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Mandamus in Family Law What Ever Happened to Jury Trials? Comparing Collaborative and Litigation Divorces

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Features ON THE COVER: Federal Public Defender Maureen Franco By Stephen H. Gordon

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What Ever Happened to Jury Trials? The Decline Continues By Thomas J. Smith

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Mandamus in Family Law By Robinson C. Ramsey

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Comparing Collaborative and Litigation Divorces By Harry L. Munsinger and Michael E. Gallery

Departments

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Feedback

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Federal Court Update By Soledad Valenciano and Melanie Fry

November-December 2015 On the Cover: Federal Public Defender Maureen Franco and her two children, Henry and Ann Marie. Photo by Hugh McWilliams. Photo contributions from: Maureen Franco (p. 5) Archives of the San Antonio Lawyer are available on the San Antonio Bar Association wesite, www.sabar.org. San Antonio Lawyer LV DQ RIÀFLDO SXEOLFDWLRQ RI WKH 6DQ $QWRQLR %DU $VVRFLDWLRQ 6HQG DGGUHVV FKDQJHV WR WKH %DU $VVRFLDWLRQ DGGUHVV DW WKH WRS RI SDJH 9LHZV H[SUHVVHG LQ San Antonio Lawyer DUH WKRVH RI WKH DXWKRUV DQG GR QRW QHFHVVDULO\ UHÁHFW WKH YLHZV RI WKH 6DQ $QWRQLR %DU $VVRFLDWLRQ 3XEOLFDWLRQ RI DQ DGYHUWLVHPHQW GRHV QRW LPSO\ HQGRUVHPHQW RI DQ\ SURGXFW or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to jimmya@sabar.org. Copyright ©2015 San Antonio Bar Association. All rights reserved.

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Contents

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Fourth Court Update: Drug and Alcohol Monitoring Considerations in Family Law Courts By Justice Jason Pulliam

Lawyer San Antonio

The San Antonio Bar Association 'RORURVD 6DQ $QWRQLR 7H[DV )D[

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2ÍżFHUV 'LUHFWRUV President James M. “Martyâ€? Truss President-Elect Bobby Barrera Vice President Beth Watkins

Secretary 6DQWRV 9DUJDV Treasurer Tom Crosley Immediate Past President Thomas g. Keyser

Directors Dave Evans Dawn Finlayson Hon. Rebeca C. Martinez Hon. Jefferson Moore

Hon. Richard Price Christine Reinhard Mark Sessions Ty Sheehan

Mexican American Bar Association -DLPH 9DVTXH]

San Antonio Bar Foundation James M. “Marty� Truss

San Antonio Young Lawyers Association J. Barrett Shipp

State Bar of Texas Directors Andrew L. Kerr Hon. Rebecca Simmons

YAY!!! Everyone is enjoying the magazine/article! — B.J. “Red� McCombs

Bexar County Women’s Bar Association Executive Director Marissa Helm Jimmy Allison San Antonio Black Lawyers Association Stephanie Boyd

Departments Editor Leslie Sara Hyman

Managing Editor Erin Boren

Editor in Chief Emeritus Hon. Barbara Nellermoe

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Board of Editors Sara Murray, Chair

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Sherry M. Barnash Barry H. Beer Charles Butts Merritt Clements Gayla Corley 5\DQ 9 &R[ Andrea Crouch Paul Curl Cristina Tijerina DeLeon Jane Rankin Dure Tanya Feinleib Jose Galvan Shannon Greenan Gilbert S. Gonzalez Stephen H. Gordon Per Hardy Sam Houston Leslie Sara Hyman Rob Killen

Rob Loree Burke C. Marold Hugh McWilliams Harry Munsinger Curt Moy Hon. Barbara Nellermoe Steve Peirce Donald R. Philbin Rob Ramsey Yanira Marie Reyes James Rodriguez $OH[LV $GDPV 6FRWW Ronald D. Smith 5HJLQD 6WRQH +DUULV Johnny W. Thomas David Willis Natalie Wilson Kevin Yeary

Great article on Spurs deal and suit preserving it and Larry’s role. All of your pieces are award ready! — 'RQDOG 5 3KLOELQ -U - ' 0 % $ // 0

Another great article in the SABA magazine. I had forgotten Cox Smith represented the Spurs in the early days. Also, congrats on the Best Feature award at the State Bar convention. So, when are you going to publish the great American novel? — Thomas M. O’Brien General Counsel, Nix Health

I just read your article titled “The Lawsuit that Saved the Spurs� and wanted to tell you how much I enjoyed it, as well as the article some months back about Tom Keyser. You are a very talented writer. — 'DYLG *UDJJ Langley & Banack, Inc.

Editors Editor in Chief Sara Murray Articles Editor Natalie Wilson

Feedback on Steve Peirce’s article “The Lawsuit that Saved the Spurs,� published in the July-August 2015 issue of 6DQ $QWRQLR /DZ\HU:

I just read your article entitled, “The Lawsuit that Saved the Spurs,â€? in the July-August 2015 edition of the San Antonio Lawyer. I wanted to write to congratulate you on a wonderful piece. I should have known that my friend Larry was behind the start of something as good as the Spurs. I am addicted to that team, but must confess that I had never heard about the Gervin lawsuit before. Wonderful. Thanks again for taking the time to share this wonderful VWRU\ ZLWK WKH UHVW RI XV /DUU\ \RX DUH QRZ R΀FLDOO\ P\ KHUR Âł DJDLQ “Marathon Maniacâ€? Brings the Ice Man to the Alamo City. Nice! Congrats guys, and thanks for making my morning. — Mikal Watts -cc: Larry Macon

Nice Article! Go Spurs Go! — 3DWULFN +X͞VWLFNOHU Dykema Cox Smith

([ 2΀FLR James M. “Marty� Truss

Erin Boren

Chellie Thompson

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Monarch Media & Consulting, Inc. 512.293.9277 chellie@monarchmediainc.com Layouts by Erin Boren Managing Editor, San Antonio Bar Association

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Federal Public Defender Maureen Franco %\ 6WHSKHQ + *RUGRQ

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he Federal Public DefendHU¡V 2΀FH LV UHVSRQVLEOH IRU providing legal assistance to indigent defendants charged with the commission of a federal criminal RͿHQVH 7KHUH DUH D WRWDO RI QLQHW\ IRXU districts spread out across the country. Texas has four districts: Northern, Southern, Eastern, and Western. The Western District is one of the largest districts in the country. It contains seven divisions, covering the following areas: Austin, Del Rio, El Paso, Midland, Pecos, San Antonio, and Waco. These areas encompass approximately 92,000 square miles. Overseeing these divisions is quite an undertaking. It takes an individual with a great deal of experience and total commitment to the job. The latest individual to undertake this daunting task is Maureen Franco. According to those who have worked closely with Maureen, she has done a UHPDUNDEOH MRE RI PDNLQJ KHU R΀FH IXQFWLRQ HͿHFWLYHO\ Maureen Franco was appointed to the position of Federal Public Defender in 2013. She replaced former Public Defender Henry Bemporad, who served LQ WKH SRVLWLRQ IRU ÀYH \HDUV %HPSRrad, who promoted Maureen to Deputy Federal Public Defender in 2007, went on to become a Magistrate Judge for the Western District of Texas. Maureen is one of those rare people who knew exactly what she wanted to be from a young age. She recounts that as young as nine years old she knew she wanted to be a lawyer. There were no other lawyers in her family at the time. Most of her family had blue collar jobs or worked in a business-related ÀHOG 0DXUHHQ DWWULEXWHV KHU HDUO\ LQspiration to growing up in the era of Perry Mason. Born in Chicago, Maureen was the third of four children. Her dad worked for IBM, and as a result, the family moved around the country throughout

her childhood. Maureen recalls moving to Alabama, Louisiana, Texas, Virginia, and then back to Texas, where the family settled in Dallas. She spent the rest of her childhood in Dallas and graduated from Richardson High School. Maureen contends that moving around as a child was good training for her and her future as a lawyer. It forced her to meet new people and make new friends, Maureen Franco with Liz Rogers in 2010. thereby helping her overprivate practice. Her caseload primarcome her natural shyness. It also exily consisted of criminal cases, along posed her to what was happening in with a few family law matters. It was GLÍżHUHQW SDUWV RI WKH FRXQWU\ VXFK DV then that Maureen joined the “CJA Panthe civil rights struggles in the South. elâ€? (Criminal Justice Act Panel). This After graduating from high school, panel is for attorneys seeking appointMaureen enrolled at the University of ments to represent indigent criminal Texas at Austin. She majored in Govdefendants charged with violating federnment, minored in Spanish, and eral criminal law. These attorneys take graduated in 1986. She then attended on cases that for various reasons cannot Baylor Law School in Waco. One of the be handled by the local Federal Public features she liked most about Baylor 'HIHQGHU¡V 2΀FH 0RVW FRPPRQO\ WKH Law School was its focus on preparing 3XEOLF 'HIHQGHU¡V 2΀FH FDQQRW WDNH RQ students for actual litigation. Maureen a case because it represents a co-defengraduated from Baylor Law School in dant in a multi-defendant case. 1989 and obtained her law license im2QH RI WKH Ă€UVW FDVHV DVVLJQHG mediately thereafter. to Maureen was a wire fraud case. After graduating from Baylor Law Through this case, she met one of her School, Maureen moved to El Paso, lifelong colleagues, Elizabeth “Lizâ€? where she took a job at the El Paso Rogers. Liz represented the co-defen&RXQW\ -XGJH¡V 2΀FH DV D /HJDO $Gdant. She and Maureen quickly struck visor to the County Judge and County up a lasting friendship. Commissioners’ Court. She was inLiz recalls their work together terviewed for the position after Judge with great fondness. Maureen sat secRoyal Furgeson and Judge Phil Martiond chair with her in a big drug case in nez sent her resume to County Judge which they represented a teacher with Luther Jones. She served in the posithree young children. The teacher drove tion from August 1989 to January 1991, her car over the border from Juarez to primarily reviewing county adminisEl Paso every day to go to work. One trative policies and contracts for the GD\ VKH GURYH D GLÍżHUHQW YHKLFOH DQG County Judge. was stopped by the border patrol. It ,Q 0DXUHHQ EULHĂ \ HQWHUHG

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turned out that the vehicle was full of illegal drugs. Their client faced serious prison time. The client insisted she was innocent and knew nothing about the drugs. Maureen and Liz believed her and took the case to trial. They called one of the client’s six-year-old twins WR WHVWLI\ 7KH FKLOG WHVWLĂ€HG WR WKH HIfect that her “mommy’s car wouldn’t work that morningâ€? and explained that one of her other family members actually convinced her mom to drive his car across the border. They obtained a “not guiltyâ€? verdict. Liz says she could not have done it without Maureen’s assistance. In 1993, Maureen left private practice and joined the El Paso Federal PubOLF 'HIHQGHU¡V 2΀FH DV DQ $VVLVWDQW Public Defender. Her former colleague Liz was already working there, and had highly recommended Maureen for the position. She was hired by former Federal Public Defender Lucien Campbell. It was there that she really “honed her chopsâ€? as a trial attorney. 0DXUHHQ VWLOO UHPHPEHUV KHU Ă€UVW GD\ RQ WKH MRE ZKHQ WKUHH Ă€OHV ZHUH dumped in her lap, all set for hearings

