Early Negotiation Moves Matter Social Media at Work Gresham, Davis, Gregory, Worthy & Moore: A Brief History
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Features
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The Supreme Carolyn Fuentes By Farley P. Katz
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Checkmate: Early Moves (IÁRI 2IKSXMEXMSR 3YXGSQIW By Don Philbin
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Social Media at Work: An 9THEXI SR )ZSPZMRK 0E[ By Dawn B. Finlayson
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+VIWLEQ (EZMW +VIKSV] Worthy & Moore, P.C. A Part of Texas History By Richard B. Moore
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Departments ON THE COVER: Marty Truss is on a Mission By Erin Boren
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Fourth Court Update: Mental Illness = No Shame By Justice Luz Elena D. Chapa
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Federal Court Update By Soledad Valenciano and Melanie Fry
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September-October 2015
On the Cover: San Antonio Bar Association President Marty Truss with Julie Truss, Andy and Paige. - Photo by Hugh McWilliams. Photo contributions from: Carolyn Fuentes (p. 3, 5, 22), Don Philbin (Graphics - p. 7, 8, 9, 11), San Antonio Express-News (p. 18) 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.
San Antonio Lawyer
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Contents
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Well done, Charlie! By Sara Murray
Lawyer San Antonio
The San Antonio Bar Association 100 Dolorosa, San Antonio, Texas 78205 )D[
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
Bexar County Women’s Bar Association Executive Director Marissa Helm Jimmy Allison San Antonio Black Lawyers Association Stephanie Boyd
Editors Editor in Chief Sara Murray Articles Editor Natalie Wilson
Departments Editor Leslie Sara Hyman
Managing Editor Erin Boren
Editor in Chief Emeritus Hon. Barbara Nellermoe
San Antonio Lawyer
Board of Editors Sara Murray, Chair
3DW + $XWU\ 9LFH &KDLU
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 Alexis Adams Scott Ronald D. Smith Regina Stone-Harris Johnny W. Thomas David Willis Natalie Wilson Kevin Yeary
Erin Boren
Chellie Thompson
For advertising inquiries, contact:
Monarch Media & Consulting, Inc. 512.293.9277 chellie@monarchmediainc.com Layouts by Erin Boren Managing Editor, San Antonio Bar Association
IS ON A
If you’ve ever found yourself in a room with James M. “Martyâ€? Truss, nine times out of ten you were 100 percent aware of it. Marty’s presence is insistent and his laugh is a seal of approval on the conversation. ,I \RX¡YH VHHQ KLV R΀FH \RX NQRZ it suits him well — picture frames line WKH ZDOOV DQG ZLQGRZSDQHV Ă€OOHG ZLWK FKHHUIXO IDFHV LQ IDU RÍż ORFDWLRQV OLNH 6FRWODQG ZLWK KLP DQG RWKHUV JROĂ€QJ KXQWLQJ RU H[SORULQJ WKH VLWHV +LV GHVN LV IXOO RI SDSHUZRUN LQ VWDFNV DV WDOO DV Ă€OLQJ FDELQHWV 2XWVLGH KLV R΀FH ZLQdow, the Tower of the Americas overORRNV KLP ZKLOH KH ZRUNV It’s a “big timeâ€? feel, that’s for sure, and Marty’s list of achievements and accolades measures up. He’s a partner DW '\NHPD &R[ 6PLWK ZKHUH KH¡V SUDFticed oil and gas, intellectual property and business litigation since 1996. He’s consistently been active in local, state and national bar activities and charitable organizations. He’s served on multiSOH ERDUGV FRPPLWWHHV DQG WDVN IRUFHV It’s clear: Marty is a leader, and that’s exactly what he plans to do at the San Antonio Bar Association (SABA). “Lead by example,â€? says Marty, summing up his term goals. “The legal community is ready for SABA to be more inclusive and relevant. We have a great board this term, and I’m ready to lead us there.â€? Marty intends to improve SABA’s current reputation by strengthening ties between the organization and its memEHUV DQG E\ PDNLQJ 6$%$ PRUH LQFOX-
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sive and relevant. SABA is Yours: ´6$%$ LV OLNH PRVW other organizations — you will get more out of it when you put more into LW Âľ VD\V 0DUW\ ´7KH Ă€UVW WKLQJ \RX FDQ do to get more out of SABA is to treat LW OLNH LW LV \RXUV KHOS GLVSHO P\WKVÂŤ encourage your friends and colleagues to join and actively participate.â€? SABA is Inclusive: Marty plans to grow membership and strengthen ties between the legal family and the San Antonio community. “I’ve heard it said RYHU WKH \HDUV 6$%$ LV MXVW IRU ELJ Ă€UP lawyers, for litigators only, for civil lawyers — I say baloney to all of it! Every DWWRUQH\ FDQ EHQHĂ€W IURP 6$%$ , YRZ to prove it to members and nonmemEHUV DOLNH Âľ SABA is Relevant: ´, VWULYH WR PDNH SABA relevant to every lawyer’s practice, whatever size or specialty,â€? explains Marty, who plans on soliciting DGYLFH DQG IHHGEDFN IURP 6$%$¡V FXUrent membership. “It’s time to revamp RXU RÍżHULQJV DQG PDNH 6$%$ D UHOHYDQW source for legal information, CLE and FRPPXQLW\ QHWZRUNLQJ Âľ Marty explains SABA’s “Evolution for Allâ€? as the game plan for overhauling the association. SABA members should expect some positive improvements in the upcoming year. Change FDQ EH D GL΀FXOW WDVN EXW 0DUW\ GRHVQ¡W hesitate. He exudes enthusiasm, determination and sincerity in his words: “SABA is yours, and I am at your service.â€? By Erin Boren
Well done, Charlie!
