THL_July/August_2012

Courts and Sports: Player Injuries – Assumption of The Risk or Illegal Foul?

What Law Applies?

Technology-Assisted Review What Every Lawyer Should Know About Defending a Property Tax Suit Interview With New HBA President Brent Benoit

lawyer

THE HOUSTON

inside...

Volume 50 – Number 1

July/August 2012

Brent Benoit 2012-2013 President Houston Bar Association

Mark Gentry | Christine Belcher-Karnauch | Shelly Maffett | Carol Gonzales

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contents Volume 50 Number 1

July/August 2012

10

18

FEATURES and Sports: 10 Courts Player Injuries – Assumption of The Risk or Illegal Foul?

By Scott D. Marrs and Sean P. Milligan

Law Applies?

18 What

By Hon. Dan Hinde Review: 24 Technology-Assisted What Is It and Why Should You Care?

Gary Wiener

24

34

Every Lawyer Should 30 What Know About Defending a Property Tax Suit

By Michael Landrum

and Community...

34 Family An interview with new HBA president Brent Benoit

Takes Office as 38 Benoit HBA President

The Houston Lawyer

38

40

39 50-Year Lawyers Awards and 40 President’s Special Recognition

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715.

Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, 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. ©The Houston Bar Association, 2012. All rights reserved.

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Join the Houston Bar Association’s 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, corporate legal departments, law schools and government agencies 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 & Friend Adair & Myers PLLC Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Ajamie LLP Allen Boone Humphries Robinson LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Conley Rose P.C. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Diamond McCarthy LLP Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus & Scarborough LLP Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Goldstein & Lipski, PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harris, Hilburn & Sherer

Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hays McConn Rice & Pickering, P.C. Hicks Thomas LLP Hirsch & Westheimer, P.C. Hogan Lovells US LLP Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L. L. P. Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP McGinnis Lochridge & Kilgore LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Roach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C. 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, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery Droog LLP Short Carter Morris, LLP Singleton Cooksey LLP

Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Steele Sturm P.L.L.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wong, Cabello, Lutsch, Rutherford & Brucculeri, P.C. Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P. Firms of 25-49 Attorneys Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck Redden & Secrest, L.L.P. Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Olson & Olson LLP Seyfarth Shaw LLP Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P. Morgan, Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC

Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. 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 Exploration & Production Co. Pride International Inc. 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

contents Volume 50 Number 1

July/August 2012

34 41

42

departments Message 6 President’s Serving Our Members and

Our Community

By Brent Benoit

the Editor 8 From New Beginnings

By Keri D. Brown Lawyers 29 Houston Who Made a Difference

By Hon. Mark Davidson

43

47

Profile in Professionalism 41 AAlissa Rubin Gomez Executive Director, HBA Houston Volunteer Lawyers Program SPOTLIGHT 42 COMMITTEE LegalLine – Providing the Public

with Direct Access to Attorneys

By Keri D. Brown

Record 43 OffKenttheNewsome’s Country Road

By Julie Barry Trends 44 Legal National Federation of Independent

Business v. Sebelius and Its Effect on U.S. Health Care

By Sheryl Tatar Dacso

Arizona v. United States: A State’s Role in Immigration Enforcement

By Marcos Gemoets Reviews 47 Media A Marked Heart Reviewed by Angela L. Dixon

The Houston Lawyer

48 Placement Service 49 Litigation MarketPlace Cover: Brent Benoit of Locke Lord LLP is the 2012-2013 president of the Houston Bar Association. Photo by Gittings.

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thehoustonlawyer.com

president’s message

By Brent Benoit Locke Lord LLP

Serving Our Members and Our Community

The Houston Lawyer

I

t is an honor to serve as president of hunger in Houston. Despite our comof the Houston Bar Association this munity’s strong efforts, Houston has the year. With more than 11,600 memfourth highest rate of food insecurity in bers, the HBA is uniquely situated the nation. An estimated 53,000 people to assist both its members and the are hungry in our community every community. For more than 140 day and nearly half of these individuals years, the HBA has done are kids. exactly that, and we will This year we will “With more than 11,600 work this year to conpartner with the Souper members, the HBA is tinue this tradition of Bowl of Caring, a youthuniquely situated to service. led project organized Our first priority will around the NFL Super assist both its members always be to work to Bowl, to make a meanand the community. enhance the practices of ingful impact on hunour members. The HBA ger in Houston. The For more than 140 offers free and discountHBA will support this years, the HBA has ed CLE programs, secproject by organizing a done exactly that...” tion memberships that food and money drive provide opportunities to leading up to the Super network and stay abreast of current Bowl. We will also ask our members to developments in the field, and a host give of their time by volunteering to work of other benefits. We will continue at local hunger relief organizations, such these programs and look for new ways as the Houston Food Bank and local soup to make HBA membership even more kitchens. valuable.

Second, the HBA will work to make We will also serve our community. health care more accessible to the least Community service is not only the right fortunate among us. Houston is blessed thing to do, but it also allows our memto have world class medical and legal bers to foster relationships with others in communities. Yet, we have individuals our community. This year, the HBA will who are lost between these two groups have four primary areas of community fo— in need of health care, but with legal cus that are relevant, important, and conproblems that prevent or frustrate their sistent with the HBA’s overarching goal of health care access. We will establish a service.

Health Access Clinic as part of our HousFirst, the HBA will attack the problem ton Volunteer Lawyers Program. This 6

July/August 2012

thehoustonlawyer.com

clinic will aid impoverished individuals with legal issues related to health care access so that they can more effectively access the health care they need.

Third, the HBA will work to help Houston recover from the drought of 2011. As a result of one of the driest years ever recorded, the Bayou Land Conservancy estimates the Houston area lost as much as 10% of its trees. That is nearly 66 million trees! In addition to the obvious visible effects, a Texas Forest Service study estimated that the tree loss represents an economic impact of more than $20 billion.

The American Bar Association has a stated goal of planting 1 million trees and the University of Houston Law Center recently contributed by organizing a tree planting effort at its campus. The HBA will also participate by planting at least 1,000 trees in our community.

Fourth, the HBA will work to educate our community about a problem at the core of basic human legal rights – human trafficking. The ugly truth is that Houston is a major international hub for human trafficking. Because of our port, proximity to the border with Mexico, large migrant labor force, and the high number of sexually-oriented businesses, Houston has become a natural magnet for this activity.

Thousands of individuals fall victim to human trafficking each year and as many as 100,000 children are involved in the

sex trade each year. Unfortunately, it is estimated that less than 1% of human trafficking victims are rescued. Of those rescued in the United States, a quarter of them are found in Texas, most of them in the Houston area.

Human trafficking represents the denial of fundamental constitutionally protected liberties. Thus, while human trafficking certainly presents a profound moral problem for our community, it also presents a profound legal issue for our Bar. We will work to raise awareness concerning human trafficking, pointing out the legal and practical ramifications of forced servitude.

As you can see, we have a busy year planned. I hope you will become involved in the HBA’s many projects and take advantage of the many benefits of HBA membership. I look forward to working with you, and I welcome your suggestions as to how we can further enhance the HBA’s service to its members and our community.

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from the editor

By Keri D. Brown Baker Botts L.L.P.

Associate Editors

Julie Barry Attorney at Law

Angela L. Dixon Attorney at Law

Robert W. Painter Painter Law Firm PLLC

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Jill Yaziji Yaziji Law Firm

8

July/August 2012

New Beginnings

A

(They Happen Every Year)

s we begin a new bar year, we welcome Brent Benoit, our new Houston Bar Association President, as well as a new crop of committee chairs, section chairs, and members of these committees and sections. The beginning of a new bar year often mirrors the end of summer employment programs for many law firms throughout our city. At my firm, one topic we discussed with our summer associates is the importance of having a mentor in the legal profession. I have been very fortunate to have several mentors during my relatively brief legal career, and these mentors have helped me both with my legal practice and my professional development.

I am proud to write that I have reached a level where I am able to call myself a mentor to others in my firm.

Those of you who have practiced law for “a while” (you can define that phrase however you choose) by now undoubtedly have had a mentor and have been a mentor and friend to perhaps countless others. Those of you in your beginning years of the practice of law perhaps are still finding your mentors. One of our responsibilities, as members of the legal profession, should be to find mentors when we need them and be a mentor when others need us. As we begin the new bar year, consider where you are on the “mentor spectrum.” Are you being a mentor to your younger associates or partners? Are you a younger lawyer who could do a better job of finding a mentor to help guide you along the way? Challenge yourself to examine those relationships and, if need be, work to make them stronger.

While I’m on the subject, the HBA has a mentor/protégé program that matches experienced lawyers with lawyers in practice for three years or less or those who are entering a new practice area. If you are interested in joining the program, the application is available on the HBA website (www.hba.org) or by calling (713) 759-1133.

Turning back to matters of The Houston Lawyer, I am excited to tell you about the special issues we have lined up for our upcoming year. In our September/October issue, we will focus on human trafficking in Houston and its surrounding communities, which is one of Brent Benthehoustonlawyer.com

oit’s special focuses of this bar year. We will follow that up in November/December, discussing energy from an international perspective. We will start off 2013 with a very interesting January/February issue on the futurist’s view of the legal profession. In March/April, we will examine issues related to health care access, another of President Benoit’s special focuses. Finally, we’ll wrap up our bar year with our May/June issue, which will feature, as usual, the great volunteers and programs we have within the bar. If you have article ideas or are interested in being considered to write an article on any of these topics, we would love to hear from you. Please contact Tara Shockley, our managing editor, at taras@hba.org, or me at keri. brown@bakerbotts.com at any time with your thoughts about our magazine.

The issue you hold in your hands is our general issue, featuring a variety of legal topics. Scott Marrs and Sean Milligan follow up their excellent July/August 2011 article discussing spectator injuries at sporting events with a timely article about sports participants’ injuries and the distinction between injuries resulting from illegal conduct on the field and injuries where a player is determined to have assumed the risk. Judge Dan Hinde provides an informative article on how Texas courts determine which state’s laws govern when multistate issues arise. Gary Wiener addresses the sometimes-overlooked area of technology law with his article about technologyassisted review of documents to assist litigators with the mountains (or terabytes) of data that must be reviewed in some cases. And Michael Landrum provides an educational overview of the process of defending a property tax suit from start to finish.

This issue also brings us the first installment of Judge Mark Davidson’s profiles of noteworthy Houston lawyers.

Judge Davidson began writing these profiles last year for the Houston Bar Bulletin and we are pleased that his articles on significant happenings in Houston’s past will now appear in the pages of our magazine.

This magazine is yours. Please email us if you have any ideas for articles or improvement to our features. We look forward to hearing from you!

BOARD OF DIRECTORS President

Secretary

Brent Benoit

Laura Gibson

President-Elect

Treasurer

David A. Chaumette

M. Carter Crow

First Vice President

Past President

Benny Agosto, Jr.

Denise Scofield

Second Vice President

Todd M. Frankfort

DIRECTORS (2011-2013)

Hon. David O. Fraga Neil D. Kelly

Alistair B. Dawson Brent C. Perry

Jennifer Hasley Daniella D. Landers

DIRECTORS (2012-2014) Warren W. Harris John K. Spiller

editorial staff Editor in Chief

Keri D. Brown Associate Editors

Julie Barry Robert W. Painter Jill Yaziji

Angela L. Dixon Don Rogers

Erika Anderson Suzanne Chauvin Jonathan C.C. Day Polly Graham Stephanie Harp Hon. Dan Hinde Chance McMillan Nick Nicholas Hon. Josefina Rendon Tamara Stiner Toomer

Editorial Board

Sharon D. Cammack Melissa Davis Sammy Ford IV John S. Gray Al Harrison Farrah Martinez Judy L. Ney Jeff Oldham Joy E. Sanders Gary A. Wiener

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim Administrative Assistant

Ron Riojas

Ashley G. Steininger

Membership Assistant

Administrative Assistant

Bonnie Simmons

Ariana Ochoa

Receptionist/Resource Secretary

Committees & Events Director

Lucia Valdez

Claire Nelson

Director of Education

Lucy Fisher

Communications Director

Continuing Legal Education Assistant

Tara Shockley

Amelia Burt Community Education Assistant

Communications/ Web Designer

Natasha Williams

Brooke Benefield

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July/August 2012

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By Scott D. Marrs and Sean P. Milligan

Courts and Sports: Player Injuries – Assumption of The Risk or Illegal Foul?

I. RECENT EVENTS AND PUBLIC PERCEPTION – GAME CHANGERS Our country is experiencing an unprecedented shift in public perception about the level of intentional conduct causing injury that is acceptable in contact sports. There has always been a friction between the competitiveness of sports and the appropriateness of conduct aimed at injuring another. However, recent events have forced a national debate about the level of conduct that is acceptable and have educated the public on the debilitating effect of serious and prolonged injuries in contact sports.

In March 2004, millions of hockey fans witnessed the career-ending, on-ice beating of a player with the Colorado Avalanche by an opposing player with the Vancouver Canucks, resulting in criminal charges and a civil case that is heading for trial in late 2012. In March 2012, the New Orleans Saints were hit with the most severe sanctions in the NFL’s 92-year history for “bounty-gate,” a program of paying players to intentionally harm opposing players. And in what will likely become a game-changer in major sports, hundreds of former NFL players have sued the NFL (1,500 plaintiffs in over 50 filed cases as of publication) for its alleged failure to adequately warn about and prevent head injuries causing serious injuries or death. Several recent suicides of former NFL players have been blamed on the effects of on-field concussions, including Chicago Bears defensive back Dave Duerson in February 2011, Atlanta Falcons safety Ray Easterling in April 2012, and Pro-Bowl linebacker Junior Seau in May 2012.

The July/August 2011 issue of The Houston Lawyer featured our first sports injury law article, entitled “Sporting Events – Ticket to a Lawsuit?” That article focused on injuries sustained by spectators during sporting events. This article discusses how the law treats injuries sustained by sports participants, and

the difference between risks of injury that are assumed by players and those that constitute illegal fouls that cross the line.

II. LIABILITY ARISING FROM SPORTS PARTICIPANT INJURIES Participant injuries, and litigation, arise from both professional and recreational sports. Many Americans compete in recreational softball, football, soccer, basketball, and even kickball leagues, while others informally gather at the local park or YMCA to play a pick-up basketball, football, or softball game. Often, these informal recreational activities become physical. Ankles are sprained, knees are bruised, fingers are jammed, noses are broken, all while the participants enjoy the competitive nature of the game being played. Surely, a participant cannot sue for every injury sustained during the Saturday morning basketball game.