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later that day. Needless to say, there was a steep learning curve in this position. Dealing with such a large volume of cases with little preparation made her learn to think on her feet. On average, Maureen handled about 300 cases a year. Juggling that many cases at once was truly a “sink or swimâ€? situation. Maureen recalls what a great group of people her coworkers were to work with. Everybody understood that they IXOĂ€OOHG D YHU\ LPSRUWDQW PLVVLRQ JLYLQJ Ă€UVW UDWH OHJDO UHSUHVHQWDWLRQ WR the poorest of the poor in their community. They took great pride in their jobs, and showed the defendants they would give the case everything they had despite the fact they were “court appointedâ€? lawyers. (The average federal defendant often construes “court appointedâ€? as signifying inferior and incompetent representation.) 'XH WR WKH 2΀FH¡V SUR[LPLW\ WR the border, most of Maureen’s cases involved immigration violations. She also handled numerous prisoner exchange program cases. The exchange program allowed U.S. citizens who had been sentenced in Mexico for committing a crime to serve out the rest of the sentence in a U.S. jail. It also allowed Mexican citizens sentenced here to serve out their sentences in a Mexican jail instead of a U.S. one. The main criteria were that the convicted person must have a “determinate sentenceâ€? and that the crime committed must have been illegal in both countries. Maureen would visit her prisoner exchange clients at the Juarez, Mexico, holding facility. The atmosphere was TXLWH GLÍżHUHQW WKDQ WKH KROGLQJ IDFLOLties in the U.S. There were hardly any guards around, and no one was actually locked up inside. The holding facility even had a general store and snack bar run by the inmates. She would usually go to the cafeteria to meet with her clients. A few of Maureen’s cases from this time stand out to her. One case involved the alleged sexual abuse of a minor by a teacher’s aide. The aide supposedly touched a four-year-old child in an inappropriate manner while she went to the bathroom. The school was located on the Fort Bliss military base (the basis for federal court jurisdiction over the matter). During her investigation, Maureen visited the school and examined the

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layout of the classroom. She noticed the bathroom was situated in the very front of the classroom. The victim claimed the incident took place right outside the bathroom door. If that had been true, the teacher’s aide would have committed the act in front of the entire class. This seemed highly unlikely. Based in large part on this key argument, Maureen won the case. Maureen also recalls a “bridgeâ€? case, which involved a driver caught transporting 200 pounds of cocaine across the U.S.-Mexico border. The drugs were hidden in the vehicle’s tires. The driver swore he was innocent and did not know that drugs were inside the tires. While the defense might seem farfetched, Maureen knew that it was QRW 6KH NQHZ GUXJ WUD΀FNHUV KLUHG drivers to cross the border, by making them think they hauled legitimate carJR 7KH WUD΀FNHUV ZRXOG HYHQ FUHDWH phony transport documents to fool the GULYHU DQG WKH ERUGHU FURVVLQJ R΀FLDOV Maureen’s client faced a ten-year mandatory minimum sentence if conYLFWHG 0DXUHHQ WULHG WR Ă€JXUH RXW KRZ to counter the government’s argument that the driver had to have known the drugs were in the tires. According to the government, the tires must have been VR RÍż EDODQFH WKDW WKH GULYHU ZRXOG KDYH QRWLFHG WKH VWHHULQJ ZDV RÍż 7KH driver said he did not notice anything unusual about handling the vehicle. Maureen ultimately used an expert witness to address the issue. After exDPLQLQJ WKH YHKLFOH WKH H[SHUW WHVWLĂ€HG that the tires would not necessarily be QRWLFHDEO\ ZREEO\ HYHQ Ă€OOHG ZLWK LOlegal drugs. The jury apparently agreed with his analysis because it returned a “not guiltyâ€? verdict. After eight years with the Federal 3XEOLF 'HIHQGHU¡V 2΀FH 0DXUHHQ decided to pursue civil litigation. She went to work as an Associate for the Jobe Law Firm, with her friend Martie Jobe. Before long, she realized it just was not the career path for her. She left the following year and returned home WR WKH )HGHUDO 3XEOLF 'HIHQGHU¡V 2΀FH Shortly thereafter, Maureen began PRYLQJ XS WKH FDUHHU ODGGHU Ă€UVW DV D Supervisory Assistant Federal Public Defender. Maureen believed that with her experience, and at that point in her career, she was well-suited for a management position. Even in this position, she still carried her own criminal de-

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fense caseload. In 2007, when Maureen began serving as the Deputy (First Assistant) Federal Public Defender to then-Chief Federal Public Defender Henry Bemporad, LW ZDV WKH Ă€UVW WLPH VKH JRW LQYROYHG LQ budgetary issues. She credits the “great DGPLQLVWUDWLYH R΀FH DVVLVWDQWÂľ &3$ 6Xsan Andrade with helping her keep her numbers in order. In this position Maureen gained a new respect for how well the Judiciary DQG 3XEOLF 'HIHQGHU¡V 2΀FH DUH DFWXDOO\ UXQ 7KH 'HIHQGHU¡V 6HUYLFHV 2΀FH in Washington, D.C. sets the budget for each district. The total budget for the Western District is approximately $15,000,000. The Fifth Circuit’s judges determine how many lawyers will be hired for each district. The Western District of Texas has a total of 47 attorneys and VWDÍż PHPEHUV 7KH DWWRUQH\V DUH GLVtributed as follows: 20 in the El Paso Division; 10 in the San Antonio Division; 4 in the Pecos Division; 4 in the Austin Division; and 9 in the Del Rio Division. On average, each attorney handles approximately 188 cases per year. This is much higher than the national caseload average, which is less than 100 cases per year. During Maureen’s tenure, she was able to reduce the caseload to closer to 160 cases per year. In 2013, Maureen was selected to replace outgoing Chief Federal Public Defender Henry Bemporad, when he left to become a Magistrate Judge for the Western District of Texas. Judge Bemporad has only praise for Maureen and her long history of public service. He fondly remembers spending time together with her at a seminar in Philadelphia, where they went in search of the best cheesesteak in the city. Judge Bemporad considers her an outstanding lawyer, and was very sorry to see KHU JR ZKHQ VKH Ă€UVW OHIW WKH 3XEOLF 'HIHQGHU¡V R΀FH EHFDXVH VKH ZDV VXFK D strong advocate for those served by the 3XEOLF 'HIHQGHU¡V 2΀FH When Maureen returned to the 2΀FH %HPSRUDG SURPSWO\ SXW KHU in a supervisory position because of her great experience and expertise. He quickly realized she had great skills as a manager, in addition to those as a trial lawyer. She served as his Deputy Defender during his time as Chief Defender. Both Maureen and Judge Bempo-

rad learned a lot from their predecessor, former Chief Federal Public Defender Lucien Campbell. Judge Bemporad also has high praise for Assistant Federal Defender Liz Rogers, who was the head RI 2΀FH LQ (O 3DVR $V -XGJH %HPSRrad recalls, all three had a great working relationship, although they all had very stressful jobs. Even in the toughest times, he recalls that they could laugh together. The one trait Judge Bemporad thinks would describe Maureen best is that she never backed down from D Ă€JKW 6KH FRXOG EH ´WRXJK DV QDLOVÂľ when she needed to be, but also had a “heart of goldâ€? when dealing with her clients. Unfortunately, when Maureen Ă€UVW WRRN R΀FH DV &KLHI 'HIHQGHU VKH was immediately hit with a major crisis known as “sequestration.â€? The effects of the budget crisis wrought by VHTXHVWUDWLRQ ZHUH LQFUHGLEO\ GL΀FXOW to handle. It cut deeply into a budget WKDW ZDV DOUHDG\ LQVX΀FLHQW 0DXUHHQ spent a great deal of time in San Antonio trying to make the appropriate cuts DQG DGMXVWPHQWV WR NHHS KHU VWDÍż LQWDFW Deputy Federal Public Defender Donna Coltharp has been with Maureen through thick and thin, including the budget sequestration crisis. Donna recalls that one day she and Maureen went to meet several new Federal Public Defenders in Washington, D.C. There, and seemingly out of the blue, Maureen suggested they stop by U.S. 5HSUHVHQWDWLYH %HWR 2¡5RXUNH¡V R΀FH to discuss the budget crisis. As Donna explained, “We traipsed over there in the cold, semi-unannounced.â€? Luckily, Maureen and Donna were able to meet with O’Rourke and let him know how devastating these budget cuts were on WKH 3XEOLF 'HIHQGHU¡V 2΀FH 'RQQD was very impressed by Maureen “taking the bull by the horns.â€? Shortly thereafter, the budget crisis was resolved. According to Donna, Maureen has been a great mentor to her over the years, and extremely supportive of Donna in the development of her own career. Donna has observed that Maureen is also very good at staying LQIRUPHG RQ Ă€QDQFHV DQG UHFHQWO\ SXW WRJHWKHU D VWDWLVWLFDO SURĂ€OH RI KRZ money is spent. Maureen helped put together the system and criteria used WR DQDO\]H WKH FRVW HÍżHFWLYHQHVV RI WKH Federal Public Defender Program.

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The budget and managerial responsibilities Maureen took on are a huge responsibility. There is a lot of required travel, and there are dozens of people to deal with on a day-to-day basis. Maureen tries to delegate as much work as she can when appropriate, but VRPHWLPHV Ă€QGV LW KDUG WR UHOLQTXLVK the details to others. The workload is neverending and often leaves little time to spend with her family and two young children. One of the practices Maureen is most proud of helping to change is the assignment of “Operation Streamlineâ€? cases in the Del Rio docket. She was inspired to change the system after observing that the Public Defender’s OfĂ€FH ZDV VSHQGLQJ DQ HYHU LQFUHDVLQJ amount of time handling a bombardment of misdemeanor illegal re-entry cases. Maureen approached U.S. District Judge Alia Moses about assigning the cases to the local CJA panel. Judge Moses agreed, and the local CJA Panel Attorneys were more than ready to take on the extra caseload. This freed the 3XEOLF 'HIHQGHU¡V 2΀FH WR GHDO ZLWK felony illegal re-entry cases and other more serious misdemeanor and felony cases. Maureen was also instrumental in creating “Project Senderoâ€? (which translates into “Pathwayâ€? from Spanish) in the El Paso Division. The project is a “re-entry courtâ€? for prisoners who are about to be released. The re-entry court is designed to help prisoners reLQWHJUDWH LQWR VRFLHW\ PRUH HÍżHFWLYHO\ instead of falling back on old criminal behaviors. The program helps provide basic necessities like housing, training, treatment programs, and jobs. This assistance is especially helpful for former SULVRQHUV ZKR VXÍżHU IURP SRYHUW\ drug addiction, or mental health problems. Judge Frank Montalvo worked closely with Maureen in establishing the program. She talked to him about modeling the program after the “drug courtâ€? programs that many states and some federal courts have set up over the years. Judge Montalvo asked the local probation department for proposals for establishing this type of program in his jurisdiction. After receiving proposals and securing Fifth Circuit approval

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IN JUNE 2007, SceneMonthly published my article entitled “What Ever Happened to Jury Trials?â€? The article discussed the dramatic decline in civil jury trials in Bexar County and the rest of the country. I reported that only 85 civil jury cases were tried to a verdict in the Bexar County District Courts in 2006. ConVLGHULQJ DSSUR[LPDWHO\ FDVHV ZHUH Ă€OHG WKDW \HDU WKDW number seemed incredible. In response to the article, I received numerous comments and calls from colleagues, including some from district judges, questioning the statistics I cited. After convincing skeptics WKDW , XVHG WKH R΀FLDO VWDWLVWLFV Ă€OHG E\ WKH %H[DU &RXQW\ 'LVWULFW &OHUN¡V 2΀FH ZLWK WKH 6WDWH RI 7H[DV VHYHUDO IRONV told me the statistics must be wrong. Either that, or the year I cited was an aberration, and that if I checked the following year, I would see an increase in jury trials. I checked the following year and found that civil jury trials decreased to 78 in 2007. The number went down again in 2008. In 2012, only 0.4% of Texas cases were resolved by jury trials. David Beck, A Civil Justice System with No Jury Trials, 76 TEX. BAR J. 1073. The trend is not unique to Texas or state courts. In 1962, 5.5% of federal cases were resolved by juries. By 2002, that number was 1.2%. The rate is now below 1%. Recently, I looked back to see if the trend in Bexar County continued. I found the number of jury trials continued to GHFOLQH DOPRVW HYHU\ \HDU VLQFH P\ Ă€UVW DUWLFOH ,Q FLYLO jury trials in Bexar County District Courts dropped to 48. We

