potential pitfalls of this arrangement, assisting the prospective joint venturer in gauging whether it suits his or her firm’s objectives in the context of a given engagement. I. What is a Joint Venture? Commercial entities in myriad industries form joint ventures to pursue projects of limited scope and duration. To qualify as a joint venture under Texas law, the association must be based on either an express or implied agreement containing these essential elements: (1) a community of interest in the venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right of control or management of the enterprise.1 Both risk and reward must be shared.2 Of course, based on this definition, many businesses not designed as “joint ventures” would so qualify—partnerships chief amongst them. Indeed, as a general rule, joint ventures and partnerships are
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governed by the same rules.3 Yet the continued legal and practical separation of the entities and, more saliently, the finite duration of the association distinguish the joint venture from a partnership; a joint venture is limited to a particular enterprise or engagement, thus imposing a temporal restriction (even if an indefinite one) on the arrangement.4 Between law firms, the term is used to describe both single-matter associations and ongoing arrangements involving a particular category of cases. For example, a commercial lawyer retained by a seriously injured client may choose to partner with a firm that regularly brings such matters to trial, as doing so will add credibility to settlement negotiations and ensure the matter is properly prepared should it need to go to a jury. Or, two plaintiff’s firms may join up in representing a number of clients—perhaps even hundreds of thousands of claims—in mass tort litigation concerning a single drug. In this case, the association is ongoing, enduring past resolution of a single matter until the stream of litigation dries up. Either way, there is no formal, legal combination. The joint venture is not a merger. The firms remain distinct entities, retaining their own names and identities and anticipating a future in which the two may no longer cooperate. Further, they usually continue working separately on other matters unrelated to the subject of the joint venture, without the other’s involvement, and may even joint venture with other firms on those other cases. In short, rather than marry, the two are content to date for as long as it serves their mutual interests, and they need not be monogamous. Why might two firms enter such an unconstrained relationship? Commonly, economies of scale and/or complementary assets drive them together. To continue the example above, a small plaintiff’s firm with a steady flow of defective product claims may not have the resources to take on a big pharmaceutical company or auto manufacturer and the herd of bigfirm defense lawyers kept in their stables.
Partnering with another firm, or a group of firms, may allow them to come closer to matching the manpower and monetary resources of their adversaries. In other circumstances, one firm may generate the case leads but lack the ability to properly prosecute them alone. A joint venturer can bring the experience and expertise needed to execute. This logic may prove particularly persuasive in the context of complicated cases such as products liability, medical malpractice, or toxic tort actions, where the technical nature of the subject matter and attendant law merits the inclusion of a firm accustomed to such challenges. As described below, however, these benefits must be weighed against the added complications of such an arrangement. II. Fee-Splitting Among Joint Venturers Perhaps unsurprisingly, the subject in joint venturing that generates the most interest is the division of fees. The Texas Disciplinary Rules of Professional Conduct (“Rules”) define the terms as “a single billing to a client covering the fee of two or more lawyers who are not in the same firm.”5 Rule 1.04 provides the mainstay of the Rules governing referral fees and fee splitting.6 While most frequently invoked in the context of contingency-fee litigation, these guidelines apply equally to all legal representation, litigation or otherwise.7 As a threshold matter, the decision to refer a case or associate with other counsel “should be made based solely on the client’s best interest.”8 This requires due diligence. The referring or associating lawyer must “conduct a reasonable investigation of the client’s legal matter and refer the matter to a lawyer whom the referring or associating lawyer reasonably believes is competent to handle it.”9 Hence, the small plaintiff’s firm with a pipeline of pharmaceutical torts should not likely joint venture with a family law firm with no experience in the area, however successful, respected, or well capitalized the latter may be. After the association of counsel is
deemed in the client’s best interest, the firms must agree on how to split the fees among them. Paragraph (f) of Rule 1.04 allows the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes joint responsibility for the representation.10 This provision marks a change from the pre2005 guidelines that permitted a lawyer to forward a matter to another for a referral fee despite having done virtually no work on the matter, the “pure forwarding fee” arrangement that had been countenanced by the Texas ethics rules since 1938.11 This agreement to pay a referral fee, in the context of a joint venture or otherwise, must occur before the referral is actually made, or it may be unenforceable for want of consideration.12 Rule 1.04(g) provides that the client must be informed of the arrangement and consent in writing to its essential terms “prior to the time of the association or referral proposed.” These essential terms include: (1) the identity of all lawyers or law firms who will participate in the feesharing agreement; (2) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation; and (3) the share of the fee that each lawyer or law firm will receive or the basis on which the division will be made if the division is based on proportion of service performed.13 A failure to disclose these specific terms, even if the client has countenanced the association generally, “does not constitute sufficient client confirmation within the meaning of this rule,”14 and the agreement may be deemed unenforceable as contrary to public policy.15 Further, each attorney or firm in the joint venture must have a direct attorneyclient relationship with the client.16 On its face, fee-splitting based on the assumption of “joint responsibility” appears to more closely align with the definition of the joint venture under Texas law set forth above, which requires a mutual right of control.17 Indeed, the Comments to American Bar Association (ABA) Model Rule 1.5 explain that “[j]oint responsibil-
ity for the representation entails financial and ethical responsibility as if the lawyers were associated in a partnership.”18 Comments to the Texas Rules, however, provide only that joint representation “entails ethical and perhaps financial responsibility for the representation,” going on to clarify that attorney duties need not be evenly split.19 The referring lawyer is not required to attend depositions or hearings or even request copies of the pleadings and correspondence. The referring lawyer’s minimum involvement is more administrative in nature, demanding simply that the attorney reasonably investigate the claims, refer the case to a competent lawyer, monitor the matter, and communicate necessary information to the client.20 Viewed through the lens of these flexible requirements, “joint responsibility” takes on a paler hue than a full-blooded joint venture as the term is commonly understood. Conversely, a “proportionate responsibility” arrangement may actually more closely resemble a joint venture in the traditional sense. As Judge David Evans wrote, “[w]hen two lawyers agree to work a case together and to divide their fees proportionally, their relationship becomes one of co-counsel and is not one of referring lawyer and handling lawyer.”21 Fees between firms are divided proportionate to the services each rendered.22 Both firms must perform substantial legal services in handling the case and base their method of division on the amount of services rendered, the level of responsibility assumed, and the value of the services rendered.23 III. Conflicts of Interest and Duties to the Joint Venturer’s Employer Joint venturing also raises unique concerns regarding conflicts of interest. Rule 1.06 precludes representation of adverse parties in the same litigation, as well as of clients with direct and adverse interests in substantially related matters absent an effective waiver.24 Failure to disclose a conflict may be actionable as a breach of fiduciary duty or professional negligence.25 Before the 2005 reforms, at least one thehoustonlawyer.com
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court found that receipt of a forwarding fee following the referral of a party adverse to an existing client did not constitute a violation of the conflicts rule, reasoning that the act of forwarding the file did not constitute legal representation of a material sort.26 In the context of joint venturing, however, such a hands-off approach is untenable, as the two types of fee-splitting agreements available—joint and proportional responsibility—both entail genuine client representation. The joint venture’s proposed representation must be checked against client rosters of both firms to ensure no conflicts exist. Furthermore, a moonlighting lawyer who joint ventures a case with another firm absent her employer’s approval could be subject to breach of contract or breach of fiduciary duty claims if she failed to first present the opportunity to her own firm and obtain approval to refer the case out.27 Again, as with client dealings, disclosure is the key. IV. Malpractice Liability in Joint Ventures Joint venturing also complicates concerns regarding professional malpractice. As discussed above, a “joint responsibility” association under the Texas Rules need not entail equal responsibility. Texas permits far more flexibility than the nearpartnership embrace that the ABA Model Rules demand. And, unlike the Model Rules, the arrangement does not give rise
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to default joint-and-several liability like a partnership.28 Proportionate responsibility arrangements, where each lawyer or firm accepts a specific share of duties, may be even less likely to generate shared liability due to the clear demarcation of duties and compensation between the two sets of counsel. That said, pitfalls remain. Comments to the Rules unhelpfully provide that “[w]hether [the division of fees] or any additional activities that a lawyer might agree to undertake, suffice to make one lawyer participating in such an arrangement responsible for the professional misconduct of another lawyer who is participating in it and, if so, to what extent, are intended to be resolved by Texas Civil Practice and Remedies Code, ch. 33, or other applicable law.”29 The absence of Texas case law on the issue does little to clarify. What is clear is that both firms are liable for their own negligence in the representation, as each formally represents the client. Further, referring lawyers have occasionally been held liable for negligently selecting the handling attorney, although reported examples in Texas are lacking. Finally, joint-and-several liability may be imposed for the negligence of the other attorney where the association meets the legal standard of a joint venture discussed above, to which the law of partnership generally applies.30 While hardly a set of bright-line rules, one may infer that the
more intertwined the association appears, the more likely shared or vicarious liability could be imputed. V. Advertising by the Joint Venture As the joint venture exists to exploit perceived synergies between the firms, its participants may promote those advantages to potential clients. Because the two (or more) firms associating in a joint venture remain distinct going concerns, their promotional efforts constitute “cooperative advertising,” subject to the special strictures of Rule 7.04(o). It provides that a lawyer may not advertise “as part of an advertising cooperative or venture of two or more lawyers not in the same firm” unless the ad (1) states that it is paid for by the cooperating lawyers, (2) names each cooperating lawyer, (3) adhered to general requirements regarding advertising special competency (such as board certification), (4) does not imply special competency or superiority, and (5) otherwise complies with the Rules. These additional restrictions reflect the Ethics Committee’s apparently dim view of joint ventures as an easy conduit for consumer deception: “the fact that several independent lawyers have joined together in a single advertisement increases the risk of misrepresentation or other forms of inappropriate expression.”31 While the Rules require disclosure of each of the cooperating lawyers in the joint venture’s advertisements, the ventur-
ers must be careful not to run afoul of the prohibitions found in Rule 7.01 paragraphs (a) and (e) concerning misleading firm names and “trade names” that they might otherwise choose to tout their association.32 For example, joint-venturing firms cannot advertise under the name of one of their firms followed by the word “Group” (e.g., “The Smith Law Group), as a recent State Bar Ethics Committee opinion determined.33 They would nearly certainly also be barred from using a descriptive name referring to the subject or practice area of the joint venture (e.g., “The Fen-Phen Law Firm” or “The Offshore Injury Firm”). Each of these constitutes an impermissible “trade name” violating Rule 7.01(a)’s proscription of “trade or fictitious names.” VI. Disputes Between Joint Venturers A joint venture, like any business association, may also give rise to disputes between the venturers themselves. As noted above, partnership law typically controls the rights and obligations of joint venturers. Importantly, however, and in contrast
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to partnership law, no fiduciary duty is created by a joint venture agreement between firms, rendering a cause of action on that ground untenable.34 Similarly, the joint venture normally does not create a duty of good faith and fair dealing, as Texas law holds that no such duty exists in ordinary commercial transactions.35 A standard joint venture between law firms qualifies as such a transaction.36 A joint venturer’s actionable claims are thus more likely to be based on, for example, breach of the joint venture or referral agreement, reflecting the arm’s-length nature of this particular model of association. VII. Conclusion The joint venture allows for an expansion or deepening of one’s practice without taking the more lasting and consequential step of full partnership. The bond between the joint venturers is temporary, purposeful, and transactional in nature. It provides a relationship of convenience— one whose future may be both finite and complicated but which can prove quite
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satisfying while the participants’ interests remain aligned. Randall Sorrels is a partner at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. He is a past president of the Houston Bar Association and is Board Certified in Personal Injury Trial Law and Civil Trial Law by the Texas Board of Legal Specialization. Eric Gerard is an associate at the firm, a former prosecutor at the Manhattan District’s Attorney’s Office, and a graduate of the University of Virginia School of Law. Endnotes
1. Coastal Plains Development Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex.1978). 2. See, e.g., Ben Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 121 (Tex. App.—Tyler 1993), writ denied (June 23, 1993) (“For a joint venture or a partnership to exist, there must be an agreement to share both profits and losses, if any.”). 3. Henrich v. Wharton County Livestock, Inc., 557 S.W.2d 830, 833 (Tex. Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). 4. State v. Houston Lighting & Power Co., 609 S.W.2d 263 (Tex.Civ.App.– Corpus Christi 1980, writ ref’d n.r.e.). 5. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 10. 6. Tex. Disciplinary Rules Prof’l Conduct R. 1.04. 7. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 10. 8. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 13. 9. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 13; see also Tex. Disciplinary Rules Prof’l Conduct R. 1.01. 10. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 10. 11. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 14; see
also Judge David Evans, The Practicalities of the New Referral Fee: To Refer or Not to Refer? That is the Question, Ch. 11, State Bar of Texas, 2005 “Spring Training Course” (discussing “forwarding-fee” arrangements). 12. See Fleming v. Campbell, 537 S.W.2d 118, 120 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). 13. Tex. Disciplinary Rules Prof’l Conduct R. 1.04; see also Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 15. 14. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 15; see also In re Wright, 138 Fed. Appx. 690, 696 (5th Cir. 2005); Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 16. 15. See, e.g., Lemond v. Jamail, 763 S.W.2d 910, 914 (Tex. App.—Houston [1st Dist.] 1988), writ denied (May 17, 1989). 16. Mallory v. Arctic Pipe Inspection Co., Inc., 01-12-00979-CV, 2014 WL 701123, at *4 (Tex. App.—Houston [1st Dist.] Feb. 20, 2014), review denied (Feb. 6, 2015). 17. Muller, 846 S.W.2d at 121. 18. Model R. Prof. Conduct 1.05, Comment 7. 19. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 13. 20. Id.; see also Tex. Disciplinary Rules Prof’l Conduct R. 1.03. 21. Evans, supra note 11. 22. Tex. Disciplinary Rules Prof’l Conduct R. 1.04. 23. Id. 24. Tex. Disciplinary Rules Prof’l Conduct R. 1.06. 25. See Murphy v. Gruber, 241 S.W.3d 689, 695-96 (Tex. App.—Dallas 2007, pet. denied). 26. See Polland & Cook v. Lehmann, 832 S.W.2d 729, 737 (Tex. App.— Houston [1st Dist.] 1992), writ denied (Sept. 30, 1992). 27. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 203 (Tex. 2002). 28. See Tom Crosley and Tim Torres, Referral Fees, San Antonio Lawyer, Sept.-Oct. 2010. 29. Tex. Disciplinary Rules Prof’l Conduct R. 1.04, Comment 14. 30. See text accompanying notes 1 through 3 supra. 31. Tex. Disciplinary Rules Prof’l Conduct R. 7.04, Comment 19. 32. Tex. Disciplinary Rules Prof’l Conduct R. 7.01. 33. Prof’l Ethics Comm. for the State Bar of Tex., Op. 591 (Jan. 2010). 34. See, e.g., Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 620 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). 35. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 52 (Tex.1998). 36. Dardas, 194 S.W.3d at 620.