Can a participant in recreational, school, or professional sports recover for such injuries? Yes, but a few questions must be answered first: (a) Was the participant injured as a result of an intentional – or a reckless – act?; (b) Was the conduct complained of within the rules and parameters of the sport?; and (c) Did the injury occur during a professional or recreational sporting event?

While many participant injuries are unintentional and within the inherent risks of the game, there are situations where participants intentionally or recklessly injure another participant. For example, at what point is a pitcher civilly liable for throwing a ball between the batter’s shoulder blades? When can a late hit on a quarterback be the basis of a lawsuit? Is a boxer liable for a “rabbit” punch? This article does not attempt to answer all of these questions, but intends to shed some light on how courts analyze injuries to sport participants.

Generally, voluntary sports participants assume obvious and foreseeable risks inherent to the particular sport, but not extraordinary risks not incident to the sport. The public policy rationale

behind the assumption of risk doctrine is that barring suits for injuries received from inherent risks of the sport will encourage vigorous participation in athletic activities. Removing the threat of lawsuits arising out of ordinary negligence will give athletes the freedom to participate vigorously in their sport, without the fear of litigation if an injury occurs.

The question then becomes: what is an inherent risk as opposed to an extraordinary risk? One recent New York case involving a college softball player hit in the face by her coach (while he demonstrated how not to swing a bat), addressed this question. The court denied the college’s motion to dismiss the case filed by the injured player, holding that the player did not assume this risk since a jury could find that her experience in playing softball created an expectation that her coach would ensure her safety before swinging the bat (i.e., the risk was not an obvious and foreseeable risk inherent to college softball).1 However, where the risk is obvious and foreseeable in the particular sport, courts broadly apply the assumption of risk doctrine. In Bukowski v. Clarkson University,2 a freshman pitcher sued Clarkson University after he was struck in the face by a line drive during batting practice. He alleged that improper lighting and the absence of a protective “L” screen unreasonably enhanced the risk of being hit by a ball. The court dismissed the case at the close of evidence, holding that the pitcher assumed the inherent risks of being hit by a baseball while pitching during live batting practice. The court was not persuaded by the pitcher’s argument that the university failed to provide a protective “L” screen since he was aware before practice that an “L” screen would not be used and, therefore, assumed the added danger of pitching without the protective device.

A. Theories of Liability Participant liability generally arises from the following behavior: (1) intentional conduct by a participant towards an-

other participant; (2) willful disregard/ reckless misconduct; or (3) a failure to exercise reasonable care, (i.e., negligent misconduct).

1. Intentional Conduct A participant who intentionally injures another participant during a sporting event will be subject to civil liability for the injuries caused, because intentional harm is outside the scope of the rules of play. For instance, a participant in a basketball game cannot walk over to the opposing player and punch him in the face.

This blanket rule is not always so simple. The very act of engaging in a contact sport necessitates some intentional contact during play. Moreover, the nature of the sport weighs heavily in a court’s determination of whether the intentional conduct is actionable. For example, Oscar De la Hoya could not sue Felix Trinidad for knocking him out during a boxing match. Clearly, such contact was part of a mutual consent by both fighters before entering the fight. Likewise, LeBron James could not sue Kobe Bryant for fouling him when he goes up for a shot, even if Kobe intended to foul LeBron to prevent the basket.

A participant consents to intentional contact by engaging in the sport. Participation in a game, however, does not manifest a willingness to contact prohibited by the rules of the game, if such rules are in place to protect participants.

For instance, the rule prohibiting boxers from hitting below the beltline is designed to protect boxers from physical harm. Where a violation and subsequent injury occurs, liability is more likely.

Another interesting question is the extent to which sports participants should be given leeway where physical harm is the ultimate goal of the sport, as opposed to an unintended result of engaging in the activity. For example, in Mixed Martial Arts (“MMA”), the very purpose of the sport is to inflict damage on your opponent in any way possible, within the confines of the rules. This is different than a boxer who bites an opthehoustonlawyer.com

July/August 2012

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ponent’s ear during the match because boxing rules are more narrowly tailored to allow only punches to be inflicted on an opponent. Civil liability is less likely for the MMA fighter who is afforded more avenues to harm his opponent.

Football—the Recent NFL “BountyGate” Scandal It is no secret that football is not for the faint of heart. However, the recent NFL “bounty” scandal demonstrates that sports participants do not assume the risk of conduct aimed at intentionally injuring other players. In 2010, the NFL began investigating allegations that the New Orleans Saints paid their players a bounty for intentionally injuring players on the other team. In March 2012, the NFL announced its findings that several coaches and more than 20 players on the Saints team engaged in a “bounty” program, wherein players were paid bonuses for knocking opposing players out of the game.

The NFL found that the players and

defensive coordinator pooled their own money to pay these performance bonuses. The highest bonus was reserved for players who hurt an opposing player so bad that he had to be “carted off” the field on a stretcher (the bonuses were allegedly higher during the playoffs). One key item of evidence occurred during the 2009 playoffs in a game against the Minnesota Vikings. After the Vikings’ quarterback, Brett Favre, suffered an ankle injury after a punishing hit, an unidentified Saints player could be heard saying: “Pay me my money!”

The sanctions imposed by the NFL Commissioner were severe. The Saints Defensive Coordinator was suspended from the NFL indefinitely. The Head Coach was suspended for the entire 2012 season (for allegedly covering up the scandal), the General Manager was suspended for the first eight games of the 2012 season, and the Assistant Head Coach was suspended for the first six games of the 2012 season.

Several players were also suspended

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 Offices of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017 Downtown Office: 440 Louisiana, Suite 800 • Houston, TX 77002

713-222-6767 • www.nedbarnettlaw.com

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for their involvement, and the Saints organization was fined $500,000 and forced to give up draft selections from the 2012 and 2013 drafts. The sanctions were the most severe issued in NFL history. The NFL made highly publicized statements stressing the importance of its players’ health and safety. Interestingly, the NFL itself is now under attack for allegedly failing to protect its players from serious health problems arising from repeated head injuries, as discussed later in this article.

Hockey Hockey is perhaps one of the most physical sports on earth. Part of the excitement in attending a hockey match is watching a player check another player into the Plexiglass or the possibility of witnessing an old-fashioned brawl.

These fights are part of the game. Indeed, referees will monitor the fight and will generally only break it up when one player falls to the ice. But what is too far?

The infamous Todd Bertuzzi suckerpunch of Steve Moore is an example of a hockey fight that crossed the line.

During a March 8, 2004 game in Vancouver between the Colorado Avalanche and the Vancouver Canucks, Bertuzzi (a forward for the Canucks) instigated a fight with Moore. When Moore ignored him, Bertuzzi skated up behind Moore, grabbed his jersey, punched him in the side of the head, and then landed on top of him. Moore was severely injured, suffering three fractured vertebrae in his neck, a severe concussion, vertebral ligament damage, and several other injuries. Moore’s career was ended by the punch. Bertuzzi was charged by the criminal justice branch of the British Columbia Ministry with assault causing bodily harm.

Moore also filed a civil lawsuit in 2006 against Bertuzzi, the Canucks, and the Canucks’ former team owner, seeking $38 million in damages. To date, settlement negotiations have broken down and the case is likely heading to trial in

September or October 2012.

Baseball Not all cases are quite as clear from a liability standpoint. For instance, should civil liability be imposed on a pitcher who purposefully beans a player on the opposing team in retaliation for one of his players being hit earlier in the game?

In baseball circles, it is generally expected that pitchers will throw at opposing batters if one of his teammates is hit earlier in the game or in a previous game. Certainly this conduct is not allowed under the written rules, and players are often suspended and fined for this conduct. But is this an area where the courts should be involved? Or is this an intrinsic part of the game in which the law should not interfere? In Avila v. Citrus Community College District, the California Supreme Court said that courts should not interfere in these situations.3 In so holding, the court held that being hit by a pitch is an inherent risk of baseball, as is being intentionally

hit. The court noted that being intentionally hit is: so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” Pitchers intentionally throw at batters to disrupt a batter’s timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run.

This ruling makes sense. While intentionally drilling an opposing batter is clearly a violation of the rules, this is not an area in which the courts should be involved. The more workable approach is to allow the league to police itself in the form of fines and/or suspensions. As noted by Avila, throwing at a batter is part of the strategy of the psychological game between the pitcher and batter. Just recently, Philadelphia Phillies pitcher Cole Hamels openly admitted hitting Washington Nationals rookie

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phenom Bryce Harper, for no apparent reason other than to “welcome [him] to the big leagues.”4 Hamels was suspended for five games and will almost surely be insulated from civil liability. But rest assured, the Washington Nationals will look to settle the score in the next meeting between the two teams.

The same cannot be said for other sports. Throwing a basketball at another player for no apparent reason is not part of the strategy of the game, nor is club-

bing an opposing player with a hockey stick.

2. Reckless Conduct Although unauthorized intentional contact by a participant may be actionable in civil court, it is less clear whether unintentional conduct causing injury is actionable. The prevailing rule is that reckless conduct (conduct that is more than mere negligence, but less than intentional conduct) is sufficient to impose liability in

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participant injury cases. Recklessness is generally defined as highly unreasonable conduct, involving an extreme departure from ordinary care, where a high degree of danger is apparent.

A 1975 Illinois case, Nabozny v. Barnhill, firmly established recklessness as the prevailing standard in participant injury cases.5 A soccer player kicked the opposing goalie in the head as he held the ball to his chest. The Illinois court adopted a recklessness standard of care, holding that a participant may be liable where they manifest a flagrant disregard for the applicable rules of play. While the Nabozny decision involved amateur athletics, the reckless standard has been adopted in the context of professional athletes as well. The seminal professional athlete case is Hackbart v. Cincinnati Bengals, Inc., where the Tenth Circuit Court of Appeals held that a football player’s act of striking an opposing player in the head out of “anger and frustration” involved a risk of harm substantially greater than mere negligence, and was therefore actionable in civil court.6 Virtually every jurisdiction has established a threshold requirement of recklessness in order to recover for participant related injuries. Thus, to get a case to the jury, a plaintiff must ordinarily show that the defendant’s actions constituted an extreme departure from ordinary care and the rules of the game.

3. Negligent Conduct – The Mere Negligence Standard The majority of jurisdictions have refused to adopt a mere negligence standard for participant injuries in contact sports. Thus, a participant injured during a football, baseball, soccer, basketball, or hockey event cannot recover damages for injuries when the defendant was merely negligent. The principal justification for such a rule is to encourage healthy participation without the fear of liability. For instance, if a basketball player could be liable for an errant pass hitting another player in the face, a hockey player could be liable for a bad

shot on the puck that hits an unintended target, or a pitcher could be liable for a fastball that accidentally gets away and hits the batter, many courts believe the threat of such liability would undercut the competitive nature of the game. Only one jurisdiction, Wisconsin, has ever expressly adopted the negligence standard for participant injuries in contact sports, holding that a participant failing to use ordinary care may be liable for injuries caused to other participants from such negligence.7 However, the Wisconsin legislature later overruled the Lestina holding to codify a higher “recklessness” standard for sports related injuries.8 The mere negligence standard is more widely recognized as the standard for non-contact sports. For example, one Indiana court held that a golfer who was struck in the eye by a defendant hitting from another hole did not assume the risk of the defendant’s negligence.9 An Illinois court applied the negligence standard in a case where a skier was injured in a collision with another skier.10 This makes sense in application. In both contexts, contact is not an inevitable part of the activity, and therefore, a defendant may be held liable for negligently causing unexpected contact with a co-participant. Only a couple of jurisdictions apply the reckless standard for injuries sustained in noncontact sports.11 B. Other Recent Sports Liability Developments 1. The Recent Avalanche of Head Injury Litigation against the NFL Season-ending and even career-ending injuries are quite common in the NFL. The continuous punishment NFL players endure over the years has been placed front and center in a recent lawsuit by former NFL players living with the after-effects of concussions suffered on the field. In May 2012, over 100 former NFL players filed a federal court lawsuit against the NFL, alleging that the league repeatedly refuted the connection between concussions and brain injuries and failed to take reasonable steps to

issues will include whether the NFL had “superior knowledge” about the medical issues, whether a duty existed to warn and safeguard the players, and whether the NFL failed to disclose what it knew about the dangers of concussions.

The recent and tragic suicide of Junior Seau shines an additional spotlight on an already glaring problem. Traumatic brain damage has been found in autopsies of other former NFL players who have taken their own lives. This issue

protect players from devastating head injuries. Over 1,500 players thus far have claimed that the NFL hid the dangers of concussions from them. Some played in the 1960s, some in the 1990’s or more recently, and they have varying degrees of injury and lengths of actual field play.

Whether “assumption of risk” defenses will be successful will depend on a number of factors, with the determining factor being what the NFL (and the players) knew and when they knew it. Other

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has brought sports in our country to an important crossroads. The vitality and competitiveness of our sports franchises – and the games themselves – must be maintained while also adequately safeguarding the health of our players.

2. Participants in “Leisurely” Activities (versus “Sporting” Activities) May Not Be Assuming the Risk of Another’s Negligence A New York court recently drew a critical distinction between “leisure” and “sporting” activities in ruling that a bicyclist injured in an accident caused by roadway repairs did not “assume the risk” of injury from another’s negligence.12 The court noted that merely choosing to operate a bicycle on a paved public roadway, or engaging in other forms of leisurely activities such as walking, jogging, or roller skating on a public roadway, does not constitute a “consent” to the negligence of others (such as negligent maintenance of roadways by a

city or contractor). Thus, while voluntary participation in “sporting” activities subjects the participant to an assumption of risk defense, this New York court ruled that a participant in “leisurely” activities does not assume the risk of injury by others.

This case represents an interesting question: what activity is considered “leisure” and what is considering “sporting”? What if the bicyclist was in an actual competitive race? Ostensibly, assumption of risk would be a viable defense in that case. Oftentimes, the line between “leisure” and “sporting” activities are blurred. What about a pick-up basketball game at the local YMCA? These are questions that have not been clearly resolved by the courts. However, at least one court has now articulated the rule that those participating in a sport have assumed the risks inherent to their sport, while those who are merely partaking of recreational activities have not assumed the risks inherent in “sports.”