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have 14 Civil District Judges who tried 48 jury trials to verdict. That is fewer than four cases per judge. See Tex. Jud. Branch, Statistics & Other Data, KWWS ZZZ W[FRXUWV JRY VWDWLVWLFV DQQXDO VWDWLVWLFDO UHSRUWV DVS[. There are many reasons for the decline: arbitration, mediation, jury waiver provisions in contracts, fear of unpredictable juries, and similar causes. It is likely that the big reason — the one lawyers don’t like to talk about — is that the expense of litigation has become a major deterrent, not just to jury trials, but to all trials. The cost of a full-blown jury trial, with extensive discovery and motions, has become an insurPRXQWDEOH Ă€QDQFLDO REVWDFOH IRU DOO EXW WKH YHU\ ZHDOWK\ If you look at the breakdown by the types of cases tried, you will see that in the past three years (2012 - 2014), over 70% of the civil jury trials in Bexar County were tort cases, as opposed to family law, contract, and business matters. :K\" %HFDXVH SODLQWLÍż ODZ\HUV LQ WRUW FDVHV JHQHUDOO\ ZRUN on a contingent fee basis (i.e., they are paid a percentage of DQ\ UHFRYHU\ ZKLFK PDNHV WKHP DÍżRUGDEOH E\ SHRSOH ZKR have been injured. Contract, business, and family law cases involve lawyers who generally charge by the hour. Those FDVHV DUH DOPRVW XQDÍżRUGDEOH DQG DUH GLVDSSHDULQJ IURP WKH jury trial docket. So, what are the consequences of the decline in civil jury trials to our judicial system? Some experts have expressed concern that the trend may eliminate the need for trial lawyers, judges, or appellate courts. I don’t share this concern. :H VWLOO QHHG WR UHVROYH WKH ODZVXLWV Ă€OHG HDFK \HDU We still need judges to administer those cases, make rulings, and try the cases when juries are not used (a “bench trialâ€?).

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WHAT EVER HAPPENED TO JURY TRIALS? THE DECLINE CONTINUES

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We need trial lawyers (who now seem to prefer the term “litiJDWRUVÂľ WR Ă€OH ODZVXLWV GR SUH WULDO PRWLRQV DQG GLVFRYHU\ and take clients to an ultimate determination, whether by settlement, mediation, arbitration, or a bench trial. Lawyers, though, must understand that jury trials in civil cases may no longer be a viable way of resolving disputes. Professor Neil Vidmare, of Duke University, did a comprehensive survey in 2000 and reported that the United States is the only country in the world that has jury trials in civil matters. Civil jury trials have become so rare that most young lawyers have not experienced a jury trial. Many never will. Today, a litigator will resolve the vast majority of future cases in mediations or arbitrations, as opposed to trials. The problem is a vicious cycle. Fewer trials lead to fewer experienced trial lawyers, which leads to even fewer trials. Law schools must accept the trend and spend more time training students to be better advocates at mediation and arbitration. Litigators and judges need to explore ways to reduce the abuse of GLVFRYHU\ DQG PDNH WULDOV PRUH DÍżRUGDEOH A recent article raised an interesting ethics issue. If we are raising an entire generation of litigators for whom trial is “merely a theoretical concept,â€? does the lawyer who has never tried a jury case have an ethical obligation to disclose this fact to the client who has just hired this lawyer as a “trial lawyer?â€? The authors strongly suggest that the lawyer needs to advise the client of his or her lack of trial experience. See Tracy Walters & Christopher Bodnar, Op.: Honesty Is the Best Policy, 78 TEX. BAR J. 210 (2015). Whether lawyers think the decline in jury trials is a good thing or a bad thing, the decline is a reality that must be faced.

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U.S. District Judge Mark W. Bennett perhaps best characterized this reality in his Obituary: The American Trial Lawyer: The American Trial Lawyer, who enhanced the lives of so many Americans and made the United States . . . a just nation, passed away recently. Although a precise age is uncertain, the American Trial Lawyer was believed to have been at least 371 years old at the time of death. The cause of death is uncertain . . . but was not sudden. In fact, the American Trial Lawyer had been placed on the Endangered Species List a decade or so before death. The autopsy determined that the American Trial Lawyer most likely died from a long term, progressive illness that began more than 40 years ago . . . and was exacerbated by a genetic mutation of the civil justice system that came to be known as arbitration and mediation . . . and the spread of inaccurate information about frivolous lawsuits and verGLFWV OLNH WKH 0F'RQDOG¡V ´KRW FRͿHH¾ FDVH Mark W. Bennett, Obituary: The American Trial Lawyer, Born 1641—Died 20??, 39 LITIG. 5 (2013). Thomas J. Smith has been an active mediator/ arbitrator since 1992. He received B.A. and L.L.B. degrees from the University of Texas. He is a past member of the Board of Directors of the National Association of Attorney-Mediators, past President of the San Antonio Chapter of the Association of Attorney-Mediators, a member of the Texas Association of Mediators, and a member of the Texas Academy of Distinguished Neutrals. A version of this article was previously published in the June 2015 issue of San Antonio Scene.

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#0 ':64#14&+0#4; remedy that is available “only to correct a clear abuse of discretion when there is no adequate remedy by appeal.” In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006) (orig. proceeding). In determining whether an adequate remedy is available by appeal, courts consider ZKHWKHU WKH EHQHÀWV RXWZHLJK WKH GHWULPHQWV RI PDQGDmus review. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). An appeal is inadequate when a party is “in danger of permanently losing substantial rights.” In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding) (per curiam). Family law provides some of the most fertile ground for seeking mandamus relief to avoid these risks. 3(5621$/ -85,6',&7,21 “Generally, Texas appellate courts only have appellate jurisdiction over appeals from ÀQDO MXGJPHQWV XQOHVV D VWDWXWH VSHFLÀFDOO\ DOORZV D SDUWLFular type of interlocutory appeal.” In re J.W.L., 291 S.W.3d 79, 83 (Tex. App.—Fort Worth 2009, orig. proceeding) (citing Ogletree v. Matthews, 262 S.W.3d 316, 319 n. 1 (Tex. 2007)). One such statute, section 51.014 of the Texas Civil Practice & Remedies Code, allows interlocutory appeals of certain types of orders, including those granting or denying a special appearance, “except in a suit brought under the Family Code.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) (West 2014); see also J.W.L., 291 S.W.3d at 83 (holding that if a special appearance “involves a family law matter, there is no such right to an interlocutory appeal”). Therefore, mandamus is an appropriate procedure to challenge a ruling relating to personal jurisdiction in family law cases. J.W.L., 291 S.W.3d at 83. 68%-(&7 0$77(5 -85,6',&7,21 “Despite the general requirement that a party seeking relief by mandamus must establish he has no adequate remedy by appeal, such is not the case when the trial court lacks subject matter jurisdiction.” In re Martinez, 450 S.W.3d 157, 161 (Tex. App.— San Antonio 2014, orig. proceeding); see also In re Alanis, 350

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2SZIQFIV (IGIQFIV Āþÿă

S.W.3d 322, 324 (Tex. App.â&#x20AC;&#x201D;San Antonio 2011, orig. proceeding) (â&#x20AC;&#x153;The Texas Supreme Court has held that mandamus review is appropriate in child custody cases where there is a jurisdictional dispute.â&#x20AC;?) (citing, inter alia, Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) (orig. proceeding) (per curiam)). The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which addresses subject matter jurisdiction in FKLOG FXVWRG\ FDVHV LQYROYLQJ OLWLJDQWV IURP GLÍżHUHQW VWDWHV provides that a childâ&#x20AC;&#x2122;s home state for UCCJEA purposes is the state in which the child lived â&#x20AC;&#x153;for at least six consecutive months immediately before the child-custody proceeding was commenced.â&#x20AC;? Powell v. Stover, 165 S.W.3d 322, 323 (Tex. 2005). In Powell, â&#x20AC;&#x153;because the child lived in Tennessee with his parents for at least six consecutive months immediately before the child-custody proceeding was commenced, Texas [was] not the childâ&#x20AC;&#x2122;s home state and the trial courtâ&#x20AC;&#x2122;s exercise of jurisdiction was improper.â&#x20AC;? 165 S.W.3d at 323. Therefore, the Court â&#x20AC;&#x153;grant[ed] the petition for writ of mandamus and order[ed] the trial court to stay this proceeding and communicate with the Tennessee court,â&#x20AC;? with the added proviso that, in the absence of a determination that Texas was a more appropriate forum, â&#x20AC;&#x153;the trial court shall dismiss this proceeding.â&#x20AC;? Id. at 328-29; see also In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (orig. proceeding) (holding that mandamus relief is available to enforce compliance with the UCCJEAâ&#x20AC;&#x2122;s jurisdiction requirements); Geary, 878 S.W.2d at 604-05 (same). TRANSFER OF VENUE. Mandamus is also available to complain of a trial courtâ&#x20AC;&#x2122;s refusal to exercise its â&#x20AC;&#x153;mandatory ministerial dutyâ&#x20AC;? to transfer venue â&#x20AC;&#x153;to a county where the child has resided for more than six months.â&#x20AC;? 3URÍżHU Y <DWHV, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam). â&#x20AC;&#x153;[R]emedy by appeal,â&#x20AC;? the Supreme Court of Texas explained, â&#x20AC;&#x153;though available, is frequently inadequate to protect the rights of parents and children to a trial in a particular venue. Parents and children who have a right under the mandatory venue provisions to venue in a particular county should not be forced to go through a trial that is for naught. Justice demands a speedy resolution of child custody and child support issues.â&#x20AC;? Id. ',925&( Section 6.502 of the Texas Family Code provides that â&#x20AC;&#x153;[w]hile a suit for dissolution of a marriage is pending . . . the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties. . . .â&#x20AC;? TEX. FAM. CODE § 6.502 (West 2006). In particular, the court may render temporary orders requiring inventories, document production, payment of attorneyâ&#x20AC;&#x2122;s fees, appointing a receiver, limiting expenditures, and prohibiting physical attacks or threats. Id. But section 6.507 provides that â&#x20AC;&#x153;[a]n order under this subchapter, except an order appointing a receiver, is not subject to interlocutory appeal.â&#x20AC;? TEX. FAM. CODE § 6.507 (West 2006). The restriction in section 6.507 on the interlocutory appeal of temporary injunctions contrasts with section 51.014(a) (4) of the Texas Civil Practice & Remedies Code, which permits the interlocutory appeal of an order granting or refusing a temporary injunction, or granting or overruling a motion to dissolve a temporary injunction. TEX. CIV. PRAC. & REM. CODE