([ 2΀FLR James M. “Marty� Truss
M ARTY T RUSS
The Publications Committee was saddened by the death, on July 23, 2015, of Charles D. “Charlieâ€? Butts. Not only was Charlie one of Texas’s very best lawyers for decades, but he was also one of the Committee’s longest tenured members and one of San Antonio Lawyer¡V PRVW SUROLĂ€F and beloved contributors. San Antonio Lawyer will be paying fuller tribute to Charlie in an upcoming issue, but the Committee would be remiss if we did not also mention his passing here. Our deepest sympathy goes out to Charlie’s family and especially to his widow, retired Fourth Court Justice Shirley Butts. Sara Murray Editor in Chief, San Antonio Lawyer Chair, Publications Committee
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two city buses to and from school every day. Although her early dream was to go to college in New York City (where did that come from?), she could not KDYH DÍżRUGHG WKDW VR VKH DWWHQGHG 87 in Austin, graduating in three years to save money. Her freshman year, Carolyn commuted back to San Antonio on By Farley P. Katz weekends to work at Answer Incorporated, a telephone answering service where she had worked in high school. t’s a long way from St. Lawrence Finally, she got her wish and was acand Providence High School to cepted at Columbia Law School in New the United States Supreme Court, but York City, with enough scholarships to Carolyn Fuentes has made that jourmake it possible. ney—twice! Carolyn thrived in New York, makHer journey began in San Antonio, ing lifelong friends and meeting her where Carolyn was born and raised. future husband (me). She attributed She grew up mostly on what was then KHU D΀QLW\ WR 1HZ <RUN WR WKH IDFW WKDW the far south side of San Antonio. In her maternal grandmother claimed high school, Carolyn joked that she that her grandmother in Mexico was lived in Pleasanton. After attending Jewish—“Her name was Meir,â€? Nanny St. Cecilia’s and St. Leo’s parochial said—which she claimed made Carolyn schools, she graduated from St. LawJewish. rence, where she was one of a class of Carolyn’s time at Columbia was twelve eighth grade students. She went one of her most fascinating experiencon to Providence High School, taking HV +HU ZRUN VWXG\ MRE GXULQJ WKH Ă€UVW year at the law school was as a research assistant for the Hamilton Legal Papers project, a job that required her to study records of Alexander Hamilton’s law practice—a unique opportunity she could not have imagined while growing up in San Antonio. Carolyn also had the privilege of studying under such legal luminaries as Ruth Bader Ginsburg, Harold Korn, and Herbert Wechsler. While at Columbia, Carolyn developed interest in the two areas of law that would dominate her practice: civil rights and criminal law. She became interested in civil rights law when she took Ruth Ginsburg’s class on gender discrimination. Carolyn and Farley outside Frida Kahlo’s house in Mexico City. Carolyn also partici-
The Supreme Carolyn Fuentes
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pated as a law student in the Employment Rights Project, a clinical course, where she worked on a sex discrimination lawsuit against The Reader’s Digest—a suit that later resulted in a $1.5 PLOOLRQ VHWWOHPHQW IRU WKH SODLQWLͿV Carolyn’s interest in criminal law began when she had a summer internship with the New York Legal Aid Society. Spending time in the Manhattan House RI 'HWHQWLRQ D N D WKH ´7RPEV¾ DQG the New York City criminal courts opened her eyes to criminal defense practice at its most basic level. After graduation, Carolyn went to work for the New York Legal Aid Society’s appellate section, where she OHDUQHG WKH ÀQH DUW RI ZULWLQJ DQG DUJXing—skills that would serve her well. After a few years at Legal Aid, she went WR ZRUN IRU WKH 2΀FH IRU &LYLO 5LJKWV in the Department of Health, Education DQG :HOIDUH 7KHUH DPRQJ RWKHU FDVHV Carolyn worked on an investigation of whether the all-male Princeton eating FOXEV YLRODWHG 7LWOH ,; RI WKH (GXFDWLRQ Amendments Act of 1972. Like many other great lawyers, Carolyn was drawn to Washington D.C. In 1980 she worked for the civil rights divisions of HEW and the Department