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3. Skiing the Rail - The Dare-Devil Skier Another New York court was asked recently to determine whether a skier who broke his leg trying to ski down a rail assumed the risk of injury.13 The plaintiff was a 17-year-old, self-described expert skier who was engaging in freestyle skiing with friends on a railing at the Lower Valley Terrain Park at Whiteface Mountain, which is operated by the New York State Olympic Regional Development Authority. The evidence showed that the skier was aware of the risks associated with rail sliding. His parents nonetheless filed suit against the State of New York, arguing that the rail was unsafe because the vertical support bars were not covered or cushioned. The court rejected this argument, holding that the plaintiff assumed the risks that were fully comprehended or perfectly obvious. The court further held that the skier could have inspected the rail before trying to slide on it, but chose not to.

4. Golfing - Duty to Yell Fore?

Proper golf etiquette typically requires a golfer to yell “fore” after hitting an errant shot. But can one’s failure to do so subject him to liability? A recent New York case said no.14 Three friends went out on a golf outing. On the first hole, one of the golfers hit his companion in the left eye with an errant shot. The injured golfer lost sight in his eye and sued his golf partner. There was a dispute as to whether the defendant yelled “fore.”

The court dismissed the case, holding that under the assumption of risk doctrine, the plaintiff, as a voluntary participant in a sporting and recreational activity, was deemed to have consented to commonly appreciated risks which are inherent in, and arise out of, the nature of the sport. The court further noted, in accordance with the general rule on assumption of risk, that only reckless or intentional conduct can give rise to liability. Failing to yell “fore” after hitting an errant golf shot was not reckless in the court’s view.

III. CONCLUSION – A STATE OF FLUX Traditionally, courts have been hesitant to hold participants civilly liable for injuries that are inherent in the sport.

However, if the participant intentionally harms another participant, liability may be imposed if such conduct is not within the accepted rules and customs of the game. Courts have also found participants civilly liable where they recklessly disregard the applicable rules of play, while refusing to impose liability for mere negligence.

What seems clear at this point is that participants will not recover for injuries inherent in the sport itself and which they assume. The fervent nature of competitive sports in America demands that athletes not be timid in playing the game. However, athletes should not be given free rein to intentionally or recklessly cause injuries to other participants.

More recent events have caused a fundamental shift in public percep-

tion regarding sports injuries. For decades, injuries were simply “a part of the game.” Today, the public is becoming more educated about the debilitating effect of serious trauma sustained in many sports activities. This is causing the public, the health industry, local and national sports franchises and organizations, legislatures, and the courts to take a fresh look at the sports injury issue, including cause and effect and issues of liability. As a result, we are in a state of flux – which will likely result in needed changes in the ensuing decade, designed to further protect the health and safety of sports.

Scott D. Marrs is a partner at Beirne, Maynard & Parsons, LLP and Sean P. Milligan is an associate at Winstead, PC. They represent clients in commercial disputes, trials and arbitrations, both in Texas and throughout the country. Marrs is an arbitrator on the American Arbitration Association’s Energy and Commercial panels.

Endnotes

Murphy v. Polytechnic University, 850 N.Y.S.2d 339 (N.Y. Sup. Ct. 2007).

2. Bukowski v. Clarkson University, 928 N.Y.S.2d 369 (N.Y. App. Div. 2011).

3. Avila v. Citrus Community College District, 38 Cal. 4th 148 (2006).

4. Chuck Schilken, Is Cole Hamels’ Punishment for Hitting Bryce Harper Appropriate?, LOS ANGELES TIMES, May 8, 2012, available at http://www. latimes.com/sports/sportsnow/la-sp-sn-cole-hamelspoll-20120508,0,6967618.story?track=rss&utm_ source=feedburner&utm_medium=feed&utm_cam paign=Feed%3A+latimes%2Fmostviewed+(L.A.+Tim es+-+Most+Viewed+Stories).

5. Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975).

6. Hackbart v. Cincinnati Bengals Inc., 601 F.2d 516 (10th Cir. 1979).

7. Lestina v. West Bend Mut. Ins. Co., 501 N.W.2d 28 (Wis. 1993), superseded by statute, WIS. STAT. § 895.525(4m).

8. WIS. STAT. § 895.525(4m).

9. Duke’s G.M.C., Inc. v. Erskine, 447 N.E.2d 1118, 1123 (Ind. Ct. App. 1983).

10. Novak v. Virene, 586 N.E.2d 578, 580 (Ill. App. Ct. 1991).

11. In a case involving injuries sustained by a golfer, the Supreme Court of Ohio held that there is no liability for injuries caused by negligent conduct in sporting events. See Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990). A Texas court has likewise held that a sport participant cannot recover for another’s negligence.

See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex. App.—Amarillo 1993, no writ).

12. Cotty v. Town of Southhampton, 880 N.Y.S.2d 656 (N.Y. App. Div. 2009).

13. Martin v. State of New York, 878 N.Y.S.2d 823 (N.Y. App. Div. 2009).

14. Anand v. Kapoor, 877 N.Y.S.2d 425 (N.Y. App. Div. 2009).

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By Hon. Dan Hinde

What Law Applies?

A

Minnesota company buys miles of steel pipe from a Missouri company to install in a pipeline in Wisconsin and Illinois. The seller manufactures the pipe in its Louisiana mill and ships it directly to the construction sites. Years after the pipeline is installed, buried, and placed into service, the pipeline leaks, forcing the buyer to dig up and repair some of the pipe. The buyer sues the seller in a Texas court for a variety of contract and tort claims. What law applies to the buyer’s claims and the seller’s defenses?

No, this is not a question from one of Professor Weintraub’s Conflict of Laws exams. It is a simplified version of the facts of a case that I nearly tried last year.

(The parties settled before trial.) And it highlights a foundational question in an increasing number of interstate disputes brewing in our civil courts—namely, “What law applies?”

So, how do courts in Texas determine what law governs? The analysis starts with two fundamental rules. First, by default, courts apply the substantive law of the state in which the court sits—the forum state.1 So when a party wants a court to apply another jurisdiction’s law, the party must ask the court to do so.2 Second, when asked to apply another state’s law, Texas courts—state and federal3— apply Texas’s choice-of-law rules (as opposed to applying some other jurisdiction’s rules).4 Texas’s rules for choice of law are a mixture of statutory directives and common-law doctrines, the latter of which are usually adopted—or at least adapted— from the RESTATEMENT (SECOND) OF CONFLICT OF LAWS. This article explains the basic analytical process under Texas’s choice-of-law rules for determining what law applies to the issues in dispute in civil cases in Texas.

I. STEP ONE: IDENTIFY THE ISSUE AT HAND The first step in a choice-of-law analysis is to identify the issue requiring such analysis. Courts analyze choice-of-law on a party-by-party, claim-by-claim basis;

the law that applies to one cause of action or party may not necessarily apply to others.5 It may not be clear what law governs a claim or defense. Or, there may be no dispute as to what law governs the claim or defense, but there may be uncertainty on what law governs a witness’s claim of privilege.6 Knowing which issues require analysis is the first step in choice of law.

II. STEP TWO: IS THE ISSUE SUBSTANTIVE OR PROCEDURAL? After identifying the issue requiring analysis, the next step is to determine whether the issue is substantive or procedural. If the issue is procedural, then Texas law governs—the court need not go further.7 If the issue is substantive, then the court must undertake a choiceof-law analysis.8 An issue is procedural if it is governed by a Texas rule or statute of procedure.9 Texas rules of construction apply when determining whether a Texas rule or statute is procedural.10 For example, limitations is a substantive defense if the statute creating the right of action establishes a limitations period.11 But if that statute does not establish a limitations period, then limitations is a procedural defense governed by Texas law.12 So, if the issue under examination is procedural, Texas law governs and the analysis ends. But if the issue is substantive, courts move to the next step—statutory directives.

III. STEP THREE: DO ANY STATUTES GOVERN THE CHOICE-OF-LAW ANALYSIS? After determining that the issue is substantive, the next step is to determine whether any Texas statutes govern the choice-of-law analysis.13 On this point, the Legislature has enacted several statutes setting the rules for determining what law to apply for various issues. Here is a nonexhaustive list of areas where the Legislature has enacted statutory choiceof-law rules: 1. UCC contracts,14 2. Commercial leases,15 3. Investment securities,16

4. Perfection of security interests,17 5. Transactions involving $1 million or more,18 6. Construction or repair of improvements,19 7. Sale, lease, or exchange of goods for $50,000 or less,20 and 8. Contracts made over the internet.21 Statutes lay down choice-of-law rules on these issues. But if no statute controls, then the next step is to determine whether there is an actual conflict of laws.

IV. STEP FOUR: IDENTIFY THE ACTUAL CONFLICT OF LAW If the parties dispute what law applies and no statute controls, then the court must determine whether there is an actual conflict of laws.22 The reason is sensible and pragmatic: If, for example, Texas and Illinois law on an issue do not differ, courts need not expend time and resources to decide which state’s law will apply because the issue’s outcome will be the same. If the laws do not conflict, then Texas courts will simply apply Texas law.23 To show an actual conflict, the parties must first identify which states’ (or countries’) laws might apply. After identifying the “candidate” jurisdictions, the parties must show how those states’ laws conflict with each other.24 For instance, Texas recognizes the tort of negligent misrepresentation,25 but other states do not.26 Conversely, Texas does not recognize negligent infliction of emotional distress,27 but other states do.28 Recovery of attorneys’ fees is another example of an issue that might raise a conflict. Texas law permits claimants to recover attorneys’ fees if they prevail on a contract claim.29 Other states, however, do not permit an attorneys’ fee award unless the contract includes a fee-shifting clause.30 Another example is whether the economic-loss rule bars certain tort claims.

Texas’s approach to determining whether the rule bars a tort claim may differ from the other candidate jurisdictions’ laws.31 Additionally, consumer protection

statutes vary widely among the states. In Tracker Marine, L.P. v. Ogle,32 then-Chief Justice Brister catalogued numerous areas where Texas’s consumer protection laws may conflict with other states’ laws.

So, depending on the issue, Texas’s DTPA may differ in consequential ways from another candidate jurisdiction’s consumer-protection law.

This article only provides a sample of areas where Texas law differs from other states’ laws. Lawyers should look carefully for issues that might raise true conflicts of law between jurisdictions and research the law in each candidate state to unearth conflicts.

V. STEP FIVE: DETERMINE THE STATE WITH THE MOST SIGNIFICANT RELATIONSHIP TO THE ISSUE If the court decides that an actual conflict of law exists, it must undertake a common-law analysis, which is invariably governed by the various iterations of the most-significant-relationship test found in the RESTATEMENT (SECOND) OF CONFLICT OF LAWS (the “RESTATEMENT”).

A. Usually, Texas courts apply the tests articulated in specific sections of the RESTATEMENT Repeatedly, the Texas Supreme Court has adopted the relevant provision of the RESTATEMENT when asked to articulate the appropriate test for determining which state’s law applies to a particular issue.33 So, for example, the Court has concluded that RESTATEMENT § 187 governs enforcement of contractual choice-of-law clauses (to the extent statutes such as those found in Chapters 271-274 of the Texas Business & Commerce Code do not apply).34 Similarly, when the contract lacks a choice-of-law clause, then the mostsignificant-relationship test for contracts found in RESTATEMENT § 188 applies.35 Likewise, for tort claims the Court adopted the tort version of the mostthehoustonlawyer.com

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significant-relationship test in RESTATEMENT § 145.36 For some tort claims, the RESTATEMENT lays out a more specific test. For example, § 148 applies to fraud.37 And while the courts have not explicitly so held, it appears that the law that applies to a claim for relief usually governs the substantive affirmative defenses raised in opposition to that particular claim.38 B. Sometimes, Texas courts apply tests from RESTATEMENT comments instead As can be seen, the most-significant-relationship tests call for courts to examine various contacts with the candidate states. But counsel should not fall into the trap of simply listing a flood of contacts with their preferred jurisdiction.

The Supreme Court has made clear that it is the quality of the contacts that matters—not the quantity—when determining the state with the most significant relationship.39

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Although the Texas Supreme Court invariably looks to the RESTATEMENT for deciding which choice-oflaw test to apply, the Court does not always adopt a specific RESTATEMENT test, but rather adapts one. For example, in Ford Motor Co. v. Leggat,40 the Court examined what choice-of-law rules govern claims of privilege. In that case, the Court appeared to adopt RESTATEMENT § 139, which favors disclosing the communication unless it is privileged in both the forum state and the state with the most significant relationship.41 But on closer examination, the Ford Motor Court did not actually adopt the test in § 139, but instead concluded that a witness or party’s claim of attorney-client privilege is governed by the state with the most significant relationship to the communication.42 The Court found this most-significantrelationship test in comment e of § 139.43 So instead of accepting § 139 itself as the test for privilege, the Court actually adopted the test in comment e.

The moral of the story is that counsel should carefully read the opinions analyzing and applying the various RESTATEMENT tests to ensure that they understand how the courts will apply the test to the issue at hand.

VI. CONCLUSION Choice of law in Texas can be simple, or it can be complicated. If no one raises the question whether another state’s law applies, Texas law applies. If the issue is procedural, Texas law applies. If there is no conflict between the different states’ laws, Texas law applies. Otherwise, there are various statutory and common-law tests that Courts use to make the decision.

In the end, the best way to persuade the Court is to make it easy for the Court to rule in your favor. Do this by following the steps in this article: clearly identify which issues require analysis and how the laws conflict, set forth the appropriate statutory or RESTATEMENT tests that apply, and marshal your evidence

according to each test factor. Counsel who embrace this analytical approach are more likely to persuade the trial court and more likely to protect the decision on appeal.

The Honorable Dan Hinde is the Judge of the 269th District Court in Harris County, Texas.

Endnotes 1.

2.

3.

4.

5.

6.

7.

Klaxon Co. v. Stentor Elec. Mfg. Co., 61 S. Ct. 1020, 1022 (1941).

See, e.g., Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 650 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d w.o.j.), mand. denied sub nom. Deloitte & Touch LLP v. Fourteenth Court of Appeals, 951 S.W.2d 394 (Tex. 1997) (orig. proceeding).

For state law issues, federal courts apply the choice-of-law rules of the forum state. Day & Zimmerman, Inc. v. Challover, 96 S. Ct. 167, 167-68 (1975) (per curiam) (reversing the Fifth Circuit for not applying Texas choice-of-law rules); Klaxon, 61 S. Ct. at 1022; De Aguilar v. Boeing Co., 47 F.3d 1404, 1413 (5th Cir. 1995).

Day & Zimmerman, Inc., 96 S. Ct. at 167-68.

Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 727, modified on other grounds, 355 F.3d 356 (5th Cir. 2003); see Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205-06 (Tex. 2000) (explaining that choice-of-law tests must be applied by issue, not by case); Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (noting that the choice-of-law test in a class action should be applied as to each class member, not to the class as a whole).

See, e.g., Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex. 1995) (orig. proceeding).

California v. Copus, 309 S.W.2d 227, 230 (Tex. 1958); Hill v.

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Perel, 923 S.W.2d 636, 639 (Tex. App.—Houston [1st Dist.]

1995, no writ).

8. Copus, 309 S.W.2d at 230-31; Hill, 923 S.W.2d at 639.

9. Owens-Corning Fiberglass Corp. v. Martin, 942 S.W.2d 712, 721 (Tex. App.—Dallas 1997, no writ).

10. Penny v. Powell, 347 S.W.2d 601, 602 (Tex. 1961).

11. Hill, 923 S.W.2d at 639.

12. Copus, 309 S.W.2d at 230-31; Hill, 923 S.W.2d at 639.

13. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(1) (1971) [hereinafter, RESTATEMENT] (“A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.”).

14. TEX. BUS. & COMM. CODE ANN. § 1.301 (Vernon 2009).

15. Id. § 2A.105.

16. Id. § 8.110.

17. Id. §§ 9.301-.306 & 3.316.

18. Id. ch. 271.

19. Id. ch. 272.

20. Id. ch. 273.

21. Id. ch. 274.

22. Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994); Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 650 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d w.o.j.), mand. denied sub nom. Deloitte & Touch LLP v. Fourteenth Court of Appeals, 951 S.W.2d 394 (Tex. 1997) (orig. proceeding).

23. Weatherly, 905 S.W.2d at 650.

24. Weatherly, 905 S.W.2d at 650.

25. Federal Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991).

26. See, e.g., Hutteger v. Davis, 599 S.W.2d 506, 514-15 (Mo. 1980) (Welliver, J., dissenting).

27. Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993) (holding that Texas does not recognize negligent infliction of emotional distress).

28. See, e.g., Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo. 1983); Schultz v. Barberton Glass Co., 447 N.E.2d 109, 113 (Ohio 1983); Rodriguez v. State, 472 P.2d 509, 520 (Haw. 1970).

29. TEX. CIV. PRAC. & REM. CODE § 38.001 (Vernon 2008).

30. E.g., Tower Props. Co. v. Allen, 33 S.W.3d 684, 690 (Mo. Ct. App. 2000) (Missouri law).

31. Compare Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 44-47 (Tex. 1997) (exploring Texas law on the economic-loss rule) with Bridgestone/ Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir. 1996) (explaining New York’s test).

32. 108 S.W.3d 349, 352-54 (Tex. App.—Houston [14th Dist.]

2003, no pet.).

33. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206 n.2 (Tex. 2000) (listing several cases in which the Court applied various provisions of the RESTATEMENT).

34. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex. 1990).

35. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984).

36. Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979).

37. See, e.g., Swanson v. Schlumberger Tech. Corp., 895 S.W.2d 719, 732-33 (Tex. App.—Texarkana 1994), rev’d on other grounds, 959 S.W.2d 171 (Tex. 1997); Prairie Prod’g Co. v.

Anglina Hardwood Lumber Co., 882 S.W.2d 640 (Tex. App.— Beaumont 1994, writ denied), modified on other grounds, 885 S.W.2d 640 (Tex. App.—Beaumont 1994, writ denied).

38. See RESTATEMENT at §§ 161, 164, 168-170, 198-207.

This can get complicated. Consider a case where plaintiff sued for fraud, asserted fraudulent concealment against a limitations defense, and raised fraudulent inducement against a counterclaim for breach of contract. Should the same law that governs the plaintiff’s claim for fraud apply to its fraudulent concealment rebuttal? What if the limitations defense is procedural and therefore governed by Texas law, but the fraud cause of action is governed by another state’s law? Should the same law that governs plaintiff’s fraud claim apply to its affirmative defense of fraud against the contract counterclaim? What if the contract is governed by a different state’s law?

39. See Gutierrez, 583 S.W.2d at 319.

40. 904 S.W.2d 643, 646-47 (Tex. 1995) (orig. proceeding).

41. Id. at 647.

42. Id. 43. Id.

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Equal Access

Champions

What does it take to become an “Equal Access Champion”? The firms and corporations listed below have signed 5-year commitment forms that indicate they will uphold a pledge to provide representation in a certain number of cases each year, based on the number of attorneys in the firm or legal department. The goal is to provide pro bono representation in at least 1,500 cases through the Houston Volunteer Lawyers Program each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Locke Lord LLP Vinson & Elkins LLP Corporate Champions Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips Exxon Mobil Corporation LyondellBasell Marathon Oil Company Port of Houston Authority Shell Oil Company Intermediate Firm Champions Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP Adams & Reese LLP Baker Hostetler LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day

Morgan, Lewis & Bockius LLP Porter Hedges, L.L.P. Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges Winstead PC Small Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck, Redden & Secrest, L.L.P. Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky & Gould, P.C. Kroger | Burrus Schwartz, Junell, Greenberg & Oathout, L.L.P Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP Boutique Firm Champions Blank Rome LLP Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire Sanders LLP

Sutton McAughan Deaver LLP Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C. Solo Champions Law Office of O. Elaine Archie Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of David Hsu Brogden Law Office of Robbie Gail Charette Chaumette, PLLC Law Office of Papa M. Dieye The Ericksen Law Firm Frye & Cantu, PLLC Fuqua & Associates Terry L. Hart Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. The Keaton Law Firm, PLLC Gregory S. Lindley Law Office of Maria S. Lowry Martin R. G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC Bertrand C. Moser Pilgrim Law Office Robert E. Price Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Tindall & England, P.C. Diane C. Treich Norma Levine Trusch thehoustonlawyer.com

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TechnologyAssisted Review: What Is It and Why Should You Care?

By Gary Wiener

N

ow that technology-assisted review has begun to receive the “Good Judicial-Keeping Seal of Approval,” the legal media and blog headlines scream out like plot points from an Isaac Asimov novel: “Computers will take over document review!” “Half of all litigators will lose their jobs to computers!”

“The practice of law will die due to technology!” Have no fear; litigators are not going to be obsolete.

Just recently, one federal court (with another case awaiting decision) and one state court have approved the initial use of technology-assisted review (“TAR”) to cull huge electronic document sets in preparation for discovery production,1 thus maximizing the tremendous leverage and cost savings that technology can provide modern litigation. But to suggest that even the most sophisticated conceptual-recognition algorithms will replace the review skill of a trained attorney is like suggesting that the pneumatic nail gun would render carpenters obsolete.

TAR is a powerful tool that assists with reviewing massive documents for discovery responsiveness and privilege.

But it is only that – a tool. It works much better than the legacy “eyes on the page” method of manual, linear document review. But unless Asimov’s storylines begin to come true and computers achieve sentient consciousness, TAR will not replace lawyers. In fact, it should make litigation more efficient, leading to happier clients and larger billable bases.

What Is TAR? TAR utilizes computer pattern-matching algorithms to identify and index not just the keywords within documents, but their conceptual relationships as well.

Conceptual indexing allows the index engine to recognize patterns in text and relate them to each other, so that it can draw an inference, for example, that the concept “cat” is related to the concept

“feline.” In this manner, documents can be compared not only for similarities in the exact word patterns used, but also in the meaning of the words.

In order for TAR to be useful, the computer axiom “garbage in, garbage out” definitely applies. An experienced document reviewer must carefully and consistently code a “seed set” of documents for responsiveness, privilege, and any other tagging fields that the litigation may require. Once this “seed set” of a few thousand documents has been coded, TAR can begin its work.

The TAR engine examines a new document and looks for already-coded documents that are conceptually and structurally similar to the new one. The engine then compares the documents it finds and examines which coding decisions were made, and using that information, predicts the likelihood that the new document will be coded as responsive or non-responsive, privileged or non-privileged, and so on.

TAR is commonly described in the litigation support industry as “predictive coding.”

This term is misleading, as it implies that the TAR engine is making the responsiveness and privilege calls for each document on its own, without human input. TAR can predict the likelihood that (based on previouslyestablished patterns) the new document might be accurately coded a particular way, but it remains up to humans to finally determine whether the coding predictions should be applied.

Once the engine has generated its predictions, random sampling of documents is used to check the technology’s accuracy. It is quite likely that the parameters for prediction will need to be refined and another random sample of documents will need to be checked for accuracy; and indeed, the process may

require several iterations before the litigators are confident enough to bulkcode the rest of the document corpus.

The goal of TAR is to create a computerized method of automatically tagging as many non-responsive documents as possible to ensure consistency and accuracy in the document review coding metadata. As U.S. federal courts have acknowledged, there is no review tool that guarantees perfection,2 nor is perfection expected3 – only a good faith, systematic, defensible method of applying technology to organize the document corpus.

What’s So Great about Human Doc Review?

Rather than ask why use TAR, the better question might be: What’s so wonderful about the “gold standard” of human document review in the first place? As commentator Ralph Losey, National eDiscovery Counsel for Jackson Lewis, LLP, has noted, “Experiments in TREC [the Text Retrieval Conference studies, a project of the National Institute of Standards and Technology to scientifically measure computer recall and precision to that of humans]... showed that we humans are very poor at making relevancy determinations in large data sets.”4 Consider, if you will, the distractions facing a typical document reviewer, as opposed to an attorney who has chosen to make a career of document review. The former is often an unemployed attorney, contracted into a review “bullpen” by an agency hired by a law firm to handle first-pass review. At best, contract review attorneys are paid $25-35 per hour, which is substantially less than what a permanent associate would make for the same work. For this small fee, the reviewer is expected to sit in front of a computer and view docuthehoustonlawyer.com

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ments for eight to twelve hours a day, five or six days a week, for the duration of the project, knowing that he will be unemployed again upon the project’s completion. So, a reviewer generally starts the project with one major distraction already in place: poor morale.

The reviewer must read documents for responsiveness and privilege, based upon guidelines typically overseen by an associate of the law firm, who is onsite supervising the review team. Presuming that the associate understands the review guidelines well enough to effectively communicate them to the contract reviewers, the task of the reviewer is to slog through documents as quickly, efficiently and accurately as possible.

The associate may also suffer from poor morale, preferring to be back in the office earning face time with the partners rather than working hidden from their view. Perhaps this frustration spills over in the direction of the contract reviewers, who simply hope to remain employed. This potential conflict provides

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a second distraction.

Should the reviewer’s document totals lag for any reason, such as random assignment of excessively long documents, computer glitches or personal distractions, the supervising associate may question whether the contractor’s work output justifies keeping him on the review project. With so many other unemployed attorneys desperate for paying work, and given that there is no requirement that a document reviewer be a licensed attorney in the first place, the contract reviewer’s continued employment is always uncertain. He can be (and frequently is) replaced in a flash.

This continual lack of job security poses yet a third significant distraction.

Notice that we have not even discussed the quality of the document review. Even if we could somehow hike the pay and improve the morale of contract reviewers, we still face the silent threat of inconsistency in coding. If multiple copies of the same document are reviewed by different reviewers, it is very

likely that some will interpret the same document’s meaning and context differently, because, like it or not, reviewers bring their own life experience into the review. Hence, the resulting coding will be inconsistent, but almost impossible to correct during the quality assurance stage. Finally, the potential for the reviewers to suffer frequent lapses of concentration, and, therefore, errors in review and coding, is rife, as is the potential for inconsistent application of the review guidelines.

These dangers are not merely theoretical, as a legal malpractice case currently working its way through a California state court illustrates. This case pits a plaintiff’s company against its former outside counsel, accusing them of improperly disclosing some 3,900 privileged documents and/or failing to adequately supervise contract document reviewers.5 Indeed, a landmark scientific study as far back as 1985 proved that lawyers (who considered themselves expert in keyword search)

who were asked to use Boolean searching to find 75 percent of the relevant documents in a 40,000-document case, actually only found 20 percent.6 More recent studies have concluded that “[o] n every measure, the performance of... computer systems was at least as accurate (measured against the original review) as that of human re-review.”7 Why TAR? To the extent that attorneys try to cull the corpus of potentially-responsive documents prior to human review, they have traditionally done so using keyword searches. Every attorney who went to law school during the computer age learned the basics of keyword and Boolean search logic in their first year of law school, thanks to Lexis and Westlaw.

Most lawyers think they have become expert in the practice. However, searching unstructured, stream-of-consciousness text is not the same as searching within carefully-proofread case law. At least one federal court has commented that “determining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) and requires expert testimony that meets the requirements of Rule 702 of the Federal Rules of Evidence.”8 In other words: keyword search is no job for amateurs.

Ralph Losey has, quite accurately, analogized keyword search to the childhood card game of “Go Fish.”9 Even before the issues in the litigation have been fully assessed for validity or scope, attorneys assemble keyword queries based on words that they guess the responsive documents are likely to contain, in addition to brainstorming for possible synonyms, misspellings, and acronyms.

In truth, the litigators cannot have any idea what results they are likely to see returned from their searches, nor can they be sure that they have anticipated every possible turn of phrase, industry jargon, or creative mistyping for each of these terms that might be present in a thehoustonlawyer.com

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responsive (or, indeed, “smoking-gun”) document. They are “designing keyword searches in the dark, by the seat of the pants...”10 In contrast, TAR uses the actual indexed content of the documents to formulate its coding predictions for the first-pass review. The conceptual patterns within each document are analyzed mathematically, and the relationships of those concepts to each other form the basis of the TAR engine’s predictions. No keyword brainstorming needs to take place, as the TAR engine can compare the concepts within the current document to concepts that it has already identified in the previouslyreviewed documents and base its predictions accordingly.

Unlike humans, a computer won’t lose concentration due to distraction, bitterness, or confusion; TAR predictions are applied consistently throughout the corpus of documents. Once done, counsel must go back and, using statistical random sampling, spot-check the accuracy.11 The beauty of TAR is that, if the engine’s predictions are not sufficiently accurate, the input can be refined and the corpus can easily be rerun. The predictg sample g refine g rerun process can continue through as much iteration as necessary, until a suitable degree of confidence has been obtained.

TAR: Part of This Complete Breakfast Using TAR to locate responsive documents and identify potentially-privileged files does not conclude the inquiry.

While TAR is a very useful tool, it is just that – a tool. It limits the need for human review of documents to those that have been identified as relevant. TAR is not intended to make the responsiveness and privilege calls by itself, and no software vendor should suggest otherwise.