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§ 51.014(a)(4) (West 2014). Several intermediate appellate courts have determined WKDW WKH VSHFLĂ&#x20AC;F SURYLVLRQV RI 7H[DV )DPLO\ &RGH VHFWLRQ 6.507 control over the general provisions of Texas Civil Practice & Remedies Code section 51.014(a)(4). See, e.g., Marley v. Marley, 2006 WL 3094325, *2 (Tex. App.â&#x20AC;&#x201D;Houston [1st Dist.] 2006, pet. denied) (mem. op.) (â&#x20AC;&#x153;Because section 6.507 of the )DPLO\ &RGH DSSOLHV VSHFLĂ&#x20AC;FDOO\ WR GLYRUFH SURFHHGLQJV it prevails over the general application of section 51.014 of the CPRC.â&#x20AC;?); Gentry v. Gentry, 2002 WL 32344575, at *1 (Tex. App.â&#x20AC;&#x201D;Eastland 2002, no pet.) (not designated for publication) (â&#x20AC;&#x153;[T]he predecessor statute to Family Code § 6.507 has been interpreted to control over section 51.014(a)(4).â&#x20AC;?); Moreno v. Ruiz, 1997 WL 214831, at *2 (Tex. App.â&#x20AC;&#x201D;San Antonio 1997, no writ) (not designated for publication) (construing section 51.014 as â&#x20AC;&#x153;allowing interlocutory appeals of temporary injunctions generally,â&#x20AC;? and section 3.58(g) (now 6.507) as â&#x20AC;&#x153;an exception that prohibits interlocutory appeals of temporary injunctionsâ&#x20AC;? in divorce cases). This statutory prohibition against interlocutory appeals, in combination with the JHQHUDO UXOH WKDW RQO\ Ă&#x20AC;QDO MXGJPHQWV DUH DSSHDODEOH OHDYHV mandamus as the only remaining option to attack these temporary orders. 0$1$*,1* &216(59$7256+,3 Contests of managing conservatorship are frequent candidates for mandamus relief in the context of temporary orders. See In re Cooper, 333 S.W.3d 656, 659 (Tex. App.â&#x20AC;&#x201D;Dallas 2009, orig. proceeding) (â&#x20AC;&#x153;Because temporary orders are not appealable, mandamus is an appropriate remedy when a trial court abuses its GLVFUHWLRQ LQYROYLQJ WHPSRUDU\ RUGHUV LQ D VXLW DÍżHFWLQJ WKH parent-child relationship.â&#x20AC;?) (citing, inter alia, Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993)); see also In re Sanchez, 228 S.W.3d 214, 217 (Tex. App.â&#x20AC;&#x201D;San Antonio 2007, orig. proceeding) (â&#x20AC;&#x153;Mandamus is the appropriate mechanism to challenge WHPSRUDU\ RUGHUV PDGH ZKLOH D FKLOG FXVWRG\ PRGLĂ&#x20AC;FDWLRQ suit is pending because such orders are interlocutory and not appealable.â&#x20AC;?) (citing, inter alia, In re Maysâ&#x20AC;&#x201C;Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (orig. proceeding)). Section 156.006(b) of the Texas Family Code â&#x20AC;&#x153;limits a trial courtâ&#x20AC;&#x2122;s authority to render temporary orders that have â&#x20AC;&#x2DC;the HÍżHFW¡ RI FKDQJLQJ WKH SHUVRQ ZLWK WKH H[FOXVLYH ULJKW WR GHVLJQDWH SULPDU\ UHVLGHQFH XQGHU D Ă&#x20AC;QDO RUGHU Âľ Sanchez, 228 S.W.3d at 217 (citing TEX. FAM. CODE § 156.006(b)(1)). In Sanchez, the â&#x20AC;&#x153;substantial reductionâ&#x20AC;? in the motherâ&#x20AC;&#x2122;s possession time, together with â&#x20AC;&#x153;the restrictions placed on her possession ULJKWV DQG WKH LQGHĂ&#x20AC;QLWH GXUDWLRQ RI WKH WHPSRUDU\ RUGHUV Âľ resulted in depriving her of â&#x20AC;&#x153;any discretion inherent in her right to designate [the child]â&#x20AC;&#x2122;s principal residence.â&#x20AC;? Id. at %HFDXVH WKH WHPSRUDU\ RUGHUV ´HÍżHFWLYHO\ FKDQJH>G@ WKH designation of the person with the exclusive right to desigQDWH SULPDU\ UHVLGHQFH XQGHU WKH Ă&#x20AC;QDO RUGHU Âľ WKH WULDO FRXUW â&#x20AC;&#x153;was not authorized to render these temporary orders unless it found them to be â&#x20AC;&#x2DC;necessaryâ&#x20AC;&#x2122; because the childâ&#x20AC;&#x2122;s present FLUFXPVWDQFHV ZRXOG VLJQLĂ&#x20AC;FDQWO\ LPSDLU KHU SK\VLFDO KHDOWK or emotional development.â&#x20AC;? Id. at 218 (citing TEX. FAM. CODE § 156.006(b)(1)). Therefore, the court of appeals granted a writ of mandamus directing the trial court to vacate these temporary orders. Id. at 219. In In re Casanova, the father moved to modify agreed temporary orders by asking the trial court to limit the childâ&#x20AC;&#x2122;s

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primary residence and school attendance to Dallas. No. 05-14-01166-CV, 2014 WL 6486127, at *1-2 (Tex. App.â&#x20AC;&#x201D;Dallas Nov. 20, 2014, orig. proceeding) (mem. op.). Because the motherâ&#x20AC;&#x2122;s ability to designate the childâ&#x20AC;&#x2122;s primary residence in Tulsa was a â&#x20AC;&#x153;substantial right,â&#x20AC;? which she would lose as a result of these temporary orders, the court of appeals held: â&#x20AC;&#x153;An DSSHDO RI WKLV RUGHU DIWHU Ă&#x20AC;QDO MXGJPHQW HYHQ LI SHUPLVVLEOH would come too late to restore to mother the rights she will lose in the interim and would not provide her with complete relief. Accordingly, this is an appropriate case for mandamus review.â&#x20AC;? Id. at *2. POSSESSION. Temporary orders granting possession are also subject to scrutiny by mandamus because, like other temporary orders in family law cases, they are not interlocutorily appealable. Little, 858 S.W.2d at 369; Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding).

FLSOHV DSSO\ DOWKRXJK VRPHWLPHV ZLWK VSHFLĂ&#x20AC;F WZLVWV SHFXliar to family-law litigation. â&#x20AC;&#x153;Generally, the scope of discovery is within the discretion of the trial court.â&#x20AC;? In re Wood, No. 01-06-00014-CV, 2006 WL, at *4 (Tex. App.â&#x20AC;&#x201D;Houston [1st Dist.] Mar. 14, 2006, orig. proceeding) (mem. op.) (citing In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam)). An abuse of discretion occurs if the trial court â&#x20AC;&#x153;orders discovery that exceeds that permitted by the Rules of Civil Procedure.â&#x20AC;? Wood, 2006 WL 648774, at *4. Under these rules, discovery can be â&#x20AC;&#x153;â&#x20AC;&#x2DC;relevant to the subject matter of the pending actionâ&#x20AC;&#x2122; even if it would be inadmissible at trial, as long as the â&#x20AC;&#x2DC;information sought appears reasonably calculated to lead to the discovery of admissible evidence.â&#x20AC;&#x2122;â&#x20AC;? Id. (citing TEX. R. CIV. P. 192.3 and CSX Corp., 124 S.W.3d at 152). â&#x20AC;&#x153;In sum, requested discovery must be â&#x20AC;&#x2DC;reasonably tailoredâ&#x20AC;&#x2122; to include only rel-

ACCESS. In addition, the Supreme Court of Texas has granted mandamus relief â&#x20AC;&#x153;to require a trial court to vacate its temporary orders granting grandparent access.â&#x20AC;? In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding) (citing Maysâ&#x20AC;&#x201C;Hooper, 189 S.W.3d at 778). In Derzapf, the temporary orders granting grandparent access â&#x20AC;&#x153;divest[ed] a Ă&#x20AC;W SDUHQW RI SRVVHVVLRQ RI KLV FKLOGUHQ . . . without overcoming the statutory presumption that the father is acting in his childrenâ&#x20AC;&#x2122;s best interest.â&#x20AC;? 219 S.W.3d at 335. The Supreme Court accordingly concluded that â&#x20AC;&#x153;[s]uch a divestiture is irremediable, and mandamus relief is therefore appropriate.â&#x20AC;? Id. ATTORNEYâ&#x20AC;&#x2122;S FEES. The principle that â&#x20AC;&#x153;[a] trial courtâ&#x20AC;&#x2122;s issuance of temporary orders in a divorce action is not subject to interlocutory appealâ&#x20AC;? also applies to attorneyâ&#x20AC;&#x2122;s fees. Post v. Garza, 867 S.W.2d 88, 89 (Tex. App.â&#x20AC;&#x201D;Corpus Christi 1993, orig. proceeding). Therefore, â&#x20AC;&#x153;mandamus is an appropriate remedy to challenge such orders.â&#x20AC;? Id. â&#x20AC;&#x153;Without review by mandamus the impact of such orders on questions of interim custody, support or costs, which would not necessarily be incorporated into or considered in relaWLRQ WR WKH Ă&#x20AC;QDO GHFUHH RI GLYRUFH ZRXOG thus be isolated from appellate review.â&#x20AC;? As a result, the trial court â&#x20AC;&#x153;would then be left with absolute discretion to determine such matters and would be protected from any claims of error by the VXEVHTXHQW Ă&#x20AC;QDO MXGJPHQW Âľ Id. ',6&29(5< Like other civil cases, discovery disputes frequently arise in family law cases. The same general prin-

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evant matters and must show â&#x20AC;&#x2DC;a reasonable expectation of obtaining information that will assist in the resolution of the dispute.â&#x20AC;&#x2122;â&#x20AC;? Wood, 2006 WL 648774, at *4 (quoting CSX Corp., 124 S.W.3d at 152). In Wood, the mother challenged the trial courtâ&#x20AC;&#x2122;s order â&#x20AC;&#x153;that she answer certain interrogatories and produce certain documents on the grounds that the information sought [was] patently irrelevant to the issues to be resolved in a grandparent-access suit.â&#x20AC;? 2006 WL 648774, at *2. She also objected to the rest of the interrogatories, as well as to all of the requests IRU SURGXFWLRQ ZKLFK VRXJKW Ă&#x20AC;QDQFLDO LQIRUPDWLRQ ´DV EHing outside the scope of discovery because the information sought was not relevant to, nor would it lead to admissible HYLGHQFH LQ WKH VXLW Ă&#x20AC;OHG E\ WKH >J@UDQGSDUHQWV IRU YLVLWDtion with the children.â&#x20AC;? Id.at 4. The trial court granted the grandparentsâ&#x20AC;&#x2122; motion to compel the mother to answer these interrogatories and produce the requested documents, but the court of appeals granted the mother mandamus relief because â&#x20AC;&#x153;[n]othing in the requested discovery of [the mother]â&#x20AC;&#x2122;s Ă&#x20AC;QDQFLDO UHFRUGV >FRXOG@ GLUHFWO\ RU LQGLUHFWO\ UHVROYH ZKHWKer the children [would] be physically or emotionally damaged if the [g]randparents [were] not permitted to visit the children.â&#x20AC;? Id. at 5 (citing CSX Corp., 124 S.W.3d at 152). â&#x20AC;&#x153;A party does not have an adequate remedy by appeal,â&#x20AC;? Wood explained, â&#x20AC;&#x153;when a discovery order compels the production of patently irrelevant documents â&#x20AC;&#x2DC;such that it clearly constitutes harassment or imposes a burden on the producLQJ SDUW\ IDU RXW RI SURSRUWLRQ WR DQ\ EHQHĂ&#x20AC;W WKDW PD\ REWDLQ to the requesting party.â&#x20AC;&#x2122;â&#x20AC;? 2006 WL 648774, at *5 (citing Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992)). In Wood ´WKH Ă&#x20AC;QDQcial documents that the trial court ordered disclosed [were] not only irrelevant, but highly personal and sensitive.â&#x20AC;? 2006 WL 648774, at *5 (citing Tilton v. Marshall, 925 S.W.2d 672, 682-83 (Tex. 1996) (orig. proceeding)). â&#x20AC;&#x153;An order requiring genetic testing may under certain circumstances be subject to review by mandamus. . . . First, an order requiring genetic testing is a discovery order, which, if erroneously issued, may not be cured on appeal. Second, genetic testing results are highly sensitive and personal in nature, and the burden of testing may outweigh any possiEOH EHQHĂ&#x20AC;W DQG LQVWHDG FDXVH LUUHSDUDEOH KDUP Âľ ,Q UH 2Î&#x20AC;FH of the Atty. Gen., No. 13-11-00006-CV, 2011 WL 578733, at *2 (Tex. App.â&#x20AC;&#x201D;Corpus Christi Feb. 15, 2011, orig. proceeding) (mem. op.). In re Attorney General of Texas is another example of a case in which the court of appeals granted mandamus relief to block genetic testing to determine paternity. 195 S.W.3d 264, 269 (Tex. App.â&#x20AC;&#x201D;San Antonio 2006, orig. proceeding). ´0DQGDPXV UHOLHI LV MXVWLĂ&#x20AC;HG Âľ WKH FRXUW FRQFOXGHG ´ZKHQ D discovery order compels production of patently irrelevant or duplicative documents, such that it imposes a burden on the SURGXFLQJ SDUW\ IDU RXW RI SURSRUWLRQ WR DQ\ EHQHĂ&#x20AC;W JDLQHG by the requesting party.â&#x20AC;? Id. at 270. That burden â&#x20AC;&#x153;may derive from the fact that the discovery ordered is not only irrelevant, but also highly sensitive and personal.â&#x20AC;? Id. Because a legal relationship as well as an emotional bond had been HVWDEOLVKHG EHWZHHQ WKH Ă&#x20AC;YH \HDU ROG FKLOG DQG WKH SDUW\ DWtempting to obtain genetic testing, the San Antonio Court of Appeals concluded that â&#x20AC;&#x153;the burden of irrelevant and unQHFHVVDU\ JHQHWLF WHVWLQJ IDU RXWZHLJKV DQ\ SRVVLEOH EHQHĂ&#x20AC;WÂľ to the petitioner in obtaining this â&#x20AC;&#x153;highly sensitiveâ&#x20AC;? informa-