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By John P. Vincent, Tonya Inman, Mary Madison Eagle and Ashley K. Stewart
Psychological Trauma:
What Every Civil Litigator Needs to Know
P
sychological trauma is a common complaint in various types of civil litigation, such as employment law (e.g. unwanted sexual advances), personal injury (e.g. a life threatening motor vehicle accident or refinery explosion), premises liability (e.g. a sexual assault at an apartment complex), or medical malpractice (e.g. a medical error resulting in permanent disability or death). Mental health experts are often called upon to testify on behalf of the plaintiff to describe the nature and severity of their symptoms and the plaintiff’s response to treatment to mitigate emotional damages. Experts may also be called upon by the defense to rebut testimony or the methodology on which it was based.1 In the context of their role as experts, mental health professionals generally assign a diagnosis to the plaintiff’s symptoms, most typically Acute Stress Disorder (ASD) or Posttraumatic Stress Disorder (PTSD). In the past 15 years, mental health experts have relied on the American Psychiatric Association’s Diagnostic and Statistical Manual—IV (DSM-IV-TR). In May 2013, the DSM-5 was launched, and the diagnostic landscape begun to undergo a major change that has direct implications for forensic practice.
DSM-5 definitional changes to PTSD As outlined in Vincent, Stewart, Inman and Eagle,2 many of the diagnostic criteria of the DSM-5 map on to the diagnostic guidelines of the DSM-IV-TR3 with slightly different groupings and diagnostic clusters, the trauma- and stress-related diagnoses have changed and now constitute their own separate grouping.4 While many trauma reactions involve anxiety and fear-based symptoms, individuals who are exposed to trauma can also exhibit anhedonia and dysphoria, symptoms reflective of anger and aggression as well as dissociative symptoms. Criterion A—or what constitutes “trauma” for diagnostic purposes—has been changed. The DSM-IV-TR’s Criterion A had two prongs: a) “the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury,” and b) the person’s response involved intense fear, helplessness, or horror. The DSM5’s Criterion A is notably different in that diagnosable trauma is evident only if the individual was exposed to death or threatened death, serious injury, or sexual violence. Reference to the emotional reactions to a traumatic event(s) has been dropped from the Criterion A definition, although those reactions are now included under “negative alterations in cognitions and mood” (Criterion D). Moreover, the DSM-5 guidelines clarify the individual’s relationship to the trauma, either as directly experiencing the trauma, witnessing the trauma affecting others, learning that the trauma involved a close friend or relative (with the death or threatened death of a close friend or family member, the trauma must have been violent or accidental), or repeated or extreme exposure to aversive details of the event, as with first responders. Another change involves the clarification and regrouping of the previous re-experiencing (Criterion B), avoidance (Criterion C), and hyperarousal (Criterion E) symptom clusters that are required for a trauma diagnosis. A new symptom cluster (Criterion D) has been added,
which is characterized by negative alterations in cognition and mood. While these trauma symptoms have been well documented in the literature, they are now included in DSM-5 as an explicit part of the diagnosis.5 6 7 Forensic implications of PTSD diagnostic changes in the DSM-5 These changes, particularly those within Criterion A, may mean that some “traumas” that did not meet the DSM-IV-TR criteria may be diagnosable under the DSM5. For example, a female victim of sexual harassment who feared sexual violence but did not experience the intense horror of an actual assault, may now qualify for a diagnosis of PTSD assuming that the other criteria for symptom clusters under Criterion B, C, D, and E are met. It is also possible that an individual who would have been diagnosed with PTSD under the DSM-IV-TR would no longer meet criteria under the DSM-5. For example, an individual who was involved in a lifethreating automobile accident would no longer qualify for a PTSD diagnosis if their emotional reactions of fear and horror were short lived (not persistent) and they did not exhibit any additional alterations of mood and cognition in order to satisfy Criterion D. It is possible that alterations to PTSD diagnostic criteria within the DSM-5 will cause an increase in frivolous litigation, as some believe that it will now be “easier” to diagnose a broader range of individuals with a wider variety of symptom presentations and severity levels with PTSD. National estimates of PTSD prevalence suggest that the DSM-5 rates may actually be lower than under the DSM-IV-TR, due in part to the fact that the unexpected death of a family member or close friend due to natural causes is no longer included. This difference may account for as much as 50% of the discrepancy between the DSM-IV-TR and the DSM-5.8 Importantly, although this research may apply to general prevalence rates of PTSD, it may not generalize to rates of PTSD found in typical forensic settings. For instance, claims
of PTSD due to the death of a close friend or family member are relatively infrequent in forensic settings, with the exception of wrongful death torts. Other changes to Criterion A (e.g., inclusion of sexual assault, elimination of subjective criteria) as well as changes in Criteria B through E may impact prevalence rates in forensic settings with possible increases in diagnoses from the DSM-IV-TR to DSM-5 based on the expanded diagnostic inclusion criteria. During this period of transition from the DSM-IV-TR to the DSM-5, experts should be prepared to articulate why symptoms that qualify for a diagnosis of PTSD based on the DSM-IV-TR may no longer qualify for diagnosis under the DSM-5, or vice versa. Assessment of psychological trauma Forensic evaluation of psychological trauma requires a multimethod approach that includes a review of pleadings, medical records, depositions, and other case documents. Forensic evaluators may employ structured diagnostic interviews regarding general psychological disorders, such as the Structured Clinical Interview for DSM-5 Disorders, Clinician Version (SCID-5-CV),9 which was scheduled for release in June of 2015, or the previous version based on DSM-IV criteria in the SCID-CV. For a diagnosis of PTSD, companion structured diagnostic procedure, the Clinician-Administered PTSD Scale (CAPS),10 or the Clinician-Administered PTSD Scale for DSM-5 (CAPS-5)11 is recommended. In addition to structured diagnostic interviews, forensic mental health evaluations typically include general measures of personality and psychopathology, such as the Minnesota Multiphasic Personality Inventory – 2 (MMPI-2),12 or the Personality Assessment Inventory (PAI),13 and symptom-specific measures such as the Beck Depression Inventory-II (BDI-II),14 Beck Anxiety Inventory (BAI),15 and the Trauma Symptom Inventory-2 (TSI-2).16 Measures such as the MMPI-2, PAI and TSI-2 that include validity indices that permit detection of response biases involving symptom exaggeration or mini-
mization as well as checks on the consistency of test responses are preferable. In addition to examining these validity indices, forensic mental health evaluators typically include a dedicated measure of malingering, such as the Structured Inventory of Reported Symptoms-2 (SIRS2),17 Structured Interview of Malingered Symptoms (SIMS),18 or Miller Forensic Assessment Test (M-FAST)19 to detect response biases ranging from symptom exaggeration to outright fabrication. While originally designed to detect feigning of serious psychopathology (e.g. psychoses), recent research has documented their value in detecting fabrication/exaggeration of other mental and emotional disorders, like PTSD.20 21 Other indicators of malingering are also useful to examine.22 23 Lastly, forensic evaluators should include input from nonparty collateral informants who knew the plaintiff before and after the alleged trauma and ideally are an armslength to the parties in the case. If evaluators utilize a methodologically sound approach in light of the above considerations their opinions will likely meet the standards of evidentiary reliability and be admissible under the guidelines set forth in Daubert v. Merrell Dow Pharmaceuticals, Robinson v. de Nemours, and related state and federal rulings.24 25 Causation and preexisting conditions As with all tort matters alleging psychological injuries, the plaintiff must establish a causal link between any symptoms at issue and the defendant’s conduct. An alleged traumatic event can also exacerbate a preexisting psychological condition, and psychological symptoms that predated the trauma from those that arose or were intensified afterward must be disentangled. In the case of preexisting psychological symptoms, given the eggshell psyche doctrine, the forensic evaluator should be attuned to the possibility that some preexisting vulnerability rendered the plaintiff more susceptible to developing psychological symptoms following a trauma than would otherwise be the case. Since one must take the plaintiff “as you thehoustonlawyer.com
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get them,”26 such vulnerability cannot be held against the plaintiff in their case for establishing emotional damages. Forensic evaluators must also determine if historical factors in the plaintiff’s life (e.g. childhood physical/sexual abuse, family history of psychopathology, other traumas) could account for all or part of any alleged trauma symptoms. In addition, concurrent stressors (e.g. divorce, unemployment, or the litigation itself) can also trigger trauma-like emotional symptoms. The
issue is whether and to what extent psychological symptoms would have emerged in the absence of exposure to the index traumatic event. Psychological treatment and mitigation of damages Although case law is not consistent on this point, plaintiffs are usually obliged to take action to mitigate their emotional damages, usually through some form of psychological or psychiatric treatment. PTSD,
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ASD and other trauma-related conditions are treatable, often with excellent results.27 Information from treatment providers is important in two ways: First, a treatment provider may be called upon as a “treating expert” and submit treatment records and/or testify regarding the psychological condition of the plaintiff and response to treatment. Although potential advocacy biases and other threats to the validity of information from treatment providers in forensic contexts must be addressed (c.f. Vincent, Leonard & Holland, 2009) this information may help document the presence or absence of any trauma symptoms, the individual’s response to treatment, prognosis for recovery, and the presence of historical and concurrent stressors unrelated to the current litigation. Second, the quality of mental health treatment is also subject to evaluation, and attention must be paid to whether an evidencebased approach was used and whether the actual treatment provided conforms to the prevailing standard of care. For example, outcome research on evidence-based treatment for trauma symptoms indicate favorable treatment results in an average of thirteen sessions with clients who have experienced severe forms of sexual assault (e.g. rape) assuming that an evidencebased approach such as Prolonged Exposure (PE) Therapy or Cognitive Processing Therapy (CPT) is employed, as participation in supportive psychotherapy alone is generally not sufficient to achieve favorable treatment results.28 *Portions of a companion article (Vincent, Stewart, Inman, & Eagle, 2013) were reproduced by permission of the editors of the Texas Psychologist. John P. Vincent, Ph.D., ABPP is Professor and Director of Forensic Psychology Services at the University of Houston. He can be reached at (713) 743-8503 or at jvincent@uh.edu. Tonya Inman, Ph.D. is Research Assistant Professor and Assistant Director of Forensic Psychology Services at the University of Houston. Mary Madison Eagle, M.A. is a Clinical Psychology intern