Also, not all TAR platforms perform their tasks exactly the same way. While the courts that have addressed the issue so far have authorized the use of predictive coding generally, no one suggests that the technology is infallible. If the 28

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TAR software is flawed or if one party is not receiving the types of documents that it thinks should be produced, the receiving party can still object to the sufficiency of the production. Also, the skill and craftsmanship of the attorneys who train the TAR algorithms is crucial.

If the expert reviewer is inconsistent in her initial relevance calls, the computer predictions based on those calls will also be inconsistent.

Keyword and Boolean searches still have a very significant place in managing a corpus of documents for review.

TAR is not meant to replace litigators or the way they have been handling discovery. It is simply another way to help make the traditionally inefficient process of document review cheaper, faster and more efficient.

Attorneys will have to learn to get the most out of the TAR technology in order to be able to use it most effectively, but should never fear being replaced by it. As Ralph Losey writes, “[Y]ou must never let the tail (the software) wag the dog (legal search). Attorneys must at all times remain in control and not abdicate their responsibility as legal advisers...

In other words, even the best software is only as good as the lawyers who use it.”12 Gary Wiener (Twitter: @GaryWiener) is an e-discovery instructor and subject matter expert for Autonomy, an HP company. He also is a member of The Houston Lawyer Editorial Board.

Endnotes 1.

2.

3.

4.

See Monique da Silva Moore, et. al. v. Publicis Group SA, et al., 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24. 2012), and Global Aerospace Inc., et al, v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012), in which the judges have permitted use of TAR; see also Kleen Products, LLC v.

Packaging Corp. of America, No. 10 C 5711 (N.D. Ill. Apr. 8. 2011), pending decision as of this writing, in which the judge is being asked to order (rather than merely permit) TAR. Da Silva Moore, supra (S.D.N.Y. Apr. 25, 2012).

See, e.g., Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456 (S.D.N.Y. 2010).

Ralph Losey, “Secrets of Search – Part One,” e-Discovery Team, http://e-discoveryteam.com/2011/12/11/secrets-ofsearch-part-one/ (last visited May 20, 2012).

J-M Mfg. Co., Inc. v. McDermott Will & Emery, No. BC463832 (Cal. Supr. Ct. L.A., July 28, 2011).

6. David C. Blair & M.E. Maron, An evaluation of retrieval effectiveness for a full-text document-retrieval system, COMMUNICATIONS OF THE ACM, Volume 28, Issue 3 (March 1985).

7. Herb Roitblatt, Ann Kershaw and Patrick Oot, “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review,” Journal of Am. Soc. for Information Science & Technology, 61(1):70 80 (2010).

8. Equity Analytics LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008).

9. Ralph Losey, “Child’s Game of ‘Go Fish’ is a Poor Model for e-Discovery Search,” e-Discovery Team, http://ediscoveryteam.com/2009/10/04/childs-game-of-go-fishis-a-poor-model-for-e-discovery-search/ (last visited May 20, 2012).

10. William A. Gross Const. Assoc., Inc. v. Am. Mfrs. Mutual Ins. Co., 56 F.R.D. 134, 135 (S.D.N.Y. 2009).

11. See, e.g., In Re Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. 2007) (“Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness”); Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010) (plaintiff “failed to perform critical quality control sampling to determine whether their production was appropriate and neither overinclusive nor under-inclusive.”).

12. Ralph Losey, “Predictive Coding Based Legal Methods for Search and Review,” e-Discovery Team, http://ediscoveryteam.com/2012/03/25/predictive-coding-basedlegal-methods-for-search-and-review/ (last visited May 21, 2012).

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Houston Lawyers Who Made a Difference:

John L. Hill

In celebration of the 175th year of Texas independence in 2011, Judge Mark Davidson wrote an article for each issue of the Houston Bar Bulletin on Houston lawyers who have had a significant impact on the law, the legal profession and those served by the law.

Being so well received, his column moves this year to its permanent home in The Houston Lawyer.

By Hon. Mark Davidson

T

here is probably no lawyer in Texas history who accomplished more tasks in a greater number of areas than John Hill. Whether as a lawyer, a jurist, or an official in the Executive Branch of Government, his entire career was one of exceptional achievement.

A few years out of law school, he brought together a group of young lawyers of exceptional ability to found the firm of Hill, Brown, Kronzer and Abraham. The firm met with great success for their clients and acquired a reputation of being among the elite litigation firms in the state. In an aviation case, Hill arranged for an entire wing of a commercial airplane to be

brought into the Harris County Courthouse as an exhibit.

In 1966, Governor John Connally named Hill to be the Secretary of State. He transformed an office that was then little known outside of Austin. Instead of an office that did little more than receive documents signed by the governor and the occasional proclamation, the office became the depository for Uniform Commercial Code Filings, bringing Texas into the era of modern commerce. That experience whetted his appetite for service in State Government, and in 1972 he was elected Texas Attorney General. He expanded the role of the office from just representing state agencies to one that represented Texans. He recruited a team

of young aggressive lawyers who litigated cases in areas as diverse as child support collection, environmental protection and consumer advocacy.

In 1984 he was elected Chief Justice of the Supreme Court of Texas. Many of his opinions advanced Texas law, and his administration of the Court was recognized by all to be faultless.

His accomplishments in any one of those roles would have made for a remarkable career. He transformed his life several times. In each of his jobs, he achieved a level of success that made a difference for Texas and Texans.

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High proole free standing office building in the Heights. High traffic. Historic renovation & winner of the Heights Association Communinty Improvement Award. 20+ parking spaces. Fenced dog yard. Beautifully appointed.

thehoustonlawyer.com

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What Every Lawyer Should Know About

Defending a Property Tax Suit

By Michael Landrum

In spite of meticulous planning, many practitioners may find themselves faced with a client who has been unfortunate enough to be served with a suit for collection of delinquent ad valorem taxes.

There are statutes, rules and practices peculiar to delinquent tax cases.1 Ad Valorem Tax Basics Ad valorem taxes are levied against both residential and commercial real property, and against “business personal” property.2 The tax is based on an appraised value established by the county appraisal district. The appraisal district certifies its tax roll, which describes all taxable property in the county and states the value determined for each property account.

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Each individual taxing jurisdiction then calculates its tax amount by applying its tax rate to the appraised value, and issues a tax statement.

Lien A lien to secure the payment of taxes automatically attaches to all taxable property on January 1 of each year.3 There is no requirement that an instrument be filed for the lien to be perfected.4 The tax lien is superior to all other claims, except claims against the estate of a decedent for last illness, funeral and burial expenses and survivor’s allowance; recorded restrictive covenants; and recorded easements.5 Due date Ad valorem taxes are due when invoiced.6

Tax statements are to be mailed “by October 1, or as soon thereafter as practicable”.7 Delinquency Date In most cases, the tax becomes delinquent if it is not paid before February 1 of the year following the year for which the tax is imposed.8 For example, the tax for year 2011 is due when the bill is issued, but must be paid not later than January 31, 2012 to avoid the imposition of late payment penalties and interest. Mailing of payment on January 31 is sufficient to avoid delinquency, provided there is a January 31 postmark on the payment envelope.9 If a tax statement is issued after January 10 of the year following the applicable tax year, then the delinquency date for the taxes invoiced is “postponed to the first day of the next month that will provide a period of at least 21 days after the date of mailing for payment of taxes...”10 An exception exists for an owner on active military duty during a war or national emergency.11 The delinquency date is postponed until after the owner returns from active duty.

Penalties If a tax is not paid before it becomes delinquent, then substantial penalties are added to the amount due.12 A penalty of 6% of the amount of the principal due (not 6% per annum) is imposed immediately on February 1, and an additional penalty equal to 1% of the “base tax” amount is imposed on the first day of each subsequent month. The total penalty becomes 12% of the base tax amount on July 1, and it is capped at that amount.

Interest Unpaid taxes accrue interest at the rate of 1% per month, beginning on the date the taxes become delinquent.13 With penalties and interest added, a taxpayer will be sued for the amount of the “base tax” plus an additional 7% if paid in February; 9% if paid in March; 11% if paid in April; 13% if paid in May; 15% if paid in June; 18% if paid in July; and an additional 1% interest each month thereafter.

Attorney Fees Attorney fees shall be awarded to the taxing jurisdiction if suit is filed and a tax is not paid before the first of July following the date of delinquency.14 The attorney fee is set by contract between the taxing jurisdiction and its counsel but may not exceed 20% of the sum of the delinquent tax, statutory penalty and interest collected.15 The award of attorney fees is mandatory and the court is without discretion to award a different amount.16 Costs In addition to delinquent taxes, statutory penalty, interest and attorney fees, taxing units are entitled to recover court costs, cost for filing a notice of lis pendens, expenses of a tax foreclosure sale, expenses for identifying the property and determining the identity and location of necessary parties, and reasonable ad litem attorney fees determined by the court.17 Liability The owner of the subject property on January 1 of the tax year is personally liable for the payment of the tax. A conveyance of the property after January 1 does not transfer the personal liability with the title.18 A current owner may not be held personally liable for a tax assessed before his ownership.19 One is not relieved of personal liability to a taxing jurisdiction by his contract with a third party.20 A buyer of business personal property can be personally liable for unpaid taxes coming delinquent prior to the sale, up to the amount of the purchase price.21 The statute requires a buyer to retain from the purchase price an amount equal to the amount of delinquent taxes.

Citation Citation in a delinquent tax suit is different than citation issued in other civil cases. Special provisions relating only to tax suits are found in Texas Rule of Civil Procedure 117a. It is not required that a copy of a petition be served with a citation in a delinquent tax suit, provided the citation complies with Rule 117a.

The citation must contain: • A brief description of the property against which the tax is claimed; • The amount of taxes alleged to be owed to the plaintiff taxing unit; • A statement that the plaintiff seeks collection of the delinquent taxes and all penalties, interest and costs accrued until the date of final judgment; and • Identification of all other taxing units that may be entitled to bring a claim for delinquent taxes.

The citation will also warn that the suit is brought for any additional taxes that may become delinquent after the suit is filed and before the entry of final judgment.

Trial Parties The parties to a tax suit may include all taxing jurisdictions in which the subject property is located and to which delinquent taxes are owed. These “other taxing units” may intervene in the suit “without the necessity of further citation or notice to any parties to such suit.”22 A plaintiff filing a delinquent tax suit “shall join other taxing units that have claims for delinquent taxes against all or part of the same property.”23 Failure of a taxing unit to intervene in a suit before final judgment extinguishes the lien of that entity.24 Appropriate defendants in a tax suit include not only the title owner(s) of the property as of January 1 of each year for which taxes are sought, but also all persons owning title to the property at the time of the suit and all persons claiming a lien interest.

While a lien holder is not personally liable for payment of the delinquent taxes, it has a constitutional right to notice of the suit that could extinguish its lien claim.25 Lien holders are not liable in personam, but judgment against their interest in the property, in rem, may be entered.

As the tax lien is superior, the inferior lien will be extinguished by the tax foreclosure sale, even though the lien holder

is not personally liable.

As in any civil case, an attorney ad litem must be appointed in tax delinquency matters in which a necessary party cannot be located and served by any permissible means.26 In all real property suits, “the court shall appoint an attorney to defend in behalf of such owner or owners [cited by publication], and proceed as in other causes where service is made by publication.”27 A court’s failure to appoint an attorney ad litem to represent a defendant who has not appeared following publication service is reversible error on the face of the record.28 Answer It should go without saying that it is always good practice to file a written answer, as dozens of default judgments in tax suits are signed each week. The only truly viable defenses to a tax suit are affirmative defenses.

Defenses That Work 1. Non-ownership of real property on January 1 of the appropriate year.29 2. The property is/was not situated within the taxing jurisdiction claiming the taxes.30 3. Payment of the taxes and any lawful penalties, interest and costs.

4. Limitations.31 a. For taxes levied against real property, the limitation period is 20 years. b. For personal property taxes, the period is 4 years. c. Limitations begin running on the date taxes become delinquent.

5. Not technically a defense, but a solution for some – if the taxes sought are levied against the residence homestead of a person who is either 65 years of age or older, or is disabled, the suit will be abated and collection of taxes deferred.32 Defense based on lack of notice Certain notices of delinquency are required to be mailed to property owners.33 In certain cases, failure to send these notices can result in the postthehoustonlawyer.com

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ponement of the delinquency date.

Defenses that do not work “The property is over valued.” The district court is without jurisdiction to alter a valuation that has not been timely appealed.34 “We’ll pay the taxes, but the penalties are outrageous.” The penalties are statutory and mandatory.

Evidence Certified tax statements are admissible without further predicate and are prima facie evidence of the tax due. The certified tax statements admitted into evidence also stand as proof that the taxing units “complied with all requirements of law” pertaining to the levy of the taxes and the prerequisites established by law for the collection of penalties and interest provided for by statute.35 The presumption is rebuttable, and the defendant assumes the burden of proving payment, lack of notice, or another defense.36 Judgment The judgment in a tax case will award monetary amounts for all taxes that were delinquent on the date of the judgment, all accrued penalties and interest, collection costs (attorney fees, title search fees, etc.) and court costs. The judgment will be entered in favor of all taxing jurisdictions that are joined in the case as plaintiffs and intervenors.

The judgment will set forth the “adjudged value” of the property.37 This is the market value of the property on the date of the judgment. If this adjudged value is less than the amount of the taxes and other amounts awarded in the judgment, then it is the amount of the minimum bid that will be accepted at a public tax sale.

The judgment will also order the foreclosure of the tax lien.

Final judgment may be vacated A tax judgment may be vacated, even after it becomes final under the Texas Rules of Civil Procedure, if it is defective or deficient in any one of several particulars.38 This can occur only if there has not been a sale to a third party or if the purchaser at 32

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the sale consents. A tax judgment can be vacated if the property is “struck off” to a taxing jurisdiction, meaning that the taxing jurisdiction elects to take the property in lieu of satisfaction of the judgment for money.39 Other Amounts Claims for amounts other than taxes can be brought in a tax suit. These “special assessments” relate to the real property that is the subject of the tax suit and they are imposed for one or more of the following purposes: a. paving liens40 b. costs for demolition of dangerous structures41 c. weed cutting and nuisance abatement42 d. sewer improvements43 e. water district standby fees44 The special allowances afforded in tax claims do not apply to special assessments. That is, there does not appear to be a provision that a certified statement reflecting a special assessment will be regarded as prima facie proof. Likewise, there is no statutory provision that mandates the award of attorney fees in any specific amount. One may therefore require proof on these claims.