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tion. Id. Therefore, considering that â&#x20AC;&#x153;[t]he production of unauthorized discovery, once ordered, cannot be undone,â&#x20AC;? the court of appeals granted mandamus relief to vacate the order for genetic testing because â&#x20AC;&#x153;an appeal [did] not provide an adequate remedy for the trial courtâ&#x20AC;&#x2122;s error.â&#x20AC;? Id. CONTEMPT. An application for a writ of habeas corpus is the traditional procedure to complain of contempt orders, but habeas corpus relief â&#x20AC;&#x153;is not available [if] there is no physical restraint.â&#x20AC;? Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig. proceeding). Mandamus, therefore, is an DSSURSULDWH SURFHGXUH WR FRPSODLQ RI ´D Ă&#x20AC;QH DVVHVVHG XQder a contempt order.â&#x20AC;? Id.; see also In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.â&#x20AC;&#x201D;Tyler 2014, orig. proceeding) (â&#x20AC;&#x153;When, as KHUH QR FRQĂ&#x20AC;QHPHQW LV LQYROYHG D FRQWHPSW MXGJPHQW LV UHviewable only by mandamus.â&#x20AC;?) (citing In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding)); Marcus v. Smith, 313 S.W.3d 408, 419 (Tex. App.â&#x20AC;&#x201D;Houston [1st Dist.] 2009, orig. SURFHHGLQJ ´&RQWHPSW RUGHUV WKDW GR QRW LQYROYH FRQĂ&#x20AC;QHment cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus.â&#x20AC;?) (quoting Long, 984 S.W.2d at 625); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.â&#x20AC;&#x201D;Dallas 2007, dismâ&#x20AC;&#x2122;d w.o.j.) (â&#x20AC;&#x153;Contempt orders involvLQJ FRQĂ&#x20AC;QHPHQW PD\ EH UHYLHZHG E\ ZULW RI KDEHDV FRUSXV FRQWHPSW RUGHUV WKDW GR QRW LQYROYH FRQĂ&#x20AC;QHPHQW PD\ EH UHviewed only through mandamus.â&#x20AC;?). â&#x20AC;&#x153;Decisions in contempt proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable.â&#x20AC;? Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.â&#x20AC;&#x201D;Fort Worth 2001, pet. denied). Therefore, â&#x20AC;&#x153;if a trial court abuses its discretion by holding someone in contempt, there is no adequate remedy by appeal, and the second prong of manGDPXV UHYLHZ LV VDWLVĂ&#x20AC;HG Âľ In re Aslam, 348 S.W.3d 299, 302 (Tex. App.â&#x20AC;&#x201D;Fort Worth 2011, orig. proceeding). â&#x20AC;&#x153;The law that a denial of a motion for contempt is not an appealable order is at least as strong as the law that the imposition of a contempt order is not appealable.â&#x20AC;? In re B.A.C., 144 S.W.3d 8, 11 (Tex. App.â&#x20AC;&#x201D;Waco 2004, orig. proceeding). As a result, a relator may also seek mandamus relief â&#x20AC;&#x153;for a trial FRXUW¡V Ă&#x20AC;QGLQJ WKDW D SDUW\ LV QRW LQ FRQWHPSW Âľ Marcus, 313 S.W.3d at 419; see also Rowe v. Moore, 756 S.W.2d 117, 119 (Tex. App.â&#x20AC;&#x201D;Houston [1st Dist.] 1988, orig. proceeding) (holding that the court of appeals had jurisdiction to consider a petition for a writ of mandamus asking to compel the trial court to hold the opposing party in contempt for violating the terms of an injunction). INTERVENTION. Mandamus relief is also available to challenge an order striking a plea in intervention. See, e.g., In re Chester, 398 S.W.3d 795, 797 (Tex. App.â&#x20AC;&#x201D;San Antonio 2011, orig. proceeding). In Chester D JUDQGSDUHQW Ă&#x20AC;OHG D SHWLWLRQ for mandamus complaining of the trial courtâ&#x20AC;&#x2122;s striking her plea in intervention seeking conservatorship. Id. at 799. The opposing party responded that the relator â&#x20AC;&#x153;lack[ed] standing WR UHTXHVW FRQVHUYDWRUVKLS YLD D PRGLĂ&#x20AC;FDWLRQ VXLW EHFDXVH the order entered in the original suit was a grandparent access order and not an initial custody determination.â&#x20AC;? Id. at 802. But the court of appeals determined that the relator had standing because the trial court retained â&#x20AC;&#x153;continuing, exclusive jurisdiction.â&#x20AC;? Id. Therefore, it held that â&#x20AC;&#x153;the trial court

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Marcus v. Smith, 313 S.W.3d 408, 416 (Tex. App.â&#x20AC;&#x201D;Houston [1st Dist.] 2009, no pet./orig. proceeding); see also In re Merriam 6 : G 7H[ $SS Đ°%HDXPRQW QR pet./orig. proceeding) (â&#x20AC;&#x153;Section 109.001. . . expressly states INCONVENIENT FORUM. Another potential manda- that â&#x20AC;&#x2DC;[a] temporary order rendered under this section is not mus scenario arises when a trial court declines to exercise subject to interlocutory appeal.â&#x20AC;&#x2122;â&#x20AC;?) (quoting TEX. FAM. CODE § jurisdiction on the basis that Texas is an inconvenient forum. 109.001(c)). Therefore, they have held that because â&#x20AC;&#x153;[s]uch See, e.g., In re Alanis, 350 S.W.3d at 329 (granting mandamus orders are not subject to interlocutory appeal. . . [m]andarelief because the trial court â&#x20AC;&#x153;abuse[d] its discretion in deny- mus is the appropriate remedy to attack a temporary order ing [the relator]â&#x20AC;&#x2122;s request for the court to decline jurisdiction under section 109.001.â&#x20AC;? In re Gonzalez, 993 S.W.2d 147, 162 . . . in favor of California because Texas is an inconvenient (Tex. App.â&#x20AC;&#x201D;San Antonio 1999, pet. denied); see also Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex. App.â&#x20AC;&#x201D;San Antonio 1997, forumâ&#x20AC;?). pet. denied) (holding that because the award of temporary 75,$/ 6(77,1*6 Although trial courts have great dis- attorneyâ&#x20AC;&#x2122;s fees under section 109.001 â&#x20AC;&#x153;is not subject to intercretion in managing their dockets, that discretion is not un- locutory appeal, . . . [m]andamus, not the instant appeal, is limited. In Dancy v. Daggett, the husbandâ&#x20AC;&#x2122;s attorney informed the appropriate remedy to attack such an orderâ&#x20AC;?). Although section 6.709 does not contain a provision like the trial court that he could not appear for a temporary hearing in the underlying divorce case because he was in trial in the one in section 109.001 expressly prohibiting interlocutory another case in federal court. 815 S.W.2d at 549. The federal appeals, â&#x20AC;&#x153;[c]ourts have addressed temporary orders renMXGJH DOVR WHOHSKRQHG WKH VWDWH MXGJH WR FRQĂ&#x20AC;UP WKDW WKH DW- dered under section 6.709, or its predecessor, with the pendtorneyâ&#x20AC;&#x2122;s attendance â&#x20AC;&#x153;was still required in federal court.â&#x20AC;? Id. LQJ DSSHDO IURP WKH Ă&#x20AC;QDO MXGJPHQW Âľ Merriam, 228 S.W.3d at Nevertheless, the state judge â&#x20AC;&#x153;refused to postpone the hear- 415; see also Love v. Baileyâ&#x20AC;&#x201C;Love, 217 S.W.3d 33, 34, 36 (Tex. ing,â&#x20AC;? and, despite the absence of the husbandâ&#x20AC;&#x2122;s attorney, App.â&#x20AC;&#x201D;Houston [1st Dist.] 2006, no pet.); McAlister v. McAliâ&#x20AC;&#x153;awarded [the] wife custody of the coupleâ&#x20AC;&#x2122;s children and ster, 75 S.W.3d 481, 483 (Tex. App.â&#x20AC;&#x201D;San Antonio 2002, pet. possession of the family home, and ordered [the husband] denied); Roy W. McDonald & Elaine Grafton Carlson, 6 TEXAS to pay approximately $1,000 per month in child support and CIVIL PRACTICE § 25.4[c] (2d ed. 1998) (â&#x20AC;&#x153;The few cases on the spousal maintenance.â&#x20AC;? Id. Under these circumstances, the subject have held that such orders are appealable with the court of appeals held that â&#x20AC;&#x153;the trial court abused its discre- Ă&#x20AC;QDO MXGJPHQW Âľ tion by refusing to continue the proceedings until such time â&#x20AC;&#x153;Nevertheless, courts have exercised mandamus jurisas [the husband]â&#x20AC;&#x2122;s counsel was available.â&#x20AC;? Id. Mandamus diction in appropriate circumstances to set aside temporary was â&#x20AC;&#x153;an appropriate remedy under these facts, since the trial orders rendered during appeal that exceed the trial courtâ&#x20AC;&#x2122;s courtâ&#x20AC;&#x2122;s issuance of temporary orders [was] not subject to in- statutory authority.â&#x20AC;? Merriam, 228 S.W.3d at 415. For examterlocutory appeal.â&#x20AC;? Id. ple, a trial courtâ&#x20AC;&#x2122;s jurisdiction to grant temporary orders under sections 6.709 and 109.001 extends only for thirty days -8'*0(176 The relator in Maddox v. Wettman sought DIWHU WKH Ă&#x20AC;OLQJ RI D QRWLFH RI DSSHDO In re Boyd, 34 S.W.3d a writ of mandamus to require the trial court â&#x20AC;&#x153;to proceed to 708, 709â&#x20AC;&#x201C;11 (Tex. App.â&#x20AC;&#x201D;Fort Worth 2000, orig. proceeding). judgment in a divorce case.â&#x20AC;? 613 S.W.2d 806, 806 (Tex. Civ. Therefore, any such temporary orders issued after that time App.â&#x20AC;&#x201D;Houston [14th Dist.] 1981, orig. proceeding). The trial are void, making them subject to attack by mandamus. Id. had taken place on July 3, 1980, but â&#x20AC;&#x153;[i]n spite of proper re- at 711 (â&#x20AC;&#x153;Mandamus is the appropriate remedy when a trial TXHVWV E\ WKH SDUWLHV Âľ WKH WULDO FRXUW GLG QRW Ă&#x20AC;OH D MXGJPHQW court enters a void order.â&#x20AC;?). XQWLO 0DUFK Đ°DQG WKHQ RQO\ DIWHU WKH FRXUW RI DSpeals issued an opinion on March 4, 1981, holding that â&#x20AC;&#x153;the EXCEPTIONAL CASES. Used selectively, â&#x20AC;&#x153;mandamus petition for a writ of mandamus would be granted if a judg- FDQ FRUUHFW FOHDU HUURUV LQ H[FHSWLRQDO FDVHV DQG DÍżRUG DSment of the trial court in this matter was not immediately propriate guidance to the law without the disruption and Ă&#x20AC;OHG Âľ Id %HFDXVH WKH WULDO FRXUW Ă&#x20AC;QDOO\ Ă&#x20AC;OHG WKH MXGJPHQW burden of interlocutory appeal.â&#x20AC;? Prudential, 148 S.W.3d at albeit under threat of mandamus, the court of appeals ulti- $ FDVH¡V FODVVLĂ&#x20AC;FDWLRQ DV ´H[FHSWLRQDO Âľ KRZHYHU LV mately denied the petition for mandamus as being moot. Id. a key consideration, because â&#x20AC;&#x153;[a]ppellate courts must be PLQGIXO WKDW WKH EHQHĂ&#x20AC;WV RI PDQGDPXV DUH HDVLO\ ORVW E\ APPEALS. In addition to temporary orders pending a overuse.â&#x20AC;? Id. Ă&#x20AC;QDO GHFUHH WKH )DPLO\ &RGH SURYLGHV IRU WHPSRUDU\ RUGHUV Robinson C. Ramsey is a shareholder in Langley pending an appeal from such a decree. See TEX. FAM. CODE § %DQDFN ,QF +H LV ERDUG FHUWLĂ&#x20AC;HG LQ FLYLO 6.709 (West 2006) (providing for temporary orders in a diappellate law and family law by the Texas Board vorce case); TEX. FAM. CODE § 109.001 (West 2014) (making of Legal Specialization. WHPSRUDU\ RUGHUV DYDLODEOH LQ D VXLW DÍżHFWLQJ WKH SDUHQW child relationship). 6HFWLRQ VSHFLĂ&#x20AC;FDOO\ VWDWHV WKDW ´>D@ WHPSRUDU\ order rendered under this section is not subject to interlocutory appeal.â&#x20AC;? TEX. FAM. CODE § 109.001(c)). Courts have construed this provision to mean that â&#x20AC;&#x153;an appellate court lacks jurisdiction, in the pending appeal, over a complaint about the denial of a temporary order rendered during the appeal.â&#x20AC;? erred in striking [the] plea in intervention,â&#x20AC;? accordingly granted the petition for writ of mandamus, and ordered the trial court to withdraw its order striking that plea. Id.