at NYU Langone Medical Center / Bellevue Hospital Center. Ashley K. Stewart, Ph.D. is a Forensic Psychologist at the Department of Defense. Endnotes 1. Vincent, J.P., Lemond, S.A., & Inman (2008). Evaluating emotional injuries in civil litigation: Not all mental health experts are created equal. The Houston Lawyer. March/April. 2. Vincent, J.P., Stewart, A.K., Inman, T., & Eagle, M.M. (2013). The DSM-5: Implications for forensic assessment of psychological trauma in civil litigation. Texas Psychologist, 65 (5) at 5 – 8. 3. American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders IV, Text Revision. Arlington, VA: American Psychiatric Publishing. 4. American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th Ed.). Arlington, VA: American Psychiatric Publishing. 5. Agaibi, C.E. & Wilson, J.P. (2005). Trauma, PTSD, and resilience: A review of the literature. Trauma Violence Abuse, 6(3), 195-216. 6. Friedman, M. J., Resick, P.A., Bryant, R.A. & Brewin, C. R. (2011). Considering PTSD for DSM-5. Depression and Anxiety, 28. 9: 750-769. 7. Wilson, J.P. (2004). PTSD and complex PTSD. In J.P. Wilson and T.M Keane, (Eds). Assessing Psychological Trauma and PTSD, 1 – 43. New York: Guilford. 8. US Department of Veterans Affairs (2013). DSM-5 diagnostic criteria for PTSD released. Retrieved from www. ptsd.va.gov/professional/pages/diagnostic_criteria_ dsm-5.asp. 9. First, M.B., Williams, J. B. W., & Spitzer, R. L. (2015). Structured Clinical Interview for DSM-5 Disorders (SCID-5-CV), Clinician Version. Arlington, VA: American Psychiatric Publishing. 10. Weathers F.W., Keane T.M., Davidson J.R.T. (2001) Clinician-Administered PTSD scale: A review of the first ten years of research. Depression and Anxiety. (13):132–156 11. Weathers, F.W., Blake, D.D., Schnurr, P.P., Kaloupek, D.G., Marx, B.P., & Keane, T.M. (2013). The ClinicianAdministered PTSD Scale for DSM-5 (CAPS-5). Interview available from the National Center for PTSD at www. ptsd.va.gov. 12. Butcher, J. N., Dahlstrom, W. G., Graham, J. R., Tellegen, A, & Kaemmer, B. (1989). The Minnesota Multiphasic Personality Inventory-2 (MMPI-2): Manual for administration and scoring. Minneapolis, MN: University of Minnesota Press. 13. Morey, L.C. (1991). Personality Assessment Inventory, Professional Manual. Lutz, FL: Psychological Assessment Resources, Inc. 14. Beck, A.T., Steer, R.A., & Brown, G.K. (1996). Manual for the Beck Depression Inventory-II. San Antonio, TX: Psychological Corporation. 15. Beck, A.T., & Steer, R.A. (1993). Beck Anxiety Inventory Manual. San Antonio, TX: Psychological Corporation. 16. Briere, J. (2011). Trauma Symptom Inventory-2 professional manual. Lutz, FL: Psychological Assessment Resources, Inc. 17. Rogers, R., Sewell, K. W., & Gillard, N. D. (2010). Structured Interview of Reported Symptoms (SIRS), 2nd Edition, professional manual. Lutz, FL: Psychological Assessment Resources, Inc. 18. Widows, M. R., & Smith, G. P. (2005). Structured Inventory of Malingered Symptomatology professional manual. Odessa, FL: Psychological Assessment Resources, Inc. 19. Miller, H. A. (2001). Manual for the Miller Forensic Assessment of Symptoms Test (M-FAST). Odessa, FL: Psychological Assessment Resources, Inc. 20. Christiansen, A. K. & Vincent, J. P. (2012). Assessment of litigation context, suggestion, and malingering among
simulated personal injury litigants. Journal of Forensic Psychology Practice, 12(3), 238-258. 21. Rogers, R., Payne, J. W., Berry, D. R., & Granacher, R. J. (2009). Use of the SIRS in compensation cases: An examination of its validity and generalizability. Law And Human Behavior, 33(3), 213-224. doi:10.1007/s10979-0089145-9. 22. Wilson, J. P., & Moran, T. A. (2004). Forensic/Clinical Assessment of Psychological Trauma and PTSD in Legal Settings. In J. P. Wilson, T. M. Keane (Eds.), Assessing psychological trauma and PTSD (2nd ed.), 603-636. New York, NY, US: Guilford Press. 23. Resnick, P.J. (1995). Guidelines for the evaluation of malingering in posttraumatic stress disorder. In R.I. Simon (Ed.), Posttraumatic stress disorder in litigation: Guidelines for forensic assessment, 117-134. Washington, D.C.: American Psychiatric Press.
24. Daubert v. Merrell Dow Pharmaceuticals, 509, U.S., 579 (1993). 25. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.S. 549, 556 (Tex. 1995). 26. Calandrillo, S. (2006). An economic analysis of the eggshell plaintiff rule. American Law & Economics Association Papers, 39, at 1–24. 27. Ponniak, K, & Hollon, S.D. (2009). Empirically supported psychological treatments for adult acute stress disorder and posttraumatic stress disorder: a review. Depression and Anxiety; 26(12): 1086-1109. 28. Resick, P.A., Nishith, P., Weaver, T. L., Astin, M.C., & Feuer, C.A. (2002). A comparison of cognitiveprocessing therapy with prolonged exposure and a waiting condition for the treatment of chronic posttraumatic stress disorder in female rape victims. Journal of Consulting and Clinical Psychology, Vol. 70(4), 867-879.
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By Joseph D. Lawson
The Harris County Law Library Celebrates a Century of Service James A. Baker
Thomas H. Ball
O
James Autry
n October 1, 1915, the Harris County Law Library formally opened its doors, marking the beginning of a century of service to the local legal community. It also marked the end of decades of effort by local attorneys and judges to build a library suitable to support the work of a growing bench and bar. In the ensuing 100 years, the Law Library has continually expanded its services, offered
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new technology, and opened its doors to an ever-growing number of patrons. As we approach the end of this first century of service, it is important to look back at the last hundred years and plan for the expansion of services well into the next century. Laying the Groundwork The prelude to the Law Library’s establishment began in 1870 and coincides closely with the formation of the Houston Bar Association. In testament to this fact, an iron plaque stands outside the 1910 Courthouse facing Fannin Street in downtown Houston. It notes, “The earliest evidence of organization among the city’s attorneys dates to 1870, when the original Houston Bar Association was formed. Judge Peter W. Gray was elected president of the Association, whose objectives were to raise the standards of the legal profession and to purchase a law library.” As the association grew, the creation of a law library remained an organizational goal.1 Serious efforts toward organization did not take shape until 1913. On March 6 of that year, seven prominent members of the local bench and bar—James A. Baker, Thomas H. Ball, Judge Charles E. Ashe, John C. Williams, R.W. Franklin, James A. Breeding, and Lewis R. Bryan—incorporated the Lawyers Library Association (“LLA”) for the purpose of creating the Law Library.2 Following the model established throughout the nineteenth century in major cities, including Philadelphia, Boston, and Los Angeles,3 the LLA issued stock to build the initial capital needed for books and furniture, and then charged shareholders membership dues for contin-
ued use. Fundraising required a significant amount of time and the organization finished the year with no books and no space to house a library. The next year would prove more productive for the LLA board. On February 10, 1914, the LLA held its first recorded meeting with Judge Ashe serving as its first president. By March, the board made its first purchase of books, which included Texas and U.S. Supreme Court reporters, Texas statutes, and other primary source materials. The board paid $2,460 for the initial purchase—the equivalent of more than $58,000 today. By the first annual meeting held on April 10, 1915, the LLA had received permission from the Harris County Commissioners Court to use space on the fifth floor of the recentlybuilt Harris County Courthouse.4 By its September meeting, the board was sufficiently confident in the collection and furnishings to set a formal opening date for the Law Library of October 1, 1915.5 Early Expansion From its start, the Law Library’s audience began to grow. Before the formal opening, use of the Law Library was limited to dues-paying members. As a promotional effort, the board voted to invite “all white practicing attorneys of the Harris County Bar, not members of the Association, ...to enjoy all the privileges of the Library without charge during the month of October 1915.”6 Although constrained, the invitation was the first of many openings that would lead to all legal researchers being welcomed. By 1916, use of the collection was extended to all county judges and
court officers in exchange for a monthly fee of $100 from Harris County. The same privilege was extended to local law students after South Texas College of Law was established in 1923, and the Law Library remained the students’ primary source of legal materials for several years as the law school built a collection of its own.7 As its audience grew, the Law Library expanded its holdings and services. Much of the collection’s early growth can be credited to Judge James L. Autry. A donation and a bequest totaling $15,000 – more than $225,000 today – from Judge Autry allowed the early collection to grow from limited primary source materials into a working law library. The only request Judge Autry made was “that the library should ‘always be open to the free use of struggling young lawyers.’”8 The impact of this generosity can still be seen on many of the historic materials that bear a label with Judge Autry’s name. In addition to materials purchased with donated funds, many early shareholders of the LLA donated materials in lieu of cash payment for their stock. Through the diligent efforts of LLA board members, including Francis W. Nisbet, who served as secretary and was hired as the first librarian in 1915, the early Law Library grew quickly in service to its patrons.9 The Premier Law Library in the Southwestern United States In 1941, the Law Library transitioned from a private association to a public institution. The Harris County Commissioners Court, under the authority of a newly amended statute, approved a law library
filing fee and, in 1943, placed the Law Library under the control of the Houston Bar Association’s Law Library Committee.10 Long-time committee chair, William Kemper, expanded the collection to include more Texas practice materials,11 case reporters and statute books for jurisdictions throughout the country, and an extensive selection of topical treatises. New technologies were added in the late 1940s, including a telephone, Dictaphone, and Soundscriber. By the early 1950s, the collection expanded internationally with the addition of English and Canadian materials. As the materials became more complex, the need for specialized research assistance became apparent and, in 1951, the Committee hired Eugene Chambers— later, Judge Eugene Chambers of the 215th District Court—to direct operations, in part due to his legal background.12 At that time, Mr. Nisbet was “advanced in status to Librarian Emeritus.”13 In a little over a decade, the Law Library grew into one of the best county law libraries in the country and “the finest south of St. Louis.”14 Toward Service to All Under the law concerning Texas county law libraries, attorneys, judges, and litigants have been permitted to use the books and materials since the Law Library became a public institution.15 Nevertheless, for many years, African-American attorneys who entered the Law Library remained subject to segregation, which was prevalent in public buildings in downtown Houston well into the 1960s. In 1951, Robert W. Hainsworth, a graduate of Howard University School of Law and a practicing thehoustonlawyer.com
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attorney, filed a lawsuit to challenge such practices. At the time, African-American attorneys were permitted to use the Law Library and its resources, but were required to sit at a single table designated by a sign with a single word—“Colored.”16 At the trial court level, Mr. Hainsworth’s request for a writ of mandamus was denied. On February 18, 1954, the Court of Appeals in Galveston affirmed, citing Plessy v. Ferguson to support its holding that no constitutional right was infringed. On May 12, 1954, the Supreme Court of Texas refused Mr. Hainsworth’s application on the basis that it found no reversible error.17 Five days later, the U.S. Supreme Court issued its opinion in Brown v. Board of Education, overturning Plessy.18 Mr. Hainsworth forged ahead taking his appeal to the same high court that had just declared “the doctrine of ‘separate but equal’” to be “inherently unequal.”19 However, he experienced a different—and disappointing—result when, on November 8, 1954, the Court denied his petition for certiorari.20 Although faced
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Library. A new library director, with injustice, Mr. Hainsworth continJohn R. Eichstadt, oversaw the addition ued his work toward equality. In 1955, he of electronic research shortly after suchelped found the Houston Lawyers Asceeding Judge sociation along Chambers to with several the post. Howother attorneys ever, the realiwho worked to ties of electronend segregaic legal research tion, including in the 1980s, Matthew W. including limitPlummer, who ed content and led the litigahigh cost, kept tion to desegreprint materigate the Harris als in demand. County CrimiAs a result, Mr. nal Courthouse Late 70s Westlaw computer terminal. 21 Eichstadt relocated the entire collection cafeteria. Thanks to the leadership and when the Law Library moved from its continued efforts of Mr. Hainsworth and small quarters in the 1910 Courthouse to his contemporaries, the Law Library is the 17th floor of Congress Plaza in 1986.23 now open and available to all. Entering the Digital Age Between the 1950s and 1980s, the Law Library continually expanded its collection to better serve its patrons, but a revolutionary legal research technology was on the horizon. Beginning in the early 1970s, Lexis and Westlaw put the law online. Through the late 1970s and early 1980s, Westlaw underwent several improvements, including upgrades to its proprietary computer terminals that enhanced the monochromatic graphics and streamlined its modem connection.22 By 1986, Westlaw was sufficiently popular among local attorneys to warrant a terminal in the Law
A Public Service Although the Law Library has long been available to non-lawyers, use by litigants and members of the public lagged until a general increase in pro se litigation began nationwide in the mid-1980s. Just as in the early 1900s, the Law Library expanded its services in response to new usage patterns and today remains committed to serving “the legal information needs of self-represented litigants, legal professionals, the judiciary, and county and other governmental officials.”24 For the public, this means self-help resources are available. Additionally, the public can find information about community resources, such as clinics from the HBA’s Houston Volunteer Lawyers and referral services from Houston Lawyer Referral Service, for litigants who need the advice of an attorney. The Law Library also remains committed to serving its original patrons—the lawyers and judges of Harris County. With continuing legal education (“CLE”) programs and free WestlawNext access, it is a great place near the courthouses for lawyers to get some work done. By working to serve each group, the Law Library ensures that it continues to meet its statutory mission, even as needs have changed in the last 100 years.