On the other hand, there is no limitation period set out in the above statutes, and therefore no limitation exists that will bar suit by a governmental entity.45 Settlement Installment agreements are permitted (but not mandated) by Texas Tax Code § 33.02. Installment agreements may not exceed 36 months in duration and do not abate penalties or interest at the rates described above. Execution of an installment agreement constitutes an admission of liability and tolls limitations.

Discounts are prohibited.46 Post Judgment Tax sale Tax foreclosure sales are conducted as are other judicial sales,47 under an order of sale issued by the District Clerk.48 A

sheriff’s deed will be issued, and a writ of possession will issue to the successful purchaser.49 Property is sold to the highest bidder for cash, provided that a bid exceeding the “minimum amount” is received. The minimum amount is the lesser of the adjudged value of the property as stated in the judgment and the amount of all taxes, penalties, interest and costs set forth in the judgment.50 If no bid for the minimum amount or more is received, then the property may be “struck off” to the taxing unit51 and the minimum bid amount will be credited against the judgment.52 The sale of a property extinguishes all tax liens, but does not affect the personal liability of a fee title owner for the payment of any amount not satisfied from the sale proceeds.53 When a taxing unit acquires title to a property through a tax sale, no tax lien attaches to the property for taxes that accrue after the taxing unit acquires title.54 Redemption right An owner whose property has been sold at a tax sale has the right to reclaim the property by paying to the purchaser the amount paid at the tax sale, plus an additional amount.55 The right of redemption persists for two years following the date of the sale for residential homestead property, agricultural land or mineral interests, and six months for other real property. If a property is redeemed within the first year following the sale, the “premium” due the buyer is 25% of the sale price; if paid during the second year after the sale, the additional amount owed is 50% of the price.

Excess proceeds If a tax sale yields funds in excess of the amount of the judgment, plus collection costs, then the excess sale proceeds are placed in the registry of the court.56 The Tax Code provides a priority ranking for the distribution of the excess proceeds.

Taxes accruing after the date of judgment and before the sale may be collected from the excess proceeds.57 Lien holders have

priority over former property owners.

To claim all or a portion of the excess proceeds, a petition must be filed within two years following the date the funds are deposited in the registry.58 The statute specifies the matters that must be asserted in the petition and the parties who are entitled to notice.59 If funds remain unclaimed after the expiration of the two year period, the funds escheat to the taxing authorities.60 Practice Hints The best course of action is to help your clients avoid a delinquent tax suit. There are a few simple things that can be done toward that end: • Make sure the appraisal district has your client’s current address. In Harris County, this can be checked at www.hcad.org. If it appears that the listed address is incorrect, a form for correcting the tax rolls can be downloaded from the same site.

• An owner of business personal property must file a rendition each year before April 15.61 Failure to timely file a rendition report incurs a penalty equal to 10% of the tax owed on the property.62 Forms for rendition reports are available through the HCAD website.

• An owner may file a “Report of Decreased Value” for property that has decreased in value since the preceding year.63 • Watch for notices of valuation sent out by the appraisal district in the early months of the year and do not miss the deadline to file a value protest, which is ordinarily May 31.

• When representing a buyer of business assets, be sure that all delinquent taxes are paid from the proceeds of the sale, or your buyer may become liable for the taxes incurred before the sale.

What is Harris County Tax Court?

The District Judges of Harris County established our tax court under Texas Tax Code § 33.71, by appointing two indi-

viduals to serve as masters in chancery to hear delinquent ad valorem tax disputes.

The tax court’s purview is limited to delinquent tax cases; it does not extend to a review of valuation issues, even if those issues have been properly brought in court.

If a jury fee is paid, the case is referred to district court for trial.64 The tax master is permitted to examine witnesses and to conduct pre-trial matters. The master reports her recommendation regarding final action to be taken to the district court.65 Thereafter, the district judge signs any order or judgment deemed appropriate.

Any party may appeal the recommendation of the tax master to the referring district court.66 Notice of the right to appeal may be given in open court or in writing by giving notice of appeal within ten days following the date of the recommendation. The notice of appeal must specify which of the tax master’s findings or conclusions are the subject of the appeal. The appeal is heard de novo in the district court.67 There is no fee or bond requirement.

Failure to appeal the tax master’s recommendation does not preclude an appeal of a final judgment to the Court of Appeals.68 The Texas Tax Code’s provisions are generally inflexible and the amount of statutory penalty and interest imposed can increase the amount of liability substantially. The best defense to a delinquent tax matter is prevention.

Michael L. Landrum is Of Counsel to O’Donnell, Ferebee, Medley & Keiser, PC. He served as one of Harris County’s Tax Masters from 1996 to 2010. He is Board Certified in the specialty fields of Civil Trial Law and Civil Appellate Law by the Texas Board of Legal Specialization.

Endnotes 1.

2.

This article does not discuss the more involved topic concerning the valuation of taxable property, exemptions, or the actual levy of taxes. Valuation issues are first addressed in administrative proceedings before the county appraisal district and its appraisal review board.

Failure to pursue valuation related complaints through the administrative process generally precludes review in court. See generally Texas Tax Code, Chapter 42.

Tex. Tax Code § 11.01.

Id. § 32.01(a).

Id. § 32.01(d).

5. Id. § 32.05.

6. Id. § 31.02(a).

7. Id. § 31.01(a).

8. Id. § 31.02.

9. Id. § 1.08.

10. Id. § 31.04(a).

11. Id. § 31.02 (b).

12. Id. § 33.01(a).

13. Id. § 33.01(c).

14. Id. § 33.48.

15. Id. § 6.30(c).

16. Aldine Independent School District v. Ogg, 122 S.W.3d 257 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

17. Tex. Tax Code § 33.48(a).

18. Id. § 32.07(a).

19. City of San Antonio v. Toepperwein, 133 S.W. 416 (Tex. 1911).

20. Robbins & Co. v. Roberts, 610 S.W.2d 854 (Tex. App.— Amarillo 1980, ref. n.r.e.)

21. Tex. Tax Code § 31.081.

22. Tex. R. Civ. P. 117a(4).

23. Tex. Tax Code § 33.44(a).

24. Id. § 33.44(c).

25. Murphee Property Holdings, Ltd. v. Sunbelt Savings Assn. of Texas, 817 S.W.2d 850 (Tex. App.—Houston [1st Dist.]

1991, no writ).

26. Tex. R. Civ. P. 244.

27. Tex. R. Civ. P. 759 (referring to suits for partition); see also Tex. R. Civ. P. 244.

28. Isaac v Westheimer Colony Ass’n., Inc., 933 S.W.2d 588, 591 (Tex. App. – Houston [1st Dist.] 1996, writ denied) (Absent strict compliance with the essential requirements of rule 244, a trial court commits reversible error) (citing Albin v. Tyler Prod. Credit Ass’n, 618 S.W.2d 96, 98 (Tex. App.—Tyler 1981, no writ)).

29. Tex. Tax Code § 42.09(b).

30. Id. § 42.09(b).

31. Id. § 33.05.

32. Id. § 33.06.

33. Id. § 33.04.

34. Id. § 42.01.

35. Id. § 33.47.

36. National Medical Financial Services, Inc. v. Irving Indep.

School Dist., 150 S.W.3d 901 (Tex. App.—Dallas 2004, no pet.).

37. Tex. Tax Code § 33.50.

38. See id. § 33.56.

39. See Tex. Tax Code § 34.01(j).

40. Tex. Trans. Code § 311.092.

41. Tex. Local Gov’t. Code Ch. 214.

42. Tex. Health & Safety Code Ch. 342.

43. Tex. Local Gov’t. Code Ch. 402.

44. Tex. Water Code § 49.231.

45. See Tex. Civ. Pract. & Rem. Code § 16.061.

46. Texas Constitution, Art. 3 §§ 51, 52; Art. 8, § 10.

47. Tex. Tax Code § 34.01.

48. Id. § 33.53.

49. Id. § 33.51.

50. Id. § 34.01.

51. Id. § 34.01(c).

52. Id. § 34.01(j).

53. Id. § 34.01(q).

54. State v. Moak, 207 S.W.2d 894 (Tex. 1948).

55. Tex. Tax Code § 34.21.

56. Id. § 34.021.

57. Id. § 34.04(c).

58. Id. § 34.03.

59. Id. § 34.04.

60. Id. § 34.03(b).

61. Id. § 22.01.

62. Id. § 22.28.

63. Id. § 22.03.

64. Id. § 33.76.

65. Id. § 33.71.

66. Id. § 33.72.

67. Id. § 33.74.

68. Id. § 33.74 (i).

3.

4.

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Family and Community The Houston Lawyer talked to new HBA president Brent Benoit about his legal career, his family, and his focus on issues that impact the profession and our community.

THL: Where were you born and where did you grow up?

Benoit: I was born in Baytown and grew up there. I attended Robert E. Lee High School in Baytown.

THL: Tell me about your family.

Benoit: I come from a family of five kids. My father, Ronald Benoit, is an engineer who now works as a consultant for CSC. My mother, Brenda, is a former teacher. The last several years of her career she taught at an alternative school in Baytown where students with special issues such as disciplinary problems or teen mothers were educated.

My parents are terrific people who have constantly sacrificed for their children.

When I became involved in debate they lobbied the school board to increase funding to the debate program. They were successful and we were one of the few schools that had the resources to travel to national tournaments. If they had to drive all night or

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travel across the country to be at a debate tournament or a soccer game or anything else, they always did it. They have always been focused on providing the best opportunities for their children, and I have greatly benefited as a result.

I also had two sets of terrific grandparents. Unfortunately my grandparents on my Dad’s side have passed away.

Polay and Beatrice Benoit were about as Cajun as you could possibly be and were two of the nicest people I have known.

Adrian and Naomi Bowers are my grandparents on my Mom’s side. They are 92 and 91 and still going strong. We spend every Sunday after church with them for lunch along with our extended family, where the crowd frequently can be 20, 30 or more people.

I have three brothers and a sister. Mom and Dad kept having kids until they finally had a girl on the fifth try. I am the oldest.

My brother Brad is a partner at Bracewell & Giuliani. Brian is a process technician at Exxon.

Brandon is a partner at the Baytown law firm of Reid Strickland & Gillette. My little sister, Brittney Pinkerton, is a mother of two newborn twins.

As for my immediate family, I am married to Christy Benoit. Christy attended West Texas State University (now West Texas A&M, much to my

discomfort) in Canyon, Texas and received a Masters Degree in Library Science from the University of North Texas. Christy taught school and for several years taught in a special program called Reading Recovery, designed to assist elementary kids that are having difficulties learning to read. She also served as a school librarian for several years. She is now a very busy stay at home mom.

She has served as the president of the PTA at our kids’ school for two years and is a member of the Service League in Baytown.

My oldest daughter, Bryn, is 12 years old and attends Cedar Bayou Junior High School in Baytown. She plays the violin and loves to play volleyball, tennis, and basketball. She also enjoys writing. Bryn is very competitive, which she probably inherited from me.

My youngest daughter, Brooke, is 9 years old and attends Stephen F. Austin Elementary in Baytown. She plays the cello and also loves to play volleyball, tennis and basketball. She is very into bugs and animals. Most people say that Brooke’s personality is virtually identical to mine. I have to admit sometimes it is a little spooky how similar she is to me.

My family is a huge part of my life.

There is no way I could practice law and handle the various issues that arise in a legal career without their support and encouragement.

they were on the right side of a disagreement appealed to me. A legal career allowed me to help people in a profound way and to use the advocacy skills that I had developed.

THL: Where did you go to college and law school?

Benoit: I attended Houston Baptist University and received a BBA in Economics and Finance, graduating summa cum laude in 1993. I went to HBU because it had an active debate program and I was able to go on a full scholarship. It was a great school with terrific teachers (no TAs) and it allowed me to continue to pursue debate, which I did for four years. Some of my college coaches are now attorneys. Matt Caligur was a coach and good friend, and he is now a partner at Baker Hostetler.

After HBU, I attended law school at the University of Texas. I graduated in 1996 with high honors. I was a Chancellor and a member of the Order of The Coif, as well as a member of the Texas Law Review. I was very active in the trial advocacy programs, where our teams won several awards at various national tournaments, including the ATLA National Mock Trial Tournament and the NITA Tournament of Champions. I could not have chosen a better place to attend law school. Plus, I am a lifelong, die hard Texas Longhorn fan.

I rarely miss home games and travel to quite a few away games.

THL: What are your areas of specialty and with what firms have you worked in your legal career?

Benoit: After graduating from law school, I went to work at what was then Liddell, Sapp, Zivley, Hill & LaBoon, LLP. I was a litigation associate for about three years when John Cornyn was elected Texas Attorney General and offered me the position of Special Assistant Attorney General. It was an offer that was just too good to pass up. So, in 1999 I left Liddell Sapp and went to Austin.

As Special Assistant Attorney General, I represented the State and its various agencies in high-profile litigation spanning a variety of issues, including antitrust, voting rights, and significant state contract matters. I also had the opportunity to work with a number of state lawmakers on important legal and legislative issues. I worked closely with Cornyn, Andy Taylor and a host of very talented attorneys such as the late Greg Coleman, Julie Parsley (a fellow Baytonian who went on to serve as a PUC Commissioner), Linda Eads, Michael McCaul (now a U.S. Congressman) and many others.

After leaving the Attorney General’s office, I was fortunate to be able to return to what

THL: How did you become interested in law as a career?

Benoit: Growing up, I always thought I would be a surgeon. In junior high, we held a debate in science class. I cannot tell you what we debated, but through that experience I became very interested in oral advocacy. That led to a debate career that spanned both high school and college. As a result, I became less interested in being a surgeon and more interested in a career that would involve advocacy. In addition, the notion of representing clients who believed that

was then Locke Liddell & Sapp, LLP and what is today Locke Lord LLP. I am now a partner specializing in complex commercial litigation, particularly securities litigation matters, internal and governmental investigations, and corporate governance issues.

THL: Who were your mentors?

Benoit: I have been lucky to have many really talented mentors. Early on in my career, I worked closely with Andy Taylor, a gifted and extremely hard working attorney. Andy not only was a mentor, but became a close friend. If it were not for him, I would not have been introduced to the oppor-

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tunity to work at the Attorney General’s office. I was also able to work with Jess Hall, who was one of the most talented trial attorneys I have ever seen. I also worked closely with Judge John Hill. I think that probably needs no elaboration. He was a legend, but he was an even better person. When I was considering whether or not to go the Attorney General’s Office, he pulled me into his office and closed the door and said “Don’t you ever tell anyone I told you this, but you have to go.” It was the single best career advice I ever received. Of course, the firm back then was led by Bruce LaBoon and Walter Zivley. They were great lawyers but they were fantastic people.