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15 2SZIQFIV (IGIQFIV Ä&#x20AC;ÞÿÄ&#x192;

Comparing Collaborative and Litigation Divorces %\ +DUU\ / 0XQVLQJHU - ' 3K ' DQG 0LFKDHO ( *DOOHU\ 3K '

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personal problems worse. Survey method. To answer these questions, we compared the cost, difĂ&#x20AC;FXOW\ DQG WLPH UHTXLUHG WR UHVROYH a sample of collaborative cases with a demographically similar sample of litigation cases. Using standard survey methods, we collected demographic An information gap. There is quite information on each client, the cost of a lot of research about collaborative di- each case, the time required to resolve vorce. For example, the International WKH GLYRUFH DQG UDWLQJV RI KRZ GLÎ&#x20AC;FXOW Academy of Collaborative Profession- the case was to handle. We recorded als found that most collaborative di- each clientâ&#x20AC;&#x2122;s age, length of marriage, vorces resolve within eight months. annual income, education, number of Well over 90% settle. Around 2% of children, size of the community estate, collaborative couples reconcile, and the the presence of mental health problems, remaining few opt for litigation. The whether the parties were realistic about average cost of a collaborative divorce the divorce, their level of trust, their is around $24,000. Easy cases average ability to feel empathy, their level of anDURXQG ZKLOH GLÎ&#x20AC;FXOW FDVHV ger, the amount of denial they showed, cost approximately $32,000. Using two and the experience levels of the profesattorneys for a collaborative divorce sionals involved. We statistically compared the avgenerally costs less than using two atWRUQH\V D Ă&#x20AC;QDQFLDO SURIHVVLRQDO DQG D HUDJH FRVW GXUDWLRQ DQG GLÎ&#x20AC;FXOW\ RI mental health professional. However, collaborative divorces with the average costs vary substantially by complexity FRVW GXUDWLRQ DQG GLÎ&#x20AC;FXOW\ RI OLWLJDWof the case and cooperativeness of the HG GLYRUFHV WR VHH LI WKHUH DUH VLJQLĂ&#x20AC;FDQW GLÍżHUHQFHV :H ZDQWHG WR NQRZ ZKHWKclients. By contrast, there is little informa- er the average collaborative divorce tion about the relative costs of collab- costs less compared with the average orative vs. litigation divorces. We do litigated divorce, whether collaboranot know if they take equally long to tive or litigated divorces took longer to resolve. We are not certain which cli- resolve, and whether collaborative dients are more suited to the collabora- vorces or litigated divorces were more tive process and which clients should GLÎ&#x20AC;FXOW WR KDQGOH ,Q DGGLWLRQ ZH H[choose litigation. Seasoned collabora- plored which personal characteristics tive practitioners believe clients with RI RXU FOLHQWV FRQWULEXWHG WR WKH GLÍżHUmental health problems, substance HQFHV LQ FRVW GXUDWLRQ DQG GLÎ&#x20AC;FXOW\ RI abuse issues, and unrealistic expecta- collaborative vs. litigation divorces. tions are poor candidates for the colSurvey results. We found that the laborative process. However, we do not know if these same clients would average litigated divorce in our samfare better in a courtroom, or whether ple cost $89,250 while the average colthe stress of litigation might make their laborative divorce cost only $14,269. his article reports the results of an author survey of costs and client characteristics of collaborative vs. litigation divorces. The results provide useful information for attorneys representing divorce clients when advising them about divorce options.

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:H GLVFRYHUHG WKDW DÎ XHQW FOLHQWV with average annual incomes around $100,000, are more likely to select the collaborative process for divorce. Our UHVXOWV DUH KLJKO\ VLJQLĂ&#x20AC;FDQW )RU H[ample, the likelihood that collaborative and litigated divorces cost the same on average is less that two in one hundred. This means if we replicated our study RQH KXQGUHG WLPHV ZH ZRXOG Ă&#x20AC;QG WZR samples where the average cost of a collaborative divorce is equal to or higher than the average cost of a litigated divorce; in the other ninety eight samples, ZH ZRXOG Ă&#x20AC;QG WKDW WKH DYHUDJH FRVW RI a collaborative divorce is less than the average cost of a litigated divorce. 0RUHRYHU WKH OLNHOLKRRG WKDW DÎ Xent divorce clients chose the collaborative process by chance is less than two in one thousand. This means it would require one thousand replications of RXU VWXG\ WR Ă&#x20AC;QG WZR VDPSOHV LQ ZKLFK DÎ XHQW FOLHQWV VHOHFWHG OLWLJDWLRQ PRUH often than they chose the collaborative process. :H IRXQG QR VLJQLĂ&#x20AC;FDQW GLÍżHUHQFHV LQ WKH GXUDWLRQ RU UDWHG GLÎ&#x20AC;FXOW\ RI FROlaborative divorces compared with litigation divorces in our sample. 7KHUH ZDV D VLJQLĂ&#x20AC;FDQW GLÍżHUHQFH LQ WKH ZD\ Ă&#x20AC;QDQFLDO SURIHVVLRQDOV DUH used. A little over half the collaborative GLYRUFHV XVHG RQH Ă&#x20AC;QDQFLDO SURIHVVLRQal, while most litigated divorces used QR Ă&#x20AC;QDQFLDO SURIHVVLRQDO RU HDFK VLGH KLUHG GXHOLQJ Ă&#x20AC;QDQFLDO SURIHVVLRQDOV 7KLV GLÍżHUHQFH ZRXOG KDSSHQ RQH WLPH in a hundred by chance. We found a VLPLODU VLJQLĂ&#x20AC;FDQW GLÍżHUHQFH LQ WKH SDWtern of how mental health professionals are used. Most of the collaborative divorces used one mental health professional, while most litigated divorces

16 2SZIQFIV (IGIQFIV Ä&#x20AC;ÞÿÄ&#x192;

used no mental health professional or each side hired dueling mental health H[SHUWV 7KLV GLÍżHUHQFH ZDV VR VWDWLVWLFDOO\ VLJQLĂ&#x20AC;FDQW LW ZRXOG KDSSHQ RQO\ one time in a thousand by chance. We also found that male litigation clients are more likely to show signs of mental illness compared with male FROODERUDWLYH FOLHQWV 7KLV GLÍżHUHQFH would happen four times out of a hundred samples by chance. In addition, we found male litigation clients had VLJQLĂ&#x20AC;FDQWO\ PRUH XQUHDOLVWLF H[SHFWDtions compared with male colODERUDWLYH FOLHQWV 7KLV GLÍżHUence would happen one time in a hundred samples by chance. All the collaborative divorces in our sample settled out of court; by contrast, the majority of litigation divorces were resolved WKURXJK WULDO 7KLV GLÍżHUHQFH would happen less than one time in a thousand samples by chance. No other client characWHULVWLFV GLÍżHUHG EHWZHHQ WKH collaborative and litigation diYRUFHV 6SHFLĂ&#x20AC;FDOO\ WKH SUHVHQFH RI PLQRU FKLOGUHQ GLÎ&#x20AC;FXOW\

Litigation

Collaborative

$89,250

ivorce Cost

$14,269

Av

D ge a r e

resolving the case, the level of anger, the amount of client denial, the existence of female mental health problems, the realism of female client expectations, and the time needed to reVROYH WKH GLYRUFH VKRZHG QR VLJQLĂ&#x20AC;FDQW GLÍżHUHQFHV EHWZHHQ FROODERUDWLYH DQG litigation cases. In summary, we found that the average collaborative divorce costs sigQLĂ&#x20AC;FDQWO\ OHVV WKDQ WKH DYHUDJH OLWLJDWLRQ GLYRUFH DQG DÎ XHQW FOLHQWV PRUH often choose the collaborative process. :H IRXQG QR VLJQLĂ&#x20AC;FDQW GLÍżHUHQFHV LQ WKH GXUDWLRQ RU GLÎ&#x20AC;FXOW\ RI FROODERUDtive compared to litigation divorces in our samples. Approximately half the FROODERUDWLYH GLYRUFHV XVHG RQH Ă&#x20AC;QDQcial professional while some litigated GLYRUFHV XVHG GXHOLQJ Ă&#x20AC;QDQFLDO SURIHVsionalsâ&#x20AC;&#x201C;one for each side. A majority of collaborative divorces used a mental health professional while few litigated divorces did. Interestingly, male litigation clients are more likely to show signs of mental illness compared with male collabRUDWLYH FOLHQWV DOWKRXJK WKH GLÍżHUHQFH ZDV RQO\ PRGHUDWHO\ VLJQLĂ&#x20AC;FDQW 0DOH litigation clients were also less realistic compared with male collaborative clients. No other client characteristics differentiated between collaborative and litigation divorces. Thus, in addition to WKH REYLRXV EHQHĂ&#x20AC;WV RI WKH FROODERUDWLYH SURFHVV VXFK DV FRQĂ&#x20AC;GHQWLDOLW\ VFKHGuling convenience, transparent communications, win-win settlement plans tailored to the needs of the family, and preserving family relations after the divorce, our results show that the collaborative process costs less than a litigated divorce, DQG WKDW DÎ XHQW FOLents prefer the collaborative process over a litigated divorce when they understand their options and have an opportunity to choose. We discovered that male clients who had mental problems or unrealistic expectations more often resolved their divorce through litigation rather than the collaborative process. It is not clear why this happened. Perhaps their