Today’s Law Library The Law Library of today is the culmination of a century of service. In 2012 and 2013, it became a part of the Office of Vince Ryan, Harris County Attorney, and a new director, Mariann Sears, oversaw the library’s relocation to the first floor of Congress Plaza, 1019 Congress Street. The move improved accessibility for all patrons and usage has doubled in the last two years. With more than 30,000 volumes in print, it remains the lawyers’ law library originally envisioned in 1915. The addition of 25 research computers and a variety of digital resources builds on progress made in the 1980s and provides patrons with more access to legal information than the founders could have imagined a century ago. Under Ms. Sears’ leadership, electronic holdings have expanded to include Matthew Bender treatises (e.g. Dorsaneo’s), Lexis. com, State Bar of Texas practice manuals, and many more. She has also moved the Law Library to the cutting-end of legal research technology by making WestlawNext public access available and by partnering with HeinOnline to make the company’s database available on patrons’ laptops when connected to library Wi-Fi. Even as the format of the resources changes, Judge Autry’s request is still honored and all materials are “open to the free use of struggling young lawyers”25 as well as all patrons the library now serves. The newest services involve a leap onto the Internet. In October 2014, the Law Library launched www.harriscountylawlibrary.org, a user-friendly website that takes library services beyond its four walls in downtown Houston. A searchable catalog and topical research guides allow attorneys to peruse titles from the office or a smartphone. Research links bring the best, free online research tools together in one convenient place, so research can be accomplished on-the-go. The recent addition of a Training and CLE Opportunities Calendar makes it easy to find free webinars and local CLEs—including the Law Library’s free
CLEs. All website content is free and the support of a professional library staff is just a phone call away. The Law Library
to provide quality service to attorneys, judges, and litigants well beyond its first century. Building on one of the founding purposes of the HBA and the efforts of so many prominent association members through the years, the Law Library continually supports the legal research needs of its patrons. We encourage all attorneys throughout the Houston area to visit the Law Library and the website to see the many ways we can be of service. Joseph D. Lawson is the Deputy Director of the Harris County Law Library.
also uses social media to connect patrons with the best available resources through its LinkedIn and Facebook pages. As this century of service draws to a close, follow the website and social media pages for event announcements and new content related to the Law Library’s Centennial Celebration. A Second Century of Service Looking ahead, the Law Library is poised
Endnotes 1. Eric L. Fredrickson, A Commitment to Public Service: The History of the Houston Bar Association 33 (1992). 2. F.W. Nisbet, The Harris County Law Library, Hous. B. J., Dec. 1930, at 9. 3. Lauren Adams & Regina Smith, The Evolution of Public Law Libraries, 10 AALL Spectrum 16 (March 2006). 4. Today, the original fifth floor of the 1910 Courthouse is the sixth floor, which houses an exhibit about the courthouse’s early history, including the opening of the Law Library. 5. See, Minutes of the LLA Board Meetings (Feb. 10, 1914 – Sept. 21, 1915) (copies on file with the Harris County Archives). 6. Id.
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7. History of South Texas College of Law, www.stcl.edu/ welcome/history_South_TX.htm (last visited March 13, 2015). 8. Fredrickson, supra note 1, at 34. 9. Christopher Anglim, Development of Law Librarianship in the Houston-Galveston Area, HALL Newsletter, March/April 1996, at 1, 11. 10. Harris County Law Library, Catalogue of the Harris County Law Library 3-4 (1949). 11. Harris County Law Library Committee, Hous. Bar Bull., May 1951, at 2. 12. The Law Library, Hous. Bar. Bull., Oct. 1956, at 8. 13. Association Activities, Hous. Bar. Bull, Nov. 1951, at 3. 14. A Law Library Index, Hous. Bar Bull., Dec. 1949, at 3. 15. Act of May 6, 1941, 47th Leg., R.S., ch. 317, §1, 1941 Tex. Sess. Law Serv. 521 (West). 16. Hainsworth v. Harris County Com’rs Court, 265 S.W.2d 217 (Tex. Civ. App. – Galveston 1954, writ ref’d n.r.e.). 17. Hainsworth v. Harris County Com’rs Court, 269 S.W.2d 332 (Tex. 1954). 18. Brown v. Board of Ed., 347 U.S. 483 (1954). 19. Id. at 495. 20. Hainsworth v. Harris County Com’rs Court, 348 U.S. 874 (1954). 21. Houston Lawyers Association, History, http://houstonlawyersassociation.org/about/history/ (last visited March 3, 2015). For a thorough history of the fight to end cafeteria segregation, see Judge Mark Davidson, Coffee 5¢, Cheeseburger 25¢, Human Dignity… Priceless. The Desegregation of the Harris County Courthouse Cafeteria, 48 Aug. Hous. Law. 10 (2010). 22. Deborah E. Shrager, Saying Farewell to a Classic: Goodbye to Westlaw.com, AALL Spectrum, Dec. 2014, at 27, 28. 23. Jeannine M. E. Klein, County Law Librarian Preparing to Move 80,000 Volumes, Houston Downtown Magazine at 13 (June 9, 1986). 24. Harris County Law Library, Mission Statement, available at www.harriscountylawlibrary.org/about/ 25. Fredrickson, supra note 1, at 34.
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Equal Access Champions
The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has agreed to handle one pro bono case through the HBA’s Houston Volunteer Lawyers for every five attorneys in the firm, for a commitment period of five years. For more information contact Kay Sim at (713) 759-1133.
LargeChampions Firm Champions Large Firm Andrews KurthAndrews LLP Kurth LLP Baker Botts L.L.P. Baker Botts L.L.P. & Giuliani LLP Bracewell &Bracewell Giuliani LLP Locke Lord LLPLocke Lord LLP Rose Norton RoseNorton Fulbright USFulbright LLP Vinson Vinson & Elkins LLP & Elkins LLP
CorporateCorporate Champions Champions
BakerIncorporated Hughes Incorporated Baker Hughes BP America Inc.BP America Inc. CenterPointCenterPoint Energy, Inc.Energy, Inc. ConocoPhillips ConocoPhillips, Inc. Mobil Corporation Exxon MobilExxon Corporation Halliburton Halliburton LyondellBasell LyondellBasell Marathon OilMarathon CompanyOil Company Shell Oil Company Shell Oil Company
Mid-Size Firm Champions Mid-Size Firm Champions
Baker &Hauer Hostetler LLPLLP Akin Gump Strauss & Feld Haynes and Boone, L.L.P. BakerHostetler LLP King & Spalding LLP Beck | Redden LLP Porter Hedges L.L.P. LLP Beirne, Maynard & Parsons, Susman Godfrey LLP Burleson LLP Chamberlain, Hrdlicka, White, WilliamsSmall & Aughtry Firm Champions Gardere Sewell LLP AkinWynne Gump Strauss Hauer & Feld LLP Gibbs & BrunsBeck LLP | Redden LLP Beirne, Maynard P.C. & Parsons, L.L.P. Gray Reed & McGraw, Burleson Greenberg Traurig, LLP LLP Chamberlain, Hrdlicka, Haynes and Boone, L.L.P. White, Williams & Aughtry Jackson Walker L.L.P. Jones DayGardere Wynne Sewell LLP Gibbs King & Spalding LLP& Bruns LLP Gray Reed & McGraw, Morgan, Lewis & Bockius LLP P.C. Greenberg Traurig, LLP Porter Hedges LLP Jackson Walker L.L.P. Sidley Austin LLP Jones Day Strasburger & Price, L.L.P. Susman Godfrey LLP
Morgan, Lewis & Bockius Sutherland Asbill & Brennan LLPLLP Sidley Austin LLP Winstead PC & Price, L.L.P. WinstonStrasburger & Strawn LLP
Sutherland Asbill & Brennan LLP
Winstead PC Boutique Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Boutique Firm Champions Blank Rome LLP Nichols, Sorrels, Agosto Abraham, Watkins, Edison, McDowell&&Friend Hetherington LLP Fullenweider Blank WilhiteRome PC LLP • Baker • Wotring LLP Hicks Connelly Thomas LLP Edison, McDowell & Hetherington LLP Hogan Lovells US LLP Fullenweider Wilhite Hughes Watters Askanase LLPPC Hicks L.L.P. Thomas LLP Jenkins & Kamin, Hogan Lovells LLP P.C. Johnson DeLuca KuriskyUS & Gould, Hughes Watters Askanase LLP LeClairRyan Jenkins & Kamin, L.L.P. McGuireWoods LLP Johnson DeLuca KuriskyLongoria & Gould, P.C. Ogden, Gibson, Broocks, McGuireWoods LLP & Hall, L.L.P. Ogden, Gibson, Broocks, Longoria Ogletree, Deakins, Nash, Smoak & Hall, & Stewart P.C. L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. ReedSmith LLP ReedSmith LLP Sutton McAughan Deaver LLP Schwartz, Junell, Greenberg & Oathout, L.L.P Vorys,Sutton Sater, McAughan Seymour and Pease LLP Deaver LLP Weil, Gotshal & Manges LLP Weil, Gotshal & Manges LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson,Wilson, Cribbs Cribbs & Goren, P.C. P.C. & Goren, Yetter Coleman YetterLLP Coleman LLP
Small Firm Champions Individual Champions
Coane & Associates Brian Albrecht Flowers & Frankfort Peter J. Bennett Frye, Steidley, Oaks & Law Office of J. Thomas Black, P.C. Benavidez, Law OfficePLLC of Robbie Gail Charette Funderburk Funderburk Courtois LLP Chaumette, &PLLC Fuqua & Associates, P.C. Coane & Associates Hunton & Williams DamaniLLP Law Firm Katine & Nechman L.L.P. Helene Dang Katten Law Muchin Rosenman Office of Papa LLP M. Dieye KimLy Law Firm PLLC
The Ericksen KoonsFuller, P.C. Law Firm Flowers & Frankfort Kroger | Burrus Frye, Oaks &and Benavidez, PLLC Law Steidley, Office of James Stagg, PLLC Funderburk Funderburk Patel Ervin Dinn PLLC & Courtois LLP Fuqua & Associates, The Law Office of Scardino P.C. & Fazel David Hsu Shortt & Nguyen, P.C. HuntonBissell & Williams LLP Strong Pipkin Law Office of L.L.P. James and Stagg, PLLC & Ledyard, The Jurek LawP.C. Group, PLLC Tindall & England,
Katine & Nechman L.L.P. Katten Muchin Rosenman LLP Individual Champions KimLy Law Firm PLLC Alejandro Macias KoonsFuller, P.C. Angela Solice Kroger | Burrus Brian Albrecht Gregory S. Lindley Clinton Yu Law Office of Maria S. Lowry Damani Law Firm Macias Alejandro Danielle H. Maya Martin R.G. Marasigan Law Offices David Hsu Danielle H. Maya C. Treich TheDiane Law Office of Evangeline Mitchell, PLLC Hasley Scarano L.L.P. Bertrand C. Moser Helene Dang Patel Ervin Dinn PLLC Karla LaFitte LawJ.Office of Brent C. Perry, P.C. Law OfficePilgrim of Bertrand C. Moser Law Office Law Office of BrentE.C.Price Perry, P.C. Robert Law Office Cindi of Cindi L. Robinson L. Robison & Fazel Law OfficeScardino of Gregory S. Lindley Shortt Nguyen,Black, P.C. P.C. Law Office of J.&Thomas Jeff Skarda Law Office of Jeff Skarda Strong Pipkin BissellS.& Lowry Ledyard, L.L.P. Law Office of Maria Thompson, Cousins & Irons, L.L.P. Law Office Coe, of Papa M. Dieye Tindall & England, P.C. Law Office of Peter J. Bennett Torrence Law Office Travis of Robbie Gail Charette C. Treich Martin R.G.Diane Marasigan Law Offices Norma Levine Trusch Pilgrim Law Office Robert E. PriceClinton Yu
The Ericksen Law Firm The Jurek Law Group, PLLC Law Office of Evangeline Mitchell, PLLC The Law Office of Norma Levine Trusch Travis Torrence
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By The Hon. Randy Wilson
Some H Judicial Election Observations
aving been a keen observer of Harris County judicial elections for decades, and four times an active participant, I have made a few observations of the way we elect judges in large metropolitan areas. Some observations are fairly obvious, while others require a bit more analysis.