The culture they fostered, one of hard work but keeping the more

important things in life in perspective, is the reason that I accepted a job at Locke Liddell.

The mentor that I have spent by far the most time with is Craig Weinstock.

Craig has an amazing ability to think through complex matters and craft winning strategies. We have worked closely together for years and he is a very good friend. I owe a tremendous debt to him.

THL: How did you get interested in volunteering with the bar?

Benoit: I had been involved off and on with the Bar during my early career, but that was obviously interrupted when I went to Austin. It was not long after I returned that the firm asked me to become more involved in the HBA and I did. It 36

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was a great decision and has been a tremendous enhancement to my practice. I have made more friends than I can count as a result, but the best thing is being involved in the important projects of the HBA. THL: What do you think is the role of the organized Bar in society today?

Benoit: We are living in a time when the current group of attorneys probably views the Bar through a different lens than prior generations.

There are a lot of organizations that compete for our time and money, but I firmly believe that there is no better organization for an attorney to join. The other organizations are important and we should support them, but the HBA is especially worthy of our support.

As members, we benefit from networking, CLE programs, and a host of other member-focused projects and initiatives. In addition, the Bar performs an incredible amount of community service that is critical to our profession. There are too many negative perceptions about the practice of law. No organization does more to combat that harmful and erroneous perception than the HBA. As members, we not only reap the benefits to our practice, but we get the opportunity to work shoulder to shoulder with other attorneys to serve the community and dispel the awful myths and stereotypes regarding attorneys.

THL: What do you see as the role of the president in the Houston Bar Association?

Benoit: : It is a little intimidating when you think about the past presidents of the HBA. I see my role as multifaceted.

I am responsible for thinking about the future issues that face our profession and our Bar, and leading the organization to confront these issues in a proactive way.

I have an obligation to make sure that the HBA does everything it can, consistent with its mission, to serve our mem-

bers and enhance their practices. I also have an obligation to lead the Bar in its efforts to reach out and serve our community in a way that is both beneficial to those that we serve and rewarding to our members.

THL: What areas will you focus on during your administration?

Benoit: In addition to enhancing service to our members, we will focus on four areas of community service. We will attack the problem of hunger in Houston by partnering with the Souper Bowl of Caring to organize a food and money drive leading up to the NFL’s Super Bowl. We will also encourage our members to volunteer for the Houston Food Bank or local soup kitchens.

We will build on the tremendous medical and legal resources we have to establish a Health Access Clinic through our Houston Volunteer Lawyers Program, helping low-income families with legal issues that could prevent them from getting the health care they need.

We are going to do our part to replenish some of the millions of trees that Houston lost in last year’s drought.

Through our Lawyers Against Waste Program, we will raise funds and recruit volunteers to plant at least 1,000 trees in Houston.

And we will work to educate our members and the community about a horrific problem in Houston – human trafficking. We will use our resources to raise awareness and point out the legal

and practical ramifications of forced servitude. I have written more about all of these programs in my President’s Message in this issue, but that will give you an idea of the very busy year ahead.

THL: What do you think has changed most about the practice of law since you became licensed?

Benoit: The role of technology in the practice of law. When I started, cell phones were not common and iPhones did not exist. If you were out of the office and someone wanted to get you, it was usually through a pager. Discovery was all paper; now it is mostly electronic.

Research was usually done in a library; now it is largely performed on computers. As an associate, there were several times when I drove long distances to file documents. Now it is usually the case that you can only file documents electronically. The role of technology has exploded and it has profoundly changed the practice of law.

like to bring out in this interview that is important to you?

Benoit: I want to encourage everyone to get involved with the HBA this year. We have something literally for everyone. If you cannot find something that interests you, you are probably not interested in very much. We do a lot, but we can do so much more with additional members.

So, get involved, join our sections, meet your fellow attorneys, and invite all of your friends to join you.

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THL: What do you like to do outside of the practice of law?

Benoit: I am very active at church and usually preach at least once a month. I am an avid sports fan and spend probably too much time attending sporting events. The good news is that I have brainwashed my daughters to be sports fans as well. I love to travel and try to do that as much as my schedule will allow.

And, of course, I spend a bunch of time with my family.

THL: Are you involved with other professional or community organizations?

Benoit: I am a member of the M.D. Anderson Board of Visitors. My wife and my mother are both former patients and I have a deep affection for that institution. I am also on the Board of Lone Star Legal Aid, which provides pro bono services throughout Southeast Texas. I am also on the Board of Directors of my firm.

THL: Is there anything else you would

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Benoit Takes Office as HBA President B Brent Benoit presents Denise Scofield with recognition for an outstanding year.

The Benoit family -- Brooke, Christy, Brent and Bryn

Brent Benoit, Christy Benoit, Denise Scofield and John Scofield.

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rent Benoit of Locke Lord LLP took up the gavel as the 2012-2013 president of the Houston Bar Association at the organization’s Annual Dinner Meeting, held May 24 at River Oaks Country Club. Benoit succeeded Denise Scofield of Morgan, Lewis & Bockius LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Scofield presented the President’s Awards to outstanding committee and program chairs for 20112012, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar year.

Photos by Fred Provada

Brent Benoit, Christy Benoit, Ansley Buttram, president of the Houston Bar Association Auxiliary, and Stephen Buttram

www.hba.org

50-year member Larry Funderburk and his wife, Linda Funderburk.

50-Year Lawyers

50-year member Floyd Guest and his wife, Nola Guest.

50-year member Raymond Hofker.

50-year member Joe Maida and his wife, Jewell Maida.

50-year member Jack Ogg and his daughter, Kim Ogg.

50-year member Mitchell Glassman and his wife, Donna Scott.

50-year member Stephen LeSatz and his wife, LaDonna LeSatz.

50-year member Ben Turner and his wife, Ika Turner. thehoustonlawyer.com

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President’s Awards and Special Recognition Denise Scofield presented the 2011-2012 President’s Awards and Special Recognition Awards to outstanding committee chairs and program leaders during the HBA’s Annual Meeting.

The HBA honored RR Donnelley Company for outstanding service and support to the Houston Bar Association for charitable events.

Claudine R. James and Elaine S. McAnelly were honored as co-chairs of the AIDS Outreach Committee.

The Hon. Michael C. Massengale was honored as chair of the County Law Library Committee.

Todd Frankfort, the Hon. Jane Bland and Lionel M. Schooler were honored as co-chairs of the Historical Committee.

Trey Strake III was honored for outstanding service and support of the Houston Bar Association in real estate matters.

Daniel Leightman was honored as chair of the Senior Lawyers Forum.

Andrew Pearce, Sherry Bankhead and Simon Mayer were honored as co-chairs of the Eikenburg Law Week Fun Run Committee.

Scott A. Durfee and Margaret Downing were honored as co-chairs of the Law & the Media Committee.

Bob Devlin and Mickey Baden were honored for their service to the Veterans Legal Initiative.

The Hon. Joseph J. (Tad) Halbach was honored as chair of the Harris County Bench Bar Pro Bono Awards Committee.

Alistair Dawson was honored for outstanding service to the Houston Bar Association.

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A Profile in professionalism

Alissa Rubin Gomez Executive Director, HBA Houston Volunteer Lawyers Program

Professionalism is... ...marveling at our system, even when it rules against you. ...fiercely defending your integrity through your actions. ...admitting that my mother’s favorite expression always applies: “Two wrongs don’t make a right.” ...refusing to accept the status quo if it is unjust to anyone. ...telling yourself each day: “I am only one; but still I am one.

I cannot do everything, but still I can do something. I will not refuse to do the something I can do.” –Helen Keller

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COMMITTEE SPOTLIGHT

LegalLine – Providing the Public with Direct Access to Attorneys

By Keri D. Brown • “How do I divorce my commonlaw wife?”

• “Can my landlord refuse to fix a hole in my ceiling?”

• “How do I probate my mother’s will?”

• “How can I get a criminal conviction removed from my record?”

• “Can you help me find a lawyer?”

The Houston Lawyer

T

hese are just a sample of the questions that an HBA volunteer might encounter on a typical Wednesday evening volunteering for LegalLine. LegalLine is a public service program of the Houston Bar Association that has served the community since 1985. On the first and third Wednesday from 5 p.m. to 9 p.m., volunteers from the legal community staff the phone lines at the HBA office, answering questions from callers about a variety (a sometimes never-ending variety!) of legal issues.

A LegalLine volunteer’s responsibility is to answer legal questions, give brief legal advice, and provide additional resources or referrals if the phone call cannot resolve the caller’s question. Because of liability issues, the volunteer attorneys are prohibited from providing their name to callers or making referrals to individual attorneys or law firms.

Often, the caller will need more legal assistance than the volunteer can provide in a brief phone call. In that situation, the volunteer attorney will make a referral to an organization that may be able to assist the caller. The most common referrals are

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to the HBA’s Houston Volunteer Lawyers Program, a legal services provider for clients who meet income- and mattereligibility requirements, and the Houston Lawyer Referral Service, a nonprofit organization that makes referrals at no cost to those who use its service.

The types of legal issues most commonly asked are in the areas of family law, consumer law, criminal law, landlord/tenant questions, wills and probate matters, and business matters.

Because family law questions are the most common, the HBA’s Family Law Section provides a volunteer for every LegalLine to serve as a resource for volunteer attorneys who may not be as familiar with the intricacies of family law.

LegalLine volunteers come from all walks of the legal profession. Each HBA Section and nearly every HBA Committee is required to recruit volunteers to staff at least one shift of LegalLine during the bar year. (The LegalLine shifts are 4:45 p.m. to 7:00 p.m. and 6:45 p.m. to 9:00 p.m. on the first and third Wednesday of every month.) In addition, law firms and inhouse lawyers at businesses throughout Houston provide much-needed volunteers. LegalLine accepts volunteers for the

shifts in groups of 4 or 8 attorneys.

The LegalLine Committee is made up of six co-chairs coming from six of the large Houston law firms. Their responsibilities are to recruit law firms, businesses, and the HBA Sections and Committees to fill available slots on the LegalLine calendar and to coordinate locating volunteers when there are last-minute staffing needs.

If you are interested in volunteering for LegalLine and are not yet on the 2012-2013 bar year calendar, you can contact Lucy Fisher (LucyF@hba. org) or Natasha Williams (NatashaW@ hba.org) via email or by calling the HBA office at (713) 759 1133. In addition to filling shifts of 4 or 8 volunteers, HBA maintains a list of individuals who are willing to be contacted for (no obligation) last-minute shift-filling needs. Lucy and Natasha await your email or phone call!

Keri D. Brown is a Senior Associate in the Private Clients Section at Baker Botts L.L.P. and the Editor in Chief of The Houston Lawyer. She also recently passed one of the six LegalLine co-chair reins to Louie Layrisson at Baker Botts, who also is happy to hear from you if you are interested in volunteering for LegalLine.

OFF THE RECORD

Kent Newsome’s

Country Road

By Julie Barry

S

uper Lawyer, Kent Newsome, has been an accomplished real estate attorney for more than 25 years—not quite as long as he has been a song writer. Kent began writing songs while he was in junior high school in his hometown of Cheraw, South Carolina. As he describes it, Kent’s initial attempts at writing bad poetry to attract girls evolved into songwriting for his friends. It was some time during the mid 70’s that his first song was recorded by his high school friend, Joe Middleton. While “Princess” clearly is not in the top 100 of Kent’s favorite songs that he has written, it serves as a milestone for him today as he sets about collaborating with Joe Middleton again in writing and recording six new songs for Middleton’s band, Idlewilde South. They are currently recording a new album at a recording studio in North Carolina.

In 1977, Kent also formed Err Bear Music, Inc. (BMI), his publishing company which continues to administer his catalog of songs. You can visit www.errbear.com to review the lyrics and listen to demos of hundreds of Kent’s works. Fans of Newsome can also follow him on his “Tech, Music and Life Blog” found at www.newsome.org. There, you will discover more about Kent Newsome than you could possibly imagine, including his favorite bands (the Wrinkle Neck Mules, for one), his thoughts about social media and the internet, and the fact that he is a “cat-lover.”

Kent’s songs are a mixture of traditional and alternative country, with a little bit of rock and roll mixed in. His song, “Bound and Determined” was the title track for the 2000 Chicago-area country record album of the year. A newer work, “Ghosts” is reminiscent of a trip back home to South Carolina. Writing songs for Kent is “like free therapy.” It enables him to work through is-

sues that develop in his personal relationships without explosive confrontations. But he confesses that song writing has become much harder as he gets older. “When you are young, you go out to bars, chase girls, fail to catch them and get your heart broken—all very conducive to great country songs. Now, I am happily married, with three great kids and a terrific career as a real estate lawyer, none of which makes for a good song. I have to be a lot more creative in coming up with a good song and think outside of my life.”

Kent describes the writing of one of his recent songs, “Country Mile,” as a perfect example of his new-found creativity. While driving downtown to work one morning, he was passed on the highway by a cute young girl in a cowboy hat, driving a pickup truck the perfect inspiration for a song: There goes a girl In a cowboy hat I wish I had A girl like that If she drives A pickup truck Wouldn’t that be A stroke of luck As chair of Greenberg Traurig’s Houston real estate practice, Kent Newsome has no delusions of getting rich as a songwriter.

“My royalty checks used to be in the three figures. Now they are in the two figure range,” chortles Kent. For now, he is perfectly happy closing real estate deals for a living, going to swim meets, volleyball games and triathlons with his kids, writing songs on the side, and only dreaming he is a member of the Grateful Dead.

Julie Barry, attorney at law, focuses on commercial transactional law, representing business owners, investors, lenders and developers. She is an associate editor for The Houston Lawyer. thehoustonlawyer.com

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LEGAL TRENDS

National Federation of Independent Business v.

Sebelius and Its Effect on U.S. Health Care

By Sheryl Tatar Dacso

The Houston Lawyer

T

he decision of the U.S. Supreme Court (“the Court”) in National Federation of Independent Business v. Sebelius, announced on June 28, 2012, turned politicians and politics across the country on its head. Even those supporting the Affordable Care Act (“ACA”) thought that the individual mandate, the centerpiece of the controversy, would be ruled unconstitutional. In a surprise decision, Chief Justice Roberts sided with the four [traditionally] liberal Justices Ginsburg, Breyer, Sotomayor and Kagan to join in a judgment finding: (1) the federal Anti-Injunction Act does not bar Constitutional challenge; (2) Congressional authority is limited to that expressly provided to Congress in the Constitution; and (3) the individual mandate is upheld under Congress’s authority to tax although this was characterized as a penalty by Congress. On the other hand, the requirement that states had to participate in the expanded Medicaid program to continue to receive funding was clarified to preclude them from losing their existing Medicaid funding if they declined to participate in the expansion.