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attorneys recognized the mental health issues or the unrealistic expectations and recommended litigation as the best way to resolve the divorce. Alternatively, because the male clients were impaired, they may have made poor choices. A third possible explanation is that male clientsâ&#x20AC;&#x2122; mental health problems and unrealistic expectations were triggered or exacerbated by the stresses of litigation. Our results are consistent with and H[WHQG HDUOLHU Ă&#x20AC;QGLQJV E\ WKH ,QWHUQDtional Academy of Collaborative Professionals. For example, we found that almost all collaborative divorces settle; the cost of our collaborative divorces was similar to earlier reports about the cost of collaborative divorces; and client FKDUDFWHULVWLFV LQĂ XHQFH WKH RXWFRPH RI collaborative and litigation divorces. Conclusion. We found that the average collaborative divorce costs VLJQLĂ&#x20AC;FDQWO\ OHVV WKDQ WKH DYHUDJH OLWLJDWHG GLYRUFH 6SHFLĂ&#x20AC;FDOO\ WKH DYHUDJH collaborative divorce in our sample cost $14,269, while the average litigated divorce cost $89,250. We also found that DÎ XHQW FOLHQWV SUHIHU WKH FROODERUDWLYH process to a litigated divorce. By contrast, male clients who choose litigation are more likely to show signs of mental illness and are more likely to have unrealistic expectations compared with male clients in the collaborative process. More research is needed to determine why this appears to be the case and which clients are best suited to the collaborative process and which clients should opt for litigation.

17 2SZIQFIV (IGIQFIV Ä&#x20AC;ÞÿÄ&#x192;

Harry Munsinger is a partner in Munsinger & Munsinger, 207 W. Summit, San Antonio, Texas 78212. His practice is limited to collaborative family law, probate, and estate planning. Michael E. Gallery is the founder of OPIS Consultants. He works ZLWK RUJDQL]DWLRQV WR GHĂ&#x20AC;QH business needs, determine the required performance to meet those needs, and evaluate the structure required to facilitate the desired performance.

'UXJ DQG $OFRKRO 0RQLWRULQJ &RQVLGHUDWLRQV for Family Law Courts %\ -XVWLFH -DVRQ 3XOOLDP

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Fourth Court Update

ecently, I had the privilege of presenting at the 41st Annual Advanced Family Law Course alongside family law attorney Christina Molitor. Together we discussed drug and alcohol testing in family law cases. All too often, family courts are faced in child custody cases with substance abuse by a parent or conservator. When VXFK DEXVH DÍżHFWV WKH FKLOG WKH IDPLO\ court is obliged to act. Under the Family Code, â&#x20AC;&#x153;[t]he best interests of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.â&#x20AC;? TEX. FAM. CODE ANN. § 153.002 (West 2014). Accordingly, family courts have a legitimate interest in ensuring parents and conservators do not abuse alcohol or use illegal substances. To that end, family courts have the discretion to order drug and alcohol testing in appropriate situations. See TEX. FAM. CODE ANN. § 153.253, .256 (West 2014); see also Newell v. Newell, 349 S.W.3d 717, 722 (Tex. App.â&#x20AC;&#x201D;Fort Worth 2011, no pet.). Drug and alcohol testing can aid the court in furthering the best interest of the child. Requiring a parent or conservator to submit to monitoring serves two purposes. First, the testing can determine whether there is a substance abuse problem that needs to be addressed; and second, the testing can serve to deter drug or alcohol abuse because individuals who know they will be tested may be less likely to use. Often family courts rely on urinalysis for drug and alcohol testing. Although urinalysis is the standby drug and alcohol test, it does have drawbacks. Urinalysis provides only a snapshot of what substances are present in the individualâ&#x20AC;&#x2122;s system at the time the sample was given, and because most drugs and alcohol dissipate quickly, urinalysis is RQO\ HÍżHFWLYH LQ GHWHFWLQJ VXEVWDQFHV used shortly before the sample was taken. Further, urinalysis testing is designed

to simply determine the presence of a substance in the individualâ&#x20AC;&#x2122;s urine and cannot be used to determine how much of a substance was used or when it was used. Whatâ&#x20AC;&#x2122;s more, because the urinalysis is easily tampered with, collection of the sample must be strictly controlled. There may be an increasing need for family courts to have more options to monitor parents and conservators for substance abuse to ensure children receive the love, attention, guidance, and direction they need to become healthy, functioning adults. To meet this need, family law courts may want to take a page from the playbook of the criminal courts. Working with the probation departments and pretrial services, criminal courts use a variety of devices to monitor the drug and alcohol use of individuals who are charged with a crime in the pretrial phase of a case or supervised by probation after a conviction. The Secure Continuous Remote Alcohol Monitor or SCRAM device is an ankle monitor that samples the individualâ&#x20AC;&#x2122;s perspiration for alcohol every thirty minutes. The device then analyzes the perspiration and provides a measurement of any alcohol in the individualâ&#x20AC;&#x2122;s system. The results may be uploaded daily and reported to the court. The criminal courts also use portable versions of the breathalyzer, a decades-old technology used to detect and measure alcohol in an individualâ&#x20AC;&#x2122;s breath. These devices require the individual to provide a breath sample several times each day. The breath is analyzed for alcohol and the results are then uploaded and reported to the court. Because the SCRAM and portable breathalyzers take frequent samples and quantify any alcohol present in the samples, they provide the court with a better picture of the nature of the individualâ&#x20AC;&#x2122;s alcohol usage. To monitor for the use of illegal drugs, some criminal courts use the drug VZHDW SDWFK 7KH SDWFK LV DÎ&#x20AC;[HG WR DQ

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individual (much like a nicotine patch) IRU XS WR WHQ GD\V :KLOH DÎ&#x20AC;[HG WKH patch absorbs the individualâ&#x20AC;&#x2122;s sweat. If the individual uses drugs while wearing the patch, his or her sweat will deliver traces of the drugs to the patch. At the end of that term, the patch is removed and analyzed for drug compounds. The patch can be quickly applied and removed. Because the patch continually monitors for the entire time it is on the individual, it provides a greater window of detection than urinalysis. Further, the patch is less vulnerable to tampering than urinalysis. $OWKRXJK WKHVH WRROV FDQ EHQHĂ&#x20AC;W ERWK the court and parties in a child custody suit, family courts and practitioners should be aware of the potential evidentiary concerns caused by the admission of results from these tests. Because the results of any drug or alcohol WHVWLQJ DUH VFLHQWLĂ&#x20AC;F LQ QDWXUH WKH SURSHU predicates must be established before the results can be determined to be reliable. In conclusion, for family courts presented with evidence or allegations of substance abuse in child-custody cases, a number of options exist. Family courts should be aware they have monitoring tools available to them to consider in appropriate circumstances. Justice Jason Pulliam has served on the Fourth Court of Appeals in San Antonio, Texas, since being appointed to the court by Governor Rick Perry on January 8, 2015. Prior to serving on the court of appeals, Justice Pulliam was Judge of Bexar County, County Court at Law No. 5 from 2010-2014. -XVWLFH 3XOOLDP KDV DOVR ZRUNHG DW WKH ODZ Ă&#x20AC;UPV Ball &Weed, P.C. and Ford & Massey, P.C. and served as a JAG or military lawyer in the United States Marine Corps where, in 2002, he was the recipient of the Eastern Region Defense &RXQVHO RI WKH <HDU DZDUG -XVWLFH 3XOOLDP graduated from Texas Southern Universityâ&#x20AC;&#x2122;s Thurgood Marshall School of Law with honors.

18 2SZIQFIV (IGIQFIV Ä&#x20AC;ÞÿÄ&#x192;

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Federal Court Update %\ 6ROHGDG 9DOHQFLDQR DQG 0HODQLH )U\

Federal Court Update

,I \RX DUH DZDUH RI D :HVWHUQ 'LVWULFW RI 7H[DV RUGHU WKDW \RX EHOLHYH ZRXOG EH RI LQWHUHVW WR WKH ORFDO EDU DQG VKRXOG EH VXPPDUL]HG LQ WKLV FROXPQ SOHDVH FRQWDFW 6ROHGDG 9DOHQFLDQR VYDOHQFLDQR#VYW[ODZ FRP RU 0HODQLH )U\ PIU\#G\NHPD FRP ZLWK WKH VW\OH DQG FDXVH QXPEHU RI WKH FDVH DQG WKH HQWU\ GDWH DQG GRFNHW QXPEHU RI WKH RUGHU Summary Judgment; Limitations; Title VII Chavez v. City of San Antonio, No. SA-14CV-527-XR (Rodriguez, Aug. 19, 2015) Court granted defendantâ&#x20AC;&#x2122;s motion for summary judgment and dismissed defendantâ&#x20AC;&#x2122;s motion to VWULNH DV PRRW 3ODLQWLÍż &KDYH] a detective with the San Antonio Police Department, raised claims against the City for (1) gender discrimination, (2) sexual harassment, and (3) retaliation in violation of Title VII. Because ((2& FKDUJH PXVW EH Ă&#x20AC;OHG ZLWKLQ 180 days after the alleged unlawful employment practice, which period is extended to 300 days if â&#x20AC;&#x153;the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice,â&#x20AC;? any facts or evidence of retaliatory acts occurring more than 300 days before the TWC/EEOC &RPSODLQW ZDV Ă&#x20AC;OHG DUH WLPH EDUUHG from the courtâ&#x20AC;&#x2122;s consideration. The court held Chavez abandoned her sex discrimination and harassment FODLPV EHFDXVH VKH RÍżHUHG QR argument and no competent summary judgment evidence to

support those two claims. Chavez failed to raise genuine issues of material fact to survive summary judgment because she did not demonstrate that a reasonable WULHU RI IDFW FRXOG Ă&#x20AC;QG WKH &LW\¡V RÍżHUHG QRQGLVFULPLQDWRU\ UHDVRQ was pretext for retaliation and was the but-for cause of her not being assigned the PT Coordinator position, or that any other actions VKH VXÍżHUHG ZHUH PDWHULDOO\ adverse employment actions. Any actions taken against her husband, such as his alleged demotion or transfer, were irrelevant in SODLQWLͿ¡V FDVH DV VKH PXVW HVWDEOLVK WKDW VKH VXÍżHUHG DQ DGYHUVH DFWLRQ Even assuming the failure to promote her to PT Coordinator was an adverse action, and that adverse action was causally connected to some protected activity, Chavez failed to defeat the pretext element. Further, a constructive comment at a performance review is not discipline that is materially adverse action, as it has produced no harm and would not dissuade a reasonable person from opposing discrimination. Having to answer interrogatories after sending an email to what could be considered inappropriate recipients outside the chain of command is not a materially adverse action, produced no harm and would not dissuade a reasonable person from opposing discrimination. Rule 59(e) Motion; Patent Infringement, Preliminary Injunction; Motion for Consideration M-I, LLC v. FPUSA, LLC, No. SA:15-CV406-DAE (Ezra, July 21, 2015) 3ODLQWLÍż Ă&#x20AC;OHG D PRWLRQ IRU preliminary injunction, asking