Observation #1: Voters Are Overwhelmed by the Number of Judicial Candidates Texas has a dizzying array of judges, virtually all of whom are voted upon in partisan elections. Voters select judges of the Supreme Court, Court of Criminal Appeals, Courts of Appeals, District Courts, County Courts, and Justices of the Peace, among others. Indeed, in 2014, there were 73 judicial benches on the ballot in Harris County. However, most rank and file voters would be hard pressed to name more than one or two judges —maybe they remember the judge’s name when they served on jury duty or maybe a judge is a member of their church. Short of that, voters have no idea who they are voting for and are generally lost at sea when standing in the voting booth. Observation #2: Voting Participation Drops Dramatically In Off Years Which Affects Outcomes
While voter participation is never great, off year elections are particularly meager. Harris County has over 4.1 million residents, with just over 2 million registered voters. Yet, in 2014, only one-third of registered voters actually went to the polls. Not surprisingly, voting participation increases dramatically in presidential years. However, judges are on the ballot in both cycles. For example, district judges serve 4 year terms, with roughly half on the ballot in presidential election years and half during gubernatorial years. In Harris County for the last 10 years, judicial Democrats tend to win in Presidential years and Republicans win in off years. As a result, the Harris County civil district judges are split roughly 50/50. 32
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Observation #3: Most Votes Are Cast Prior To Election Day
Early voting and voting by mail have become the norm in modern elections. Indeed, in 2012, roughly two-thirds of all votes were cast prior to Election Day. This has at least two implications. First, the voting season has been extended by two weeks. Thus, television ads and mailers must start earlier than they did in the 80s and 90s. Second, judicial recommendations such as by major newspapers are diluted by passage of time. In the past, major newspapers such as the Houston Chronicle could print its endorsements on the Sunday before Election Day and have a significant impact on the outcome. Today, the Chronicle prints its endorsements at the beginning of early voting. However, by the end of the two week early voting period, those recommendations have long been thrown in the recycling bin. As a result, on line slates and recommendations during the two week early voting season take on increased importance. While the Chronicle repeats those endorsements on Sunday prior to Election Day, two-thirds of the votes have already been cast.
mately two-thirds of all votes are cast straight party.1 Straight party numbers in other major counties are comparable. State-wide numbers show the same trend. In 1998, 48% of all ballots cast in Texas were straight party; by 2004, 56% were straight party.2 This default to straight party voting is due in no small part to the increased polarization of elections. As voters become increasingly polarized, voters default to the straight ticket. Voters also gravitate to straight party voting because of the sheer volume of down ballot races, particularly judicial candidates for whom most voters are rendered clueless as to the merits. Consequently, judges are elected, not on the merits, but rather based on national election trends. Last year, 2014 was a gangbuster year for Republicans nationally and thus all Harris County Republican judges won handily. Conversely, in 2008 President Obama won and virtually all Harris County Democrat candidates won and swept Republican incumbents. The bottom line is that judges are not selected on the merits but rather by national tides beyond their control. Observation #5: Voters Who Don’t Vote Straight Ticket Get Tired and Quit Voting
Observation #4: Straight Party Voting Increasingly Determines Down Ballot Judicial Elections
More and more votes are cast by straight party voting, or, to call on by-gone technology, by “pulling the lever.” This trend is increasing. In the 1990s, less than half of all votes were cast straight party. Now, in the last several election cycles, approxi-
Many voters do not like to vote straight ticket; they view a straight ticket vote as unprincipled and thus attempt to maneuver through the lengthy ballot with dozens upon dozens of judicial races. Ballots are ordered with state Supreme Court on top, followed by Court of Criminal Appeals, Court of Appeals, District Courts, County Courts and then Justice of the Peace Courts. After a while, ballot fatigue sets in and people simply stop voting. The farther down the ballot, the fewer votes are cast. Voters understandably feel they are just mindlessly clicking names in races they know nothing about and simply give up. In 2014, while there were exceptions, generally speaking about 200-300 fewer votes were cast for each race as you moved down the ballot. There were 26 contested district court seats on the ballot in Harris County in 2014. Courts are listed on the ballot by district number; the first court on the ballot in 2014 thehoustonlawyer.com
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was the 55th District Court; the last contested race was the 314th. As this chart shows, the first district court listed on the ballot received over 659,000 votes, whereas only 655,564 votes were cast in the race for the last district court listed on the ballot.
Chronicle endorsement moved the needle slightly. While there were exceptions, Republicans who received the Chronicle endorsement got about 1% to 1.5% more votes than those Republicans who were not endorsed. While this margin did not determine the outcome in 2014, in a close year the newspaper endorsement could make the difference. Similarly, the Houston Bar Association polls its 11,000+ members who then rate each candidate and express preferences. The HBA poll results, while not endorsements, are relied upon by many voters.
Observation #6: Name and Gender Matter Having a peculiar name can have as much as a one percent effect on the outcome. While Felix Frankfurter was one of the greatest justices of the United States Supreme Court in the twentieth century, many Harris County voters Observation #8: would refuse to vote for Extensive Mass him merely because of Advertising Texas has a his name. In 2008, DemoIs Less Effective crats virtually swept the Some judicial candidates dizzying array Harris County judicial opt to pay for mass adraces—I say virtually vertising, e.g., radio, billof judges, because a few lost. The boards, mail outs, etc. common denominator of Others do nothing. Still virtually all of those who lost appears others strike a middle to be nothing more than ground and contribute to whom are voted not having a good ballot generic campaigning such name. as local party GOTV (Get on in elections. Gender also matters. Out the Vote) efforts. In Female judicial candithe end, however, when ...Most rank dates do slightly better you analyze the data, it than male candidates. In doesn’t appear that such and file 2014, Republican judges efforts change the outwon every race, but fecome dramatically. Judges voters would be male candidates received who campaigned extenabout 1% more votes than sively in the general elechard pressed to male candidates. tion appeared to get about the same number of or name more than Observation #7: only slightly more votes Major Endorsements as those who did little or one or two Matter nothing. The Houston Chronicle Of course, there’s a judges. interviews all candidates great deal a judicial canand publishes recomdidate can do to affect the mendations. The Chronicle endorseoutcome of a primary election. However, ments were roughly 50/50 Republican in a general election, the vote will go and Democrat. Since all Republicans with the tide. won all county-wide races by a comfortable margin in 2014, the Chronicle enSo Where Do We Go From Here? dorsements didn’t determine the victor. Texas is only one of a handful of states However, when you look closely at the with partisan elections for all courts. results, there is no question but that the Many have tried to change how we se-
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lect judges. Indeed, in 1988, Chief Justice John Hill quit his post to devote the remainder of his life to reforming the judicial selection system. Nothing happened. Some of the various “reforms” that have been proposed over the years include: • Appointment by the Governor or a judicial commission; • Retention elections, i.e., merely asking the voters whether a sitting judge ought to be retained; • Removal of party labels from judicial candidates; • Removal of judges from straight party voting; and • Indicating which judge is the incumbent on the ballot. There are a number of obstacles of changing judicial elections. Former Texas Supreme Court Chief Justice Tom Phillips famously used to quip that everyone is in favor of changing how we select judges except (a) Republicans; and (b) Democrats. Another obstacle to any change is that rural counties know their judges and want to keep the current system. In major metropolitan areas such as Harris County with 4+ million residents, voters do not know their judges and cannot be expected to know them. If we ever are going to alter how we select or elect judges, one modest proposal would be to restrict any change to counties over 2 million inhabitants. That way, smaller counties can continue to elect their judges in partisan elections, while major counties can select judges on some basis other than having a good name, gender, or national political trends. The Hon. Randy Wilson serves as Judge for the 157th Judicial District Court. Endnotes 1. There was a decline in straight party voting in 2006 because of two substantial independent candidates for governor, Kinky Friedman and Carol Keeton Strayhorn. Otherwise, there’s a virtual straight line increase of straight party voting. 2. Austin Community College Center for Public Policy and Political Studies, Report #1 Studies of Political Statistics: Straight Ticket Voting in Texas, 1998-2006, available at http://www. austincc.edu/cppps/pdfs/straightticket.pdf.