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Probing the Judgment The Anti-Injunction Act protects the Government’s ability to collect revenue and prevents taxes from being challenged until after they are paid. The Court reasoned that Congress had intended for the “shared responsibility payment” imposed on those individuals that decide not to obtain health insurance to be considered a penalty and not a tax. Specifically, the Court noted that there are other provisions contained within the ACA where Congress explicitly labels certain extractions as “taxes.” Therefore it should be presumed that Congress intended for this payment to be treated differently.

Thus, the decision by Congress to label the payment as a penalty prevented the Anti-Injunction Act from applying to the suit and allowed the Court to continue to address the merits of the case.

The next issue the Court addressed was whether Congress had the authority to enact the individual mandate. The Government proposed two theories to support its position that Congress did in fact have the authority to do so: first, pursuant to the Commerce Clause, or in the alternative, pursuant to Congress’s power to tax. In response to the Government’s Commerce Clause argument, the Court found that Congress’s power to regulate commerce presupposes that there is already something in existence to regulate. Given the expansive nature of cases where the Court has construed the scope of the Commerce Clause, the Court reasoned that these were all concerned with an “activity.” In regards to the individual mandate, the Court found that instead of regulating activity already in existence, it would instead compel individuals to purchase health insurance and the failure to do so would then affect interstate

commerce. The Court reasoned that allowing Congress to regulate what individuals are not already doing would exceed Congress’s Constitutional authority despite the Government’s arguments that the Necessary and Proper Clause provided Congress with the power to enact the individual mandate as a crucial part of an overall plan to regulate the economy. The Court disagreed because it does not involve an exercise of authority that stems from an enumerated power.

The Court then turned to the Government’s argument that the mandate could be upheld pursuant to Congress’s taxing power. The Government in proposing this theory asked the Court to read the mandate as imposing a penalty on those who fail to purchase health insurance rather than a command to purchase health insurance. The Court undertook to determine whether this was a reasonable reading of the statute and found that even though the “shared responsibility payment” is not labeled as a tax in the ACA, this is only instructive in terms of the Anti-Injunction Act and not whether it is a valid exercise of Congress’s power to tax. Therefore, the Court focused on the substance of the payment and found that because this payment will be compared to the actual cost of purchasing health insurance, there is no scienter requirement, and because it is collected by the IRS via the normal means of taxation, it is a tax, and not a penalty. Thus, the individual mandate was upheld pursuant to Congress’s taxing power.

Finally, the Court addressed the constitutionality the of the Medicaid expansion. The Court reasoned that the Spending Clause permits Congress to establish joint federal-state programs, but the legitimacy of these programs for constitutional purposes turns on whether the State is a voluntary and knowing participant to be consistent with our system of federalism. Here, the Court agreed with the States’ arguments that Congress’s

LEGAL TRENDS

threat to withhold existing Medicaid funds if States refused to participate in the expansion would be coercive. Furthermore, the Court disagreed with the Government’s claim that expansion should be viewed as a modification of the existing Medicaid program because, under ACA, it undergoes a transformation into a program that covers an entirely new population. The Court concluded that, pursuant to the Spending Clause, Congress could offer these funds associated with Medicaid expansion to the States and require them to comply with the conditions attached to their use, provided the State elected to participate. However, the Court found as unconstitutional the provision in ACA that allowed the Secretary of Health and Human Services to withhold a State’s existing Medicaid funding if the State elected to not participate in the expansion, but the Court was able to sever the unconstitutional provision as permitted by this section, thereby preserving the rest of the ACA. Effect on Health Care Delivery Despite the decision of the Court, several important measures have been set in motion. These include (1) provider consolidation/merger activity; (2) development and expansion of accountable care and other integrated provider organizations (“ACOs”); (3) use of ACOs as new insurance products by health plans; (4) performance and quality based reimbursement and incentives; and (5) health information/data sharing and management, all of which would have continued to evolve.

Sheryl Tatar Dacso, J.D., Dr. P.H., a partner in the Houston office of Seyfarth Shaw, LLP, has represented health care organizations, hospitals and physicians for over 30 years.

She is Board Certified in Health Care Law by the Texas Board of Legal Specialization and certified in health care compliance by the Health Care Compliance Association. The

author wishes to thank Courtney Duffy, 3L at Loyola University Law School in Chicago, Illinois for her work on this article.

Arizona v.

United States A State’s Role in Immigration Enforcement

T

By Marcos Gemoets exans understand the importance of sovereignty, particularly when it comes to protecting Texans and their land. The State holds little reservation in challenging efforts by the federal government to expand its role in what Texans believe to be state issues. However, when it comes to immigration, the federal government reigns supreme, as affirmed by the U.S. Supreme Court on June 25, 2012, in its landmark decision, Arizona v. United States.

Immigration, in particular undocumented migration, remains a polarizing political, economic and social issue.

States like Texas, New Mexico, Arizona and California, which share a southern border with Mexico, also share unique problems caused by the flood of undocumented migration passing through into the United States. In response to what is perceived to be an adverse impact on the economies, security and welfare of these states caused by this migration, several states have enacted laws and regulations intended to deter immigration and enforce federal immigration laws at a state level. In 2010, Arizona enacted The Support Our Law Enforcement and Safe Neighborhoods Act, commonly referred to as S.B. 1070, citing a need

to address an increased population of undocumented foreign nationals in the state and the economic and social impact caused by their presence. The Arizona statute established criminal penalties for immigration violations and authorized state law enforcement to detain foreign nationals for immigration violations.

Arizona sought to stand in the place of federal immigration officers it considered unable or unwilling to detain unauthorized migrants in the state.

The Constitution authorizes the federal government to establish a uniform naturalization process and create immigration laws that are consistent with the country’s domestic and foreign policies. The Immigration & Nationality Act (“INA”), providing the general framework for the implementation and enforcement of immigration laws in the United States, was enacted in 1952.

Congress has amended the INA to include additional benefit and enforcement provisions, including a major overhaul of removal grounds in 1986 and 1996. These amendments introduced employer sanctions for willful employment of unauthorized foreign workers and enhanced grounds for the removal of foreign nationals. In Arizona v. United States, the U.S. Supreme Court affirmed the federal government’s role in immigration law, stating that “[i]mmigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws... It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national government, not the 50 separate States.”

The key issue in Arizona v. United States was whether states may regulate immigration within their respective borders, thehoustonlawyer.com

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LEGAL TRENDS

The Houston Lawyer

or whether the federal government’s primary authority preempts state action.

The Supreme Court reviewed four provisions of S.B. 1070, striking down three provisions as exclusively within the federal government’s purview; however, leaving the fourth provision subject to further judicial action if its application were to conflict with federal law. In two of the provisions, Arizona’s S.B. 1070 enacted criminal penalties specifically directed against foreign nationals. Arizona sought to make misdemeanor offenses for foreign nationals who fail to register their immigration status with the federal government or carry proof of their registration. Furthermore, S.B. 1070 created misdemeanor offenses for foreign nationals seeking or engaging in employment without authorization. The Supreme Court affirmed that the federal government’s interest in a uniform immigration program precluded state criminal penalties that conflict with federal enforcement strategies. Accordingly, the Supreme Court found S.B. 1070’s criminal provisions were preempted by federal law.

In addition to the criminal provisions, S.B. 1070 sought to expand the authority of Arizona law enforcement officers to detain foreign nationals. State law

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enforcement was already authorized to communicate with federal immigration officers following an arrest, if determined that the detained individual is a foreign national without authorization to be in the United States. However, S.B. 1070 expanded Arizona law enforcement’s authority, providing that an officer could simply arrest foreign nationals believed to be removable from the United States. The Supreme Court struck down this provision as an intrusion on the federal government’s authority to remove foreign nationals from the United States.

The fourth provision of S.B. 1070 addressed by the Supreme Court required law enforcement officers to communicate with federal immigration officials to determine the immigration status of any person detained. The Supreme Court determined that it does not consider it inappropriate for state law enforcement to communicate with the federal government; however, if unreasonably prolonged detention arises from this communication, then a constitutional violation may exist. Accordingly, the Court concluded that it was premature to evaluate whether the application of the fourth provision would conflict with federal law and left open the matter for

further judicial review.

Texas, unlike Arizona, has not enacted enforcement laws targeting foreign nationals. It has, however, raised these issues in prior legislative sessions.

In 2011, Texans considered whether to criminalize the unauthorized employment of foreign nationals or whether to require law enforcement to inquire as to the immigration status, similar to some of the elements of Arizona S.B. 1070.

Arizona v. United States may persuade legislators in the upcoming legislative session to reconsider state efforts to implement immigration enforcement laws that conflict with federal immigration policies.

Arizona v. United States affirms the federal government’s right to establish a uniform national program to determine the entry requirements for foreign nationals.

Marcos Gemoets, owner of The Law Office of Marcos Gemoets, P.C., has more than ten years of experience representing immigration clients, including immigrant families, U.S.and foreign-based corporate clients, and individuals facing removal from the United States. He is board certified in Immigration & Nationality Law by the Texas Board of Legal Specialization.

Media Reviews

A Marked Heart

By David George Ball Jones McClure Publishing, 2010 Published by: iUniverse, Inc., Bloomington

A

Reviewed by Angela L. Dixon Marked Heart is a wonderful autobiography by David George Ball, written about the author’s life and the trials and triumphs he has faced. Ball, who went on to serve as Assistant Secretary of Labor during George H. W. Bush’s administration was the son of a Baptist minister and missionary who was born in Gloucester, England.

A Marked Heart begins with Ball discussing his parents and how they met, and then goes on to detail his childhood memories growing up in Gloucester. He recalls memories of American soldiers staying in his home during WWII after the attack on Pearl Harbor. Ball was particularly fond of one Corporal who spent time talking to him about America. He was proud his family took an active role in helping the soldiers.

Ball writes this book very candidly, sharing many details about his feelings and beliefs. It is easy to become engrossed in it. Ball often discussed how his “mum,” as he called her, had a plan for his life early on. She decided he was destined to be a minister like his father, and indeed Ball did travel down this path faithfully until

an encounter with Dr. Martin Luther King Jr. changed his life forever.

Ball, who immigrated to the United States with his family at the age of 17, attended the Chicago Moody Bible Institute, where his father also studied years earlier.

Ball sometimes struggled to fit in but eventually found his place. While his “mum” had his future planned out, he himself often wondered if he was meant to do something more than the ministry. Ball ultimately decided to apply to Yale to continue his ministry studies and was accepted, much to his mum’s resistance. Ball excelled in his studies and found his place among student groups. One such group he organized, the Undergraduate Lecture Committee, brought in speakers to address the student body at Yale about the relevant social issues of the time.

Ball learned of Dr. King from Yale’s associate chaplain and, intrigued by his efforts for civil rights in the South, decided to invite the then-relatively unknown Dr. King to speak.

Accepting the invitation, Dr. King spoke to a crowd of 2,000 students on January 14, 1959. After the lecture, Dr. King met with students including Ball and answered questions about his civil rights work. Ball learned that January 15 was Dr. King’s birthday and had a small celebration in his honor.

This encounter with Dr. King set the stage for the rest of Ball’s life. Ball said that Dr. King seemed to combine political activity with a life of integrity, peace and determination. He decided after that visit that he wanted to be like Dr. King. Instead of following his mother’s plan to become a

minister, Ball switched his major to political science and decided to go to Columbia Law School. Throughout his life, Ball revisited his time with Dr. King and reflected on how he would make a difference with his life and live the way Dr. King did. Ball later graduated from Columbia and landed a pristine job at a Wall Street law firm.

While his professional life prospered, Ball experienced some tragic losses in his personal life. While I am tempted to share some of those losses, I will refrain and allow readers to discover them for themselves. He often discussed how the support of his family, especially his mother, father and wife, sustained him during those difficult times. But despite the adversity, Ball never relinquished his desire to help others. This desire and determination ultimately led him to his work with the first 401(k) plan. Before Ball’s work, pension plans were non-transferable. When an employee left his employer, he also left behind all the money earned in his pension plan. Ball felt there was a better way to assist employees by utilizing 401(k) plans that allowed employees to have more flexibility. Today, more than 70 million Americans have 401(k) plans. Ball’s dedication to this work ultimately led to him being appointed by President George H. W. Bush as the Assistant Secretary of Labor for Pensions and Welfare benefits.

Ball’s memoir is an account of one man’s desire to make a difference with his life and to serve others. The book is humorous at times and heart wrenching at others because it shows one man’s struggle to maintain his livelihood as well as keep his family intact. A Marked Heart is a great story of accomplishment, and Ball’s experience proves that one person can make a difference and impact the lives of many.

Angela L. Dixon is an attorney with a civil practice, focusing on wills and probate, landlord/tenant disputes, and personal injury law. She is an associate editor for The Houston Lawyer. thehoustonlawyer.com

July/August 2012

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placement service

PLACEMENT POLICY

The Placement Service will assist HBA members by coordinating placement between attorneys and law firms.

The service is available to HBA members and provides a convenient process for locating or filling positions.

1. To place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.

2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner.

3. In order to promote the efficiency. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to Pplacement Coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002 or e-mail Brooke Benefield at BrookeE@hba.org.

Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.

PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. Issue If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office, 713-759-1133.

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Positions Available

Positions Wanted

5080 SEEKING ASSOCIATE LEGAL COUNSEL for Houston public pension fund. Approx. 4 years’ experience with retirement plans, employee benefits, administrative law, institutional investing or Texas local government law required. Background checks and drug testing. EOE.

2062 Very Experienced Trial Attorney intimately familiar with the mechanics and operation of the Commercial Mortgage Backed Securities (CMBS) industry, including the securitization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, 5094 ESTATE PLANNING Rating Agencies, Trustees, Ser– PROBATE ATTORNEY. vicers and Special Servicers.

SUGAR LAND. Board certi- Looking for in-house position. fied attorney, 33 year Houston area practice serving Harris/ the serves you Fort Bend counties, seeking associate attorney with adEnhance your vanced estate planning and probate experience. practice

HBA

If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office:

713-759-1133

thehoustonlawyer.com

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