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the court to enjoin defendant IURP LQIULQJLQJ SODLQWLͿ¡V SDWHQW UHODWLQJ WR RLO GULOOLQJ Ă XLG recovery shaker systems, which injunction was granted. Defendant Ă&#x20AC;OHG D PRWLRQ IRU UHFRQVLGHUDWLRQ which the court denied. An order granting a preliminary injunction is an interlocutory order. Pursuant to FRCP 54(b), district courts may entertain motions for reconsideration on interlocutory orders and, in this district, do so under the same standards that govern FRCP 59(e) motions to alter RU DPHQG D Ă&#x20AC;QDO MXGJPHQW 7KUHH rationales can support a motion to alter or amend under FRCP 59(e): (1) the judgment exhibits â&#x20AC;&#x153;a manifest error of law or factâ&#x20AC;?; (2) the litigant wishes to present newly discovered evidence; or (3) â&#x20AC;&#x153;there has been an intervening change in the controlling law.â&#x20AC;? However, a Rule 59 motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could KDYH EHHQ RÍżHUHG RU UDLVHG EHIRUH the entry of judgment, and instead is an â&#x20AC;&#x153;extraordinary remedyâ&#x20AC;? that should be used â&#x20AC;&#x153;sparingly.â&#x20AC;? Court was not persuaded that it committed a manifest error in holding that (1) SODLQWLÍż HVWDEOLVKHG WKDW LW ZRXOG be irreparably harmed in the absence of an injunction; and (2) the balance of equities factor favors QHLWKHU SODLQWLÍż QRU GHIHQGDQW Court was unpersuaded that its original construction of the terms ´Ă&#x20AC;UVW VFUHHQÂľ DQG ´FRQWUROOLQJ DLU Ă RZÂľ UHSUHVHQWV D PDQLIHVW HUURU amounting to a complete disregard of the controlling law. Court held WKDW LWV Ă&#x20AC;QGLQJV UHJDUGLQJ WKH degassing chamber and the validity

20 2SZIQFIV (IGIQFIV Ä&#x20AC;ÞÿÄ&#x192;

of the 288 Patent did not constitute manifest error. 6HWWOHPHQW 'HPDQGV $PRXQW LQ Controversy; Motion to Remand Beudoin v. Bass Pro Outdoor World, LLC, No. SA-15-CV-513-XR (Rodriguez, Aug. 3, 2015) &RXUW GHQLHG SODLQWLͿ¡V PRWLRQ to remand. State court petition is used to determine the amount in controversy. However, if the petition does not include a VSHFLĂ&#x20AC;F PRQHWDU\ GHPDQG WKH removing party must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000 and can do so if (1) it is apparent from the face of the petition that the claims are likely to exceed $75,000, or, alternatively, (2) the defendant sets forth summary judgment type evidence of facts in FRQWURYHUV\ WKDW VXSSRUW D Ă&#x20AC;QGLQJ of the requisite amount. The Fifth Circuit has generally held that when the petition alleges extensive injuries, it may be facially apparent that the amount in controversy exceeds $75,000, but where the complaint describes injuries and damages inadequately and without VSHFLĂ&#x20AC;FLW\ LW ZLOO JHQHUDOO\ QRW be facially apparent. In response, GHIHQGDQW DUJXHG WKDW SODLQWLÍż demanded an amount greater than $75,000 in settlement, and attached D FRS\ RI SODLQWLͿ¡V GHPDQG OHWWHU of more than $300,000, which GHPDQG RXWOLQHG WKH SODLQWLͿ¡V medical expenses to support the demand. Therefore, the Court found that the preponderance of the summary judgment evidence established that more than $75,000 was in controversy. Personal Jurisdiction; Evidence Cantu v. TitleMax, Inc., No. 5:14-CV-628RP (Report and Recommendation by Bemporad; accepted by Pitman, July 23, 2015) 3ODLQWLÍżV EURXJKW FODVV DFWLRQ XQGHU Driverâ&#x20AC;&#x2122;s Protection Act, alleging defendants impermissibly obtained state motor vehicle records of persons who had previously sought a car title loan from other companies in order to solicit customers. Court denied defendant TMX Finance LLCâ&#x20AC;&#x2122;s motion to dismiss for lack of personal jurisdiction. TMX provided vice-

SUHVLGHQW¡V DÎ&#x20AC;GDYLW VWDWLQJ WKDW TMXâ&#x20AC;&#x2122;s principal place of business was in Georgia, that it has never engaged in providing customer products or service in Texas, and has never accessed driving records of Texas residents. Court relied on SODLQWLÍżV¡ FRQWUDYHQLQJ HYLGHQFH which included TMXâ&#x20AC;&#x2122;s annual SEC Report, the Linked-In webpage for 70;¡V &KLHI 2SHUDWLQJ 2Î&#x20AC;FHU D page from an employment website called Simply Hired, and a page from TMXâ&#x20AC;&#x2122;s â&#x20AC;&#x153;careersâ&#x20AC;? website. Statements in these documents showed TMX conducted business in Texas, included all title loans of its subsidiaries as accounts receivable in a consolidated balance VKHHW RÍżHUHG MREV LQ 7H[DV DQG KDG D UHJLRQDO FRUSRUDWH RÎ&#x20AC;FH LQ 'DOODV &RXUW FRQVWUXHG FRQĂ LFWLQJ HYLGHQFH LQ SODLQWLÍżV¡ IDYRU DQG IRXQG LW VXÎ&#x20AC;FLHQW IRU SULPD IDFLH case of personal jurisdiction. Evidence showed TMX had VLJQLĂ&#x20AC;FDQW FRQWURO RI VXEVLGLDU\ TitleMax of Texas. Same evidence WKDW HVWDEOLVKHG VXÎ&#x20AC;FLHQW PLQLPXP contacts also defeated any argument that exercise of jurisdiction would be unreasonable. Spoliation; Sanctions; Prejudice F & J Samame, Inc. v. Arco Iris Ice Cream, No. SA-13-CV-365-XR (Rodriguez, July 2, 2015) 3ODLQWLÍż EURXJKW /DQKDP $FW and other claims alleging that the packaging of defendantâ&#x20AC;&#x2122;s candy products had been wrongfully copied to look like SODLQWLͿ¡V SURGXFWV 3ODLQWLÍż Ă&#x20AC;OHG VHYHUDO PRWLRQV WR FRPSHO seeking documents that related to defendantâ&#x20AC;&#x2122;s decision in 2010 or 2011 to package, label, and market candy products. Because RI QXPHURXV GLVFRYHU\ Ă&#x20AC;JKWV court appointed a special master to examine defendantâ&#x20AC;&#x2122;s hard drives, and ordered defendant to preserve all hard drives. On the afternoon of the courtâ&#x20AC;&#x2122;s order and the following morning, an IT person for the family-owned defendant ran CCleaner on a laptop and PC. Rather than use CCleanerâ&#x20AC;&#x2122;s default options, the IT person also checked the â&#x20AC;&#x153;wipe free spaceâ&#x20AC;? function.

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renewal in 2017, but she would like to stay in her position and continue to for a pilot program, the Project Sendero PDNH WKH V\VWHP PRUH HÎ&#x20AC;FLHQW DQG FRVW re-entry court came into existence. HÍżHFWLYH 2QH LGHD VKH KRSHV WR LPSOHIn exchange for program admis- ment involves establishing a capital hasion, a defendant agrees to more inten- beas corpus unit to assist state defense sive supervision than the normal ba- ODZ\HUV ZKR DUH Ă&#x20AC;JKWLQJ GHDWK SHQDOW\ sic terms of supervised release. Many cases in the federal system. Given the Ă&#x20AC;QG WKH EHQHĂ&#x20AC;WV JUHDWO\ RXWZHLJK WKH recent number of death penalty cases downside of additional scrutiny. The overturned based on DNA exoneradefendants work closely with mem- tions, the initiative seems critical to probers of the â&#x20AC;&#x153;Re-entry Council,â&#x20AC;? which tecting the rights of innocent citizens. is comprised of agencies and organizaMaureen urges young lawyers WLRQV ZLWK D YHVWHG LQWHUHVW LQ Ă&#x20AC;QGLQJ joining the ranks of criminal defense ways to cut back on recidivism rates by attorneys to take advantage of all availhelping inmates get re-oriented into the able opportunities for free training and community. The participants include education. She suggests contacting WKH ORFDO SUREDWLRQ RÎ&#x20AC;FH KDOIZD\ WKH ORFDO 3XEOLF 'HIHQGHU¡V 2Î&#x20AC;FH WR house providers, local community col- shadow a public defender in the courtleges, and charity organizations such as room. Young lawyers can then see how Goodwill. GHGLFDWHG JRYHUQPHQW HPSOR\HHV Ă&#x20AC;JKW Maureen contends it is critical to to protect the rights of the indigent of VHW XS PRGHUDWH WR KLJK ULVN RÍżHQG- our society and others no one else will ers with a plan for how to succeed on represent. Public defenders carry out the outside before they actually get their mission day in and day out, all out. Providing them with the proper WKH ZKLOH EHLQJ ZRHIXOO\ XQGHUVWDÍżHG WKHUDS\ DQG EHKDYLRU PRGLĂ&#x20AC;FDWLRQ DQG XQGHUSDLG 0DXUHHQ H[HPSOLĂ&#x20AC;HV S techniques is essential for coping with the best. the outside world they will encounter. Stephen H. Gordon is If they complete the program successa general practitioner fully, they may even be eligible for early and founder of The termination of supervised release. Gordon Law Firm, P.C. His practice consists Maureen hopes to build on these of family law, criminal successes and continues to look for law, personal injury, ways to improve the Public Defenderâ&#x20AC;&#x2122;s bankruptcy, and wills 2Î&#x20AC;FH +HU SRVLWLRQ LV RÎ&#x20AC;FLDOO\ XS IRU

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and estate planning.

&RQWLQXHG IURP SDJH Special master estimated over Ă&#x20AC;OHV DQG IROGHUV ZHUH GHOHWHG and unable to be recovered. Court JUDQWHG LQ SDUW SODLQWLͿ¡V PRWLRQ IRU VDQFWLRQV 3ODLQWLÍż VXÍżHUHG QR prejudice in establishing its trade dress infringement claims as the DOOHJHGO\ RÍżHQGLQJ FDQG\ EDJV could still be shown to the jury. But SODLQWLÍż ZDV SRWHQWLDOO\ SUHMXGLFHG because possible evidence of willful infringement was lost. Court ordered defendant to reimburse SODLQWLÍż IRU DWWRUQH\¡V IHHV LQFXUUHG preparing all discovery motions, preparing for discovery hearings, and taking all defendantâ&#x20AC;&#x2122;s depositions. Court also granted leave to re-depose IT person and other witnesses. Court noted that its RUGHU GLG QRW IXOO\ UHVWRUH SODLQWLÍż

San Antonio Lawyer

because it did not address the loss of evidence that may establish willful infringement. Court noted the new depositions may provide evidence relevant to willfulness. &RXUW GHQLHG SODLQWLͿ¡V UHTXHVW IRU a spoliation instruction without prejudice to re-urging request after q completion of discovery.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC. Melanie Fry practices commercial litigation and appellate law with Dykema Cox Smith.

22 2SZIQFIV (IGIQFIV Ä&#x20AC;ÞÿÄ&#x192;

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