Houston Lawyers Who Made a Difference
The Hon. George Cire and Joe Reynolds
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By The Hon. Mark Davidson
Major as a result of their courage and dediCombat V, which is awarded for sustained any people believe that cation to duty. acts of bravery. there is no branch of the Cire returned from the war American Military and started a highly successwhose history is more ful law firm with brother Marine celebrated than the Joe Jamail. He would become United States Marine Corps. Some the first Judge of the 165th Disof Houston’s most distinguished lawtrict Court, a member of the yers have served in the Marines on First Court of Appeals, and a battlefields from Chateau-Thierry to Federal Judge for the SouthGuadalcanal. None have served with ern District of Texas. Reynolds more valor than two men who served would become a trial lawyer of our country in two wars and had exGeorge Cire, right, walking in Washington D.C. renown and a Regent of Texas ceptional legal careers after their dis- Joe Reynolds This would have ended two illustrious milA&M University. Both left legions of young charge from the military. itary careers had it not been for the Korean lawyers who carry forward their examples Both George Cire and Joe Reynolds enConflict. Both men had graduated from law of integrity, hard work and diligence in listed in the Marines as freshmen in college, school, passed the bar and were beginning representing clients. but were allowed to finish college and atto prosper when they received letters recallHouston Lawyers all strive to make a tend officer’s training school. They were ing them to active duty. Following orders, difference by being always faithful to their both shipped overseas just in time to parthey both reported for duty with less than clients’ needs. Cire and Reynolds were two ticipate in one of the bloodiest battles of two weeks’ notice. In Reynolds’ case, he Houston lawyers, among many, who apWorld War II—the effort to take the island was shipped off to Korea and led a battalion plied the motto of the Marine Corps, Semof Iwo Jima. In a struggle that lasted six of Marines in the Battle of Chosin Reservoir. per Fidlius, to their entire lives. In doing so, weeks, the island was taken, and provided In that battle, a group of 30,000 soldiers they made a difference for their community, a staging area for the Allied attacks on Jawere surrounded by a Chinese Army estitheir nation and the world. pan. More than one-third of the Marines in mated to be between three and five times the battle were killed or wounded. Cire was the size of the United Nations forces. FightThe Hon. Mark Davidson is an MDL awarded two Purple Hearts, a Silver Star judge and judge (retired) of the 11th ing in weather that was as cold as 28 deand a Presidential Citation for Valor for his District Court. His column for The grees below zero, more than 80 percent of efforts. Reynolds took three bullets, but Houston Lawyer focuses on Houston the Americans lived to see their homes and watched from a stretcher on a captured airattorneys who have had significant impact families. Reynolds’s feet received severe field as the American Flag was raised over on the law, the legal profession and those frostbite, swelling to the size of footballs. He Mount Suribachi. He received the Purple served by the law. received the Commendation Ribbon with Heart. Both were promoted to the rank of
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Meet New HBA President Laura Gibson The Houston Lawyer asked 20152016 HBA president Laura Gibson about her family, legal career and goals for the new bar year. THL: Where were you born and where did you grow up? Gibson: I am the rare Native Houstonian you may have heard about. I was born here and have lived here my entire life other than the four years I lived in College Station while I attended Texas A&M University. THL: Tell me about your family. Gibson: I am the middle child. I have an older sister, Diane, and a younger sister, Julie, who passed away in March of 2014. My father, David Gibson, practiced law in Houston until his death in 1990. He was triple Board Certified: Family Law, Civil Trial Law and Criminal Law. My mother, Shirley Gibson, is a retired school teacher. My husband, Bill Ogden, is my partner in law and partner in life. Together, Bill and I have four children: Wes, a Marine Captain, currently stationed at the Naval Air Station Pensacola; Sheila, a former teacher with KIPP Courage College Prep at Landrum Middle School, who is deciding on her next career; Kelly, a nurse and research assistant at Methodist Hospital; and Christine, a rising third-year student at the Texas A&M School of Veterinarian Medicine & Biomedical Sciences. THL: Where did you go to college and law school?
r children,
ill with thei
Laura and B
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Laura enjoys growing he irloom tomat shares with her husban d, Bill Ogde oes at the farm in Wined n. ale she college
Gibson: I attended at Texas A&M University in College Station (Class of ’82) and law school at the University of Houston Law Center, graduating in December 1984.
THL: How did you become interested in law as a career? Gibson: At the age of two my parents nicknamed me “judge.” As long as I can remember, I wanted to be a lawyer. I recall my father taking me and my sisters to watch him argue in court. I was very impressed by the courtroom setting and the impact my father and the other lawyers made through their advocacy. I didn’t have women attorney role models and thought that a woman could be a court reporter but not a lawyer. My father never encouraged me to be a lawyer. Unbeknownst to me, my mother, who wanted me to make any decision to become a lawyer independently, insisted that my father not encourage me to follow in his footsteps. In college, when I sought his input about my going to law school, he was very encouraging. After graduating from college, my father gave me a job at his firm which enabled me to put myself through law school. THL: What are your areas of specialty and with what firms have you worked in your legal career? Gibson: I am a commercial trial lawyer, Board Certified in Labor & Employment Law. I began my career in 1985 at the firm now known as Locke Lord Edwards, LLP; made partner there in January of 1991; and left in March of 1993 to open my own firm with three other Locke Lord lawyers, where I continue to practice. My firm is Ogden, Gibson, Broocks, Longoria & Hall, L.L.P.
Kelly.
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THL: Who were your mentors? Gibson: I have had many mentors over the years, most of whom do not realize
that I learned from observing them. My father taught me that a lawyer’s word is her bond, that her job is to represent her clients to the best of her ability to make sure that justice is done. From Walter Zivley, a patriarch at Locke Lord which was then known as Liddell, Sapp, Zivley, Hill & LaBoon, I learned that nice guys can finish first and what true friendship is. From Barbara Gray, the first female partner in Locke Lord’s Houston office, I learned that it was possible to juggle an active law practice with motherhood, and to do so with grace and laughter. Lynne Liberato, Travis Sales, Barrett Reasoner and Denise Scofield have all been role models for me in bar service. In addition to being four of the nicest people I know, they have servant hearts. As I am celebrating my 30th year of practicing law, I find that I am also learning from the younger lawyers with whom I interact. Lauren Waddell inspires me with her enthusiasm and warmth. Michelle Gray reminds me what a privilege it is to be a lawyer and the importance of hard work, and my protégé, Michael Ryan, soon to be a new associate at Gardere Wynne Sewell, LLP, has taught me that serving as a mentor is at least as beneficial to the mentor as it is to the protégé. And they say “You can’t teach an old dog new tricks!” Our Houston community is blessed to have so many outstanding lawyers. I know that I will continue to learn from the talented colleagues I encounter in the future. THL: How did you get interested in volunteering with the bar? Gibson: In 1993, after leaving a firm of almost 300 lawyers and going to work at a firm with a total of four lawyers, I missed engaging and interacting with other lawyers. With encouragement from my partner, Linda Broocks, we joined the Minority Opportunities in the Legal Profession Committee. The chance to do the
great work of that committee and get to know so many exceptional lawyers had me hooked on bar service. As my partners will tell you, after that, I became a regular volunteer for the Houston Bar Association. In addition to committee work, I got involved in the Labor & Employment Section where I had the opportunity to chair the Section in 2006-2007. The same year, Randy Sorrels, then president of the Houston Bar Association, encouraged people to run for the HBA Board in one of his presidential columns. I ran for and was elected to the Board in 2006. THL: What do you think is the role of the organized bar in society today? Gibson: In my view, as a voluntary bar, the Houston Bar Association should focus its efforts on serving its members. I believe that the HBA already has in place the structure necessary to meet the needs of our community. There are significant challenges that lawyers face in the current market which make it even more critical that the HBA increase the services it provides to its members. During David Chaumette’s and Carter Crow’s terms as president, the HBA conducted Focus Groups of members and nonmembers to find out what the HBA could do to better serve its existing members and to become more attractive to new members. What we learned is that the HBA is already doing a great job in providing services to its members but that because people are so busy and are inundated with information, standing out from the crowd and promoting the benefits HBA membership offers is a challenge. Last year, under Carter’s leadership, the HBA added 35 hours of free CLE which are available to members online. This year, we will continue to add CLE content which will be available to our members free of charge. THL: What do you see as the role of the president in the Houston Bar Association? Gibson: I believe my role as this year’s president of the HBA has several dimensions. I believe that I have the duty to serve as the spokesperson for the HBA. I also have undertaken the responsibility to think about the challenges that lawyers in 2015 face and to give consideration to what the HBA can do to support our members. As president, I also have the privilege and duty to add to the incredible legacy of projects and service provided by the HBA. THL: What areas will you focus on during your administration? Gibson: We will work to renovate the Mentorship Program and will launch it in January 2016. We will also work to capitalize on the tremendous value our Sections offer to our
members. We had a Section Breakfast in June where we brainstormed on what our Sections are currently doing to provide member benefits and what they can do to increase that value. wyers at an HBA La As practicing lawia Hancock in rg Vi d an Amy Dinn yers, we are conVan Holten, eers Karen t. nt lu vo ith stantly inundated Even Laura w te Cleanup Against Was with organizations schools each year. who want our time Another initiative for the upcoming bar year and our money. The HBA is worthy of both is a community collaboration between the HBA, our time and our money. It is a tremendous the law firm of Baker Botts, which is celebratvalue. Our most expensive membership level is ing its 175 year anniversary, the Houston Grand for attorneys practicing ten or more years. That Opera and Communities In Schools. This is only membership costs only $220 per year. That is fitting as Peter Gray, a founder of the HBA and only 60 cents a day, just a fraction of the cost of its first president in 1870, was also a founder of your daily cup of coffee. The most costly SecBaker Botts. In addition to being a lawyer, Mr. tion membership is only $45 per year, again, Gray was the owner of one of the first music just pennies a day. The HBA Board is working halls in Houston known as Gray’s Opera House. with Section leadership on establishing a Best In celebration of its anniversary, Baker Botts Practices Manual to share the techniques our has commissioned the Houston Grand OpSections have been implementing to provide era to write an opera telling the story of Peter even greater value to its members. Gray’s representation of a freed slave known I am excited about a new committee that we as Emeline. The opera will be performed a toare establishing this year called Teach Texas. tal of ten times. The first performance will be This committee is a partnership between the in May 2016 at the 1910 Courthouse as part HBA and the Texas Supreme Court Historical of the service raiser for the Houston Volunteer Society. The Society has funded the publicaLawyers and will serve as encouragement to tion of a book geared towards seventh grade lawyers regarding the importance of pro bono students called: “Taming Texas: How Law and representation. The subsequent performances Order Came to the Lone Star State” written by will be to Houston high school students and will James L. Haley. It is believed to be the first civil share the story of how one person made a difjustice book written in the country. The book ference in the lives of so many in securing the will supplement seventh grade social studies freedom of Emeline and her children. class course materials. The committee will Finally, we will be raising $675,000 through pair judges and lawyers who will present in the the Harvest Celebration which is truly a party classroom. We hope to do a pilot with a purpose since 80 percent of the funds Continued on page 49 of the program this fall and will begin the full work of the Teach Texas Program in the spring of 2016. We are working in conjunction with Jan Miller, who is in charge of the State Bar Law Related Education Department, to develop supplemental materials to be used by our teaching teams. Teach Texas will be an ongoing committee. The Society has already identified ten additional books that it is in the proLaura and Bi ll with friend s from Turkey cess of funding. We hope , Nabi, far le ft, and Leyla that Teach Texas will teach a new book in our Cerit. thehoustonlawyer.com
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Laura Gibson Takes Office As HBA President
aura Gibson of Ogden, Gibson, Broocks, Longoria & Hall, LLP took office as the 2015-2016 president of the Houston Bar Association at the organization’s Annual Dinner Meeting on May 21 at River Oaks Country Club. She succeeded M. Carter Crow of Norton Rose Fulbright US LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Crow presented the President’s Awards to outstanding committee and program chairs for 2014-2015, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar year. Photos by Temple Webber and Fred Provada
ura Gibson.
es the gavel to La
Carter Crow pass
Carter and M Gibson and eredith Crow, HBA Aux her husband, ili Bill Ogden. ary President Wendy D awson, La
ura
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50-Year Lawyers
50-year member Madison Jones and his wife, Millie Jones
50-year member Marc Grossberg
50-year member John Graml and his wife, Dinah Graml
50-year member Donald Jansen and his wife, Hon. Janice Law
50-year member Charles Crocker and his wife, Mary Ann Crocker
50-year member Paul Loman and his wife, Pat Loman
50-year member Kenneth McConnico and his wife, Marjorie McConnico
50-year member Van Hendrix and his wife, Evelyn Hendrix
50-year member Hon. Robert Hinojosa
50-year member Charles Giraud III and his wife, Pamela Giraud thehoustonlawyer.com
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50-Year Lawyers
50-year member Neal Cannon and his wife, Linda Cannon
50-year member Don West Graul and his guest, JoAnn Vincent
50-year member Jonathan Day
50-year member Earle S. Lilly and his guest, Caty Cagle 40
July/August 2015
50-year member Milton Havlick, Jr. and his wife, Sibley Kopmeier Havlick
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50-year member David Beck and his wife, Judy Beck
50-year member Raymond Stauffacher and his wife, Lynn Stauffacher
50-year member Hon. Philip Warner and his guest, Mary Jane Zummo
50-year member Carroll Shaddock and his wife, Dorry Shaddock
50-year member Carter Christie and his wife, Helen Joyner Christie
President’s Awards Carter Crow presented the 2014-2015 President’s Awards to outstanding committee chairs during the HBA’s Annual Meeting.
Alistair Dawson, Susan Oehl and Eric Pardue were honored as co-chairs of the John J. Eikenburg Law Week Fun Run Committee.
Rick Burleson was honored as the chair of the Habitat Committee.
[L to R] John D. Ellis, Jr.; Otway B. Denny, Jr.; and the Hon. David O. Fraga were honored for outstanding, long-time service on the HBA Board of Directors.
Carl Wilson, Kristin Pearson, Mitch Reid, Andrea Fair, Louie Layrisson and Alan Alexander were honored as co-chairs of the LegalLine Committee. Benny Agosto, Jr. and Laura Tolley were honored as co-chairs of the Law & the Media Committee.
The Hon. Michael Schneider, chair, and Brian Fischer, program chair, were honored for outstanding work with the HBA Juvenile Law Section. thehoustonlawyer.com
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OFF THE RECORD
GI Ray:
A Guy and His Jeep By Preston D. Hutson
The Houston Lawyer
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stripping the “new” vehicle down, they soon discovered that the hat is the quintessential American automobile? entire rear-end of the CJ-2A was not original. Rather than restore While acknowledging the Model T’s omnipresit, they stripped it of salvageable parts and donated the frame to ence within the American heart, few vehicles a father-son duo who wanted to build their own Jeep from the can claim a higher status in the pantheon of arground up. chetypal American cars than the Jeep. During Ray and his grandfather began looking for another project. World War II, America manufactured Jeeps at an overwhelming Soon they located a 1942 Army Jeep pace of one per 90 seconds; by the in Pearland. In addition, Ray also end of the war, America had propurchased a 1943 Navy Jeep that he duced 700,000 jeeps. Indeed, the found in Copperas Cove. ApparentAmerican Jeep was so ubiquitous, ly, this Navy Jeep had remained in German soldiers are reputed to a garage for over 20 years, unused. have believed that each American Ray is presently in the process of GI received a Jeep as standard isstripping both WWII era Jeeps sue. The Jeep remained the Army’s down to the frame in an effort to restandard general use vehicle until construct them from the ground up. late in the Vietnam War. In rebuilding the Jeeps, Ray uses There may not be a Houstonian vintage parts, with the sole excepwith more passion for the Jeep than tion of the gas tank, in an effort to Houston lawyer Ray Panneton, replicate the originals as closely as who practices medical malpracpossible. tice, medical device, and pharmaRay remains steadfast in his apceutical litigation with the Talaska preciation for the Jeep’s 75-year hisLaw Firm, PLLC. Ray’s interest in tory as America’s original SUV. He Jeeps began in law school, after he agrees with former war corresponscraped together enough money to dent, Ernie Pyle: the Jeep “does evbuy a 2009 model. Ray had some erything. It goes everywhere. It’s as family warn him: once you own faithful as a dog, strong as a mule, a Jeep, you either love it or hate it, there is no in between. He was Ray Panneton with one of the WWII Jeeps he is lovingly restoring and as agile as a goat. It constantly carries twice what it was designed hooked. Soon after, Ray located an with vintage parts. for, and keeps on going.” Ray describes the Jeep as an Ameriold 1995 Jeep that he bought as a fixer-upper to support his love can classic with no disposable parts. Ray notes that the Jeep’s of trail riding and fishing. This first Jeep makeover primarily designers engineered the WWII era Jeep with the everyday GI consisted of stripping it down, coating the underside and frame in mind—working on them requires neither special mechanical to prevent rust, adding a spray in bed liner, and having it painted. knowledge nor specific tools. This first restoration quickly developed into a labor of love So next time you see a guy in a vintage Jeep driving around that he could share with his grandfather, a retired command serHouston, wave and shout, “Hey, GI Ray!” geant major and a veteran of World War II, Korea, and Vietnam. The pair soon located a vintage post WWII era CJ-2A at an army surplus store in Old Town Spring. A civilian Jeep intended as Preston D. Hutson is an officer with LeClairRyan in Houston. His praca farm and ranch vehicle, the CJ-2A shares many of the same tice is dedicated to personal injury and civil litigation. He is a member of features of the Jeep prevalent during WWII. Unfortunately, in The Houston Lawyer editorial board. 42
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A Profile
in pro f e s s io n ali s m
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dressing professionalism, I tell each incoming South Texas College of Law class: First, you must be competent. Work hard every day to prepare yourself to serve your clients to the best of your ability. Your clients deserve no less, and you cannot call yourself a professional unless you are competent and prepared. Second, conduct your practice and your personal affairs with integrity. Remember, you build a positive reputation over many years, but you can destroy it in an instant. Third, practice with civility. It Donald J. Guter Dean, South Texas College of Law is impossible to maintain your professionalism without civility. Finally, practice with courage. Throughout our history, lawyers have been called upon to take up causes that are not always the most popular. When your time comes, answer the call in a way that is true to our profession, preserves the values reflected in our constitution, and serves the cause of justice. Professionalism demands that you do.
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he chief principle of legal professionalism, I believe, is that a lawyer should zealously represent the interests of clients. That principle is balanced by two closely related principles that inform zealous representation: one, that a lawyer should seek the greater good, and two, that a lawyer should always treat clients, authorities, clerks, and adversaries with utmost civility and respect. Adhering to the principle of zealous representation involves listening to and working with a client to identify and understand the client’s interests and desires while at the same time finding Dannye Holley Dean, Thurgood Marshall School of ways to inform the client of the Law, Texas Southern University reasonable expectations of outcomes for the situation presented by the client, as well as the rules of ethics and practice we will follow in our representation. The undertaking is challenging and often creative. With any client, zealous representation is undertaken with
the lawyer’s awareness that compromise and settlement are likely, and sometimes desirable outcomes. The lawyer must be prepared to commit the time and effort required to investigate the people, places, and events involved; to research theories of the case, and to evaluate theories of the representation. Further discussions with the client can then focus on identifying and vetting those likely outcomes which will protect the client’s interests and achieve at least some of the client’s goals. Whether a lawyer’s client is a student, a public or private entity, an individual charged with a crime, or a person seeking redress of a perceived or real wrong, there is almost nothing more satisfying to the lawyer than to achieve a good outcome for the client. And that achievement requires energetic engagement in the client’s zealous representation.
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s ninth Dean of the University of Houston Law Center, I recognized the transformative “Power of Legal Education.” Legal education fundamentally transforms each student into a professional who thinks like a lawyer. Through this learning process, each student learns to write precisely, to analyze rigorously, to advocate persuasively, and to conform to the highest professional standards. Law graduates then take these tools to transform the world by representing individual clients to secure justice and providing the legal architecture of global and national social, political and Leonard M. Baynes Dean, University of Houston Law Center economic movements, e.g., Civil Rights, Women’s Rights, Marriage Equality, Immigration Reform, Tort Reform, Tax Reform and Deregulation. The “Power of Legal Education” also enables students to transform their economic circumstance and advance their social mobility. My parents were born on the 150 square mile island of St. Vincent in the Caribbean Sea. Like so many other immigrants, my parents (who had very limited education) came to the United States to pursue the American Dream. For me and so many others like me, legal education empowered and catapulted me into opportunities that would have been unavailable to me but for my education. This type of social mobility also demonstrates the fundamental and transformative “Power of Legal Education.” It is important for us as legal professionals to recognize how much legal education is a blessing to us and society.
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The Houston Lawyer
Media Reviews
Go Set a Watchman: Reconciling Our Inner Atticus
es in society: without embracing it, we would stagnate. In other words, to have the justice system and the society we
By Harper Lee HarperCollins Publishers July 14, 2015
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Reviewed by Kimberly A. Chojnacki t is a rare lawyer who has not read Harper Lee’s To Kill a Mockingbird. It is an even rarer lawyer who has not admired Mockingbird’s Atticus Finch, the white Southern attorney who represented a young black man falsely accused of raping a white woman. Regardless of one’s profession, many admire Atticus’s honor, integrity, and virtue as an attorney, fighting for the letter of the law regardless of the machinations of the people at the time. As inklings of Lee’s second novel, Go Set a Watchman, came to light, countless were astounded—heartbroken, in fact— to discover that Atticus was involved in perpetuating segregation, battling against the NAACP, and fighting to preserve the Southern “Way of Life.” How could this man, who has stood for all that is honorable in our system of justice, actually be a racist? Setting Mockingbird and Watchman side by side, however, one gets the impression that the improbable dichotomy does in fact exist, and necessarily so. Watchman teaches a valuable lesson about the tension and clash of conscienc-
consider sacrosanct, we are reminded we must respect and give space to those views with which we may disagree. As Atticus put it himself in Mockingbird, “[t]he one thing that doesn’t abide by majority rule is a person’s conscience.” This sentiment remains at the heart of Watchman. In Watchman, Scout returns to Maycomb, Alabama, to find out Atticus no longer is the pillar of virtue she had considered him all her years. Rather, Atticus and Maycomb have replaced this integrity with hatred, racism, and vitriol. Her world, in other words, is shattered. However, in the span of merely three days, Scout comes to understand that while she may vehemently disagree with the views of many in Maycomb, she cannot ignore them, she cannot wish them away, and she cannot try to stamp them to oblivion. No doubt, this is a difficult reality to absorb. How can we abide by the offensive, the inhumane, and the reprehensible we find in those at the core of our hearts? In forcing us to recognize Atticus’s imperfections, Watchman forces us to con-
front the power and value of such contradictions. It compels us to respect that all of us are human, containing within ourselves those same models of virtue we admire so much in Atticus, while at the same time harboring less honorable sentiments. But this needn’t be our undoing and, in fact, very well may be necessary. For if there were a collective conscience—a single watchman for us all—it would be nearly impossible to change course. There would be no need for an Atticus to defend the falsely accused, for guilt may merely be assumed. Watchman teaches us that this adversarial system we call a “Way of Life” (and yes, the practice of law) is how we grow, how we do better, and how we become better. The tension between good and evil is a source of our drive and courage to challenge the status quo. And this is at the heart of what made Atticus so honorable in Mockingbird, and what catapults Scout (with the not-so-gently helping hand of her Uncle Jack) to that position in Watchman. While we may hope each person’s conscience will not abide by hatred and intolerance, there is no guarantee. All we can guarantee is our own. So, as we reflect on our practice—and what drives it—let us set our own watchman, forgetting neither the Atticus as we knew him in Mockingbird, nor the Atticus as we found him in Watchman. Kimberly A. Chojnacki is an associate of Dow Golub Remels & Beverly, LLP and practices commercial litigation. She is a member of The Houston Lawyer editorial board. thehoustonlawyer.com
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LEGAL TRENDS
A Visitor’s Slip and Fall is not a Health Care Liability Claim
court’s decision, citing Texas West Oaks Hospital, L.P. v. Williams 312 S.W.3d 171 (Tex. 2012). Previously, the Court decided in Williams that when a safety standardsbased claim is made against a health care provider, the Texas Medical Liability Act does not require the safety standards to be directly related to the provision of health care in order for the claim to be a health care liability claim. Ross appealed to the Texas Supreme Court. Before the Court, the hospital advanced two primary arguments to support the lower court’s ruling that Ross’s claim is a HCLC. First, the hospital argued that any slip and fall incident at its facility is directly related By Farrah Martinez to health care because it encompasses the safety of its patients. Secondly, the hospital n Ross v. St. Luke’s Episcopal Hosp., No. asserted that Ross’s claim falls within the 13-0439, slip op. (Tex. 2015) the Suhealth care purview since preme Court addressed she specifically alleged whether a slip and fall Lezlea Ross, that the hospital breached premises liability claim, standards applicable to a visitor at St. Luke’s by a visitor, constitutes a maintain a safe environhealth care liability claim Episcopal Hospital, ment for its patients. (HCLC). Lezlea Ross, a Ultimately, the Court revisitor at St. Luke’s Episcoslipped and fell as she jected both arguments and pal Hospital, slipped and approached the exit doors concluded that there must fell as she approached the be a substantive nexus beexit doors of the hospital. of the hospital. She was tween the safety standards She was not a patient of the hospital and was there not a patient of the hospital allegedly violated and the provision of health care. only to provide companand was there only to That nexus requires more ionship to a friend. As a than a “but for” relationresult of the fall, Ross sufprovide companionship ship. Ross was a visitor; fered injuries and filed suit she was not a patient and against the hospital under to a friend. As a result received no medical sera premises liability theory. of the fall, Ross suffered vices while on the premThe hospital moved for ise. She was injured only summary judgment, alleginjuries and filed suit as a result of physically ing that Ross’s claim was against the hospital being present on hospital a HCLC under the Texas grounds. Medical Liability Act and under a premises As noted by the Court, her failure to file an expert the lines between a safety report under Chapter 74 of liability theory. standards-based claim the Texas Civil Practice & that is not a HCLC and one that is a HCLC Remedies Code required dismissal by the are often blurred; the Court provided a law. The trial court granted the motion and lengthy list of nonexclusive factors to conRoss appealed. sider when evaluating whether a plaintiff’s The court of appeals affirmed the trial
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claim is related to a defendant’s provision of medical or health care and is therefore an HCLC. In Ross’s case, the Court held that there was “no substantive relationship to the hospital’s providing of health care,” so Ross’s claim was not a HCLC. In light of the Court’s finding, Ross was not required to file an expert report and her case was improperly dismissed. The Court reversed the decision of the court of appeals and remanded the case to the trial court. Farrah Martinez is the owner of Farrah Martinez, PLLC, where she focuses her practice on personal injury and insurance law. She is an associate editor for The Houston Lawyer.
Texas Supreme Court Favors Commercial Property Owners in its Latest Interpretation of CPRC Chapter 95 By Preston Hutson
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ithin the 1995 Tort Reform legislation, the Texas Legislature enacted TEX. CIV. PRAC. & REM.
LEGAL TRENDS
CODE § 95.001 et seq., limiting the liability of commercial property owners for injuries suffered by independent contractor employees working to construct or repair improvements upon the owner’s property. At common law, the duty of commercial property owners was indistinguishable from the duty of general contractors, i.e. both must ensure the safety of third party employees if they either exercised or retained control over the means and methods by which the contractor performed its work. Chapter 95 established a new standard for commercial property owners; a property owner owes no duty to protect contractor employees unless that owner either retained or exercised control over the work and had actual knowledge of the danger or condition causing the personal injury or death [See TEX. CIV. PRAC. & REM. CODE § 95.003]. Since its enactment, Texas courts have struggled to ascertain Chapter 95’s breadth. One such struggle involved whether Chapter 95 only limited the property owner’s potential liability for hazardous premises conditions or whether it also covered claims arising from the property owner’s own negligent activities. Abutahoun v. Dow Chemical Co., 58 Tex. Sup Ct. J. 879 (2015) involved a contract employee who died after contracting mesothelioma from exposure to asbestos. While admitting that Chapter 95 limited Dow’s potential liability for asbestos exposure directly related to the decedent’s own work with asbestos, the decedent’s family argued that Chapter 95 did not limit Dow’s liability for exposures arising from the work of Dow employees, who worked alongside the deceased, “installing, sawing, and removing asbestos insulation.” Dow moved for summary judgment, arguing that Chapter 95 served as the exclusive remedy for all claims of negligence against the property owner, whether based upon premises liability or negligent activity. After a hearing in the MDL pretrial court, Judge Mark Davidson granted Dow’s
summary judgment in part, ruling that Chapter 95 precluded those claims against Dow that arose out of the decedent’s own work with asbestos-containing products. But Judge Davidson denied Dow’s motion with respect to decedent’s claims that he was injured by virtue of Dow’s own work activity. At the subsequent trial, the jury found Dow 30% responsible for decedent’s injuries and the trial court rendered judgment against Dow for $2.64 million plus interest and court costs. On appeal, Dow reasserted its argument that Chapter 95 does not distinguish between a property owner’s liability for exposure caused by the activities of contractors and its liability for exposure caused by the owner’s own work activity. Dow further argued that decedent’s family failed to establish that Dow both had control over decedent’s work and had actual knowledge of the dangers of asbestos exposure. Conversely, decedent’s family argued that Dow could not avail itself of Chapter 95’s limitations because their claims were based solely upon Dow’s negligent activity. According to them, the Legislature intended § 95.002 to apply only in the limited instances in which the property owner manifests control over the contractor’s work. Agreeing with Dow, the Dallas Court of Appeals reversed and rendered. In upholding the Dallas court’s reversal, the Texas Supreme Court stated that the Legislature signaled its intention that Chapter 95 apply to all negligence claims against a property owner, not just certain claims. The Court further “presumed” that the Legislature enacted Chapter 95 with the full understanding of the various types of negligence claims, intending that Chapter 95 apply to them all. The Court further disagreed with the family’s assertion that Chapter 95 operated to abrogate an employee’s right to recover for common law negligence in all instances.
defense litigation involving both commercial property owners and general contractors. He is a member of the editorial board of The Houston Lawyer.
Earn All Your MCLE Hours Online At No Charge! www.hba.org
Preston Hutson is an officer with the firm of LeClair Ryan who specializes in thehoustonlawyer.com
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July/August 2015
Now leasing in The Woodlands two furnished offices, one interior in newly built out suite. Perfect for one or two professionals needing a beautifully decorated suite including a reception area, kitchenette, conference room, copier, phones, HS internet. New office building has ample parking, close to I-45. 936-273-2773. Galleria Area Available for sublease to a sole practitioner, a furnished 240 sq.ft. exterior office (wall of windows). Includes use of a conference room, wifi, phone w/vm, receptionist and limited secretarial assistance. Incentives for a commitment of twelve months or more. Call 713-993-9363. Downtown. Beautiful offices in Bank of America building. 700 Louisiana, 48th floor. Amazing views. Office-sharing with established lawyers. Associate 10’x15’ offices available with secretarial space. Includes receptionist, phone, internet, copiers, postage meter, coffee, etc. Shared reception, conference rooms, kitchen. Visit www. fb4800.com for photos, etc. Call Tyler 713-255-3225. Great office space at 1601 Westheimer at Mandell, minutes from downtown Houston. Rent includes shared access to two conference rooms, kitchens, internet, cable, phones with VM, all utilities, part-time receptionist. Window offices ranging from $400-$1,000 per month with no long-term commitment. For information, please call Mark Kidd at 713-968-4601
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GALLERIA AREA ST. JAMES PLACE Attorney-size office with secretarial work station for sublease - AV rated firm, Class A build out. Possibility for referrals. Please send inquiries to houstongalleria lawfirm@gmail.com HOUSTON/GALLERIA Two medium outside offices are available in an office suite shared with nine experienced and established attorneys. Included in monthly rent are three conference rooms, receptionist, internet access, telephone system. Toshiba color copier scanner, postage machine, fax and a fully stocked kitchen. Covered parking, file storage facilities and secretary/paralegal space are available. Office furniture not included. Call Carolyn at 713-237-0222. Prime Downtown location, 9th floor corner suite, walk to court, adjacent to 3 rail stations. Furnished, receptionist and internet, phone and fax also available. Call Veronica at 713-741-9301. Office space for solo attorney - any practice area. Large corner office on a high floor near the Galleria. Rent includes receptionist (if desired), kitchen, all office machinery, phones, use of large conference room and party room. Please contact Jeri at 713-840-7180.
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Lawyers as Teachers...
Meet New HBA President Laura Gibson from page 8
for teaching, with an opportunity to teach history to the children of our state. Our third initiative for the upcoming bar year will also focus on teaching. Rather than teaching Texas history, we will teach about the importance of pro bono services. In that regard, the HBA will be collaborating with the law firm of Baker Botts, which is celebrating its 175 year anniversary, the Houston Grand Opera and Communities In Schools by developing and sponsoring the performance of an opera based on the work of Peter Gray, the first president of the HBA who served in 1870, as well as a founder of Baker Botts. In May of 1847, at the age of 28, Peter Gray filed a lawsuit on behalf of a freed slave known as Emeline. The lawsuit was captioned “Emeline, a Free Person of Color v. Jessie P. Bolls.” Peter Gray alleged that Emeline was a free woman of color and a citizen of Tennessee and that Mr. Bolls had wrongfully enslaved her in 1847. Mr. Gray put his career and his own money at risk representing Emeline, posting the $200 restraining order bond against Bolls with his own funds. He also used the procedures he drafted as the author of the Practice Act, the precursor to the Rules of Civil Procedure, to his client’s advantage in propounding interrogatories to witnesses in Tennessee and Louisiana and successfully obtained a jury verdict finding that Emeline and her children were free and were to remain free. Baker Botts has graciously agreed to commission the cost of the opera which will be performed in May 2016 in conjunction with Law Day. We will host a performance at the 1910 Courthouse as part of a service raiser for the Houston Volunteer Lawyers. We will continue our efforts to teach others by having the opera performed in the Houston area high schools to tell the story of Emeline and the role Peter Gray played in maintaining her freedom through his pro bono service. We are also in discussions about having a performance of the opera at the Wortham. Through stories about Peter Gray’s role in securing justice for Emeline, we hope to continue to motivate our lawyers to engage in pro bono activities on behalf of those who cannot afford access to justice, while at the same time teaching Houston high school students important lessons through the story. Finally, the HBA will work with the Houston Bar Foundation to recruit new Houston Bar Fellows. Fellows will commit to contribute $2,000 to the Houston Bar Foundation payable at $200 per year for ten years or in a lump sum. Contributions by Fellows will allow the Foundation to become self-sustaining and allow it to maintain and expand its existing programs. This is your Bar Association and I am here to serve you. I am interested in hearing from you about what we can do to add value to your membership in the HBA. If you have any ideas about how we can do a better job, please feel free to send me an email at lgibson@ogblh.com or call me at 713-844-3003.
from page 37 rasied go to support the Houston Volunteer Lawyers program. We also will be recruiting new members to become Fellows in the Houston Bar Foundation so that we can adequately fund the cost of providing legal representation to those who cannot otherwise afford it. THL: What do you think has changed most about the practice of law since you became licensed? Gibson: Without a doubt, the greatest change I have seen since I began practicing law on January 2, 1985 is the speed of communication and the impact of that on the practice of law. Gone are the days of letters sent by mail, faxes arriving on curly paper with disappearing ink, document review which actually involved reviewing physical documents and files, and the opportunity to have long uninterrupted periods of time in which to analyze and solve complex legal problems. With that accelerated ability to communicate, comes the challenge of obtaining evidence from witnesses whose long term memories are adversely affected by the volume of communications they have and the obviation of the need to remember data which can be easily accessed from one’s Smartphone or computer. In addition to greatly complicating discovery, these changes have increased the pressure on lawyers to respond more quickly and to get more done each day, which adds stress to an already challenging job. THL: What do you like to do outside of the practice of law? Gibson: In my spare time, I like to travel, read, garden, cook and take photographs. Last year, our dear friends, Nabi and Leyla Cerit, who live in Istanbul, Turkey, visited us in Texas. In May, just before I was sworn in as president of the HBA, we traveled to Turkey visiting Istanbul, Cappadocia, Myra, Kas, Kalkan, Patara and Fethiye. THL: Are you involved with other professional or community organizations? Gibson: I am proud to be involved with the Association of Women Attorneys. I served on the Board of the AWA for four years and as president of the AWA from 2011-12. During my term, we began the Premier Women in Law Luncheon. The Luncheon profiles outstanding women lawyers and also raises money to fund scholarships for six women law students. I am also active with the University of Houston Law Center Alumni Board of Directors where I serve as a Board member. I am the treasurer of the Harris County Drug Court Foundation, which profoundly changes the lives of non-violent offenders whose crimes are caused by drug or alcohol dependencies. I served on the State Bar of Texas Advertising Review Committee for six years, including chairing the committee from 2007 to 2010. I also served on the Steering Committee for the Texas Minority Counsel Program where I served as CoChair for two years. I most recently served as a Director of the State Bar Board for District 4, Place 5 from 2012 to 2015, including serving as Chair of the Administration Committee, a member of the Executive Committee and on the Texas Bar Journal Board of Editors. THL: Is there anything else you would like to bring out in this interview that is important to you? Gibson: I feel so privileged to have the opportunity to serve the 11,300 lawyers who are members of the HBA. I would like to be able to persuade the almost 12,000 lawyers in Harris County who are not HBA members that they are really missing out by not joining our ranks. I am also incredibly privileged to have the opportunity to practice law in this wonderful legal community and to count so many of you as friends. Houston is truly the greatest and most diverse city in our country and the lawyers in Houston are among the best in the world. thehoustonlawyer.com
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