of Education and later, in a brief excursion RQ WKH SURVHFXWRULDO VLGH WKH 2΀FH RI the Inspector General for the Department of Health and Human Services. In 1982 she married Farley Katz (me), DQG LQ KHU ÀUVW VRQ ZDV ERUQ )DUOH\ 7D\ORU 7KH OXUH RI 6DQ $QWRQLR DQG IDPLO\ GUHZ KHU EDFN WR 7H[DV LQ Her husband found work as a tax lawyer, and Carolyn obtained a position as an attorney with the Federal Public DeIHQGHU¡V 2΀FH ZKLFK WKHQ KDG D PHUH ÀYH DWWRUQH\V Carolyn loved working for Lucien Campbell, the Federal Public Defender )3' RQH RI WKH ÀQHVW ODZ\HUV VKH KDV ever known. In the early days, Carolyn handled both trials and appeals. A requirement of the job was that she speak Spanish. Although she knew some Spanish, she had never had to speak LW SURIHVVLRQDOO\ 6KH VSHQW WKH ÀUVW VL[ weeks on the job staying up late every
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night translating indictments so she could explain them to her clients. On rotation, Carolyn handled the Del Rio GRFNHW OHDYLQJ KRPH EHIRUH GDZQÂłWR drive to Del Rio, interview clients, and PDNH FRXUW DSSHDUDQFHVÂłDQG UHWXUQing home late at night. In 1987, Carolyn had her second child, Zander. The long hours and stress RI WULDO ZRUN NHSW KHU IURP KHU FKLOGUHQ DQG VKH OHIW WKH 3XEOLF 'HIHQGHU¡V R΀FH to teach in the Criminal Justice Program at UTSA. Although Carolyn enjoyed teaching at UTSA, the lure of real courtURRP ZRUN ZDV LUUHVLVWLEOH DQG VKH UHWXUQHG WR WKH )3'¡V R΀FH 7KH R΀FH had expanded and had recently set up an appellate section, which she joined. There, she spent the rest of her professional career, handling appeals to the Fifth Circuit and, eventually, two cases in the Supreme Court—cases among the most challenging of her career. 7KH Ă€UVW RI WKRVH WZR FDVHV ZDV Bond v. United States, 529 U.S. 334 (2000). Carolyn was assigned the appeal of Steven Dewayne Bond in 1998. Mr. Bond, then about nineteen years old, was traveling LQ D EXV IURP &DOLIRUQLD WR $UNDQVDV The bus was stopped at an interior imPLJUDWLRQ FKHFNSRLQW LQ ZHVW 7H[DV $Q immigration agent entered the bus and questioned the passengers. Having satLVĂ€HG KLPVHOI WKDW DOO SDVVHQJHUV ZHUH legally present in the United States, the agent exited the bus. On the way out, however, he felt and squeezed the bagJDJH DQG SDFNDJHV WKH SDVVHQJHUV KDG SODFHG LQ UDFNV DERYH WKHLU KHDGV DQG below their feet, to discover what might EH LQVLGH ,Q 0U %RQG¡V GXÍżHO EDJ WKH agent felt something that would turn RXW WR EH D EULFN RI PHWKDPSKHWDPLQH ZUDSSHG LQ GXFW WDSH DQG VWXÍżHG LQVLGH EOXH MHDQV :KDW NLQG RI H[SHUW feel did that agent have?!) Carolyn argued that this was a search and, since there admittedly was no probable cause, it violated the Fourth Amendment. The government contended that no “searchâ€? had been conducted, arguing that Bond had NQRZLQJO\ H[SRVHG WKH EDJ WR WKH SXElic and had no expectation that it would not be handled or manipulated by others. This convinced the Fifth Circuit. Government agents were squeezing and feeling baggage of travelers in bus and train stations around the country (this was pre-9/11), and the Seventh &LUFXLW OLNH WKH )LIWK VDLG WKDW UDLVHG
no Fourth Amendment problem. The Tenth Circuit, however, had disagreed with that analysis. Carolyn petitioned the United States Supreme Court. The Court grantHG WKH ZULW &DURO\Q KDG KHU Ă€UVW FDVH in the Supreme Court. There was a bit RI SUHVVXUH RQ KHU DV /XFLHQ¡V R΀FH had had two prior cases in the Court and was 2 and 0. Carolyn didn’t want WR EH WKH Ă€UVW LQ KHU R΀FH WR ORVH WKH ELJ FDVH 6KH ZRUNHG WLUHOHVVO\ ZULWLQJ DQG re-writing the briefs and conducting six moot courts in Texas and Washington to prepare. Her preparation was so extensive that not only was she ready for HYHU\ TXHVWLRQ WKH &RXUW ZRXOG DVN but she also had already heard the obviRXV MRNH 6FDOLD ZRXOG PDNH ´0U %RQG should have used hard luggage.â€? Bond was argued on February 29, 2000. Carolyn’s argument was described by the Washington Post as “one of the most forceful arguments by an advocate at the court in recent months.â€? Justice Ginsburg had little trouble distinguishing the government’s argument, stating that the federal agent’s action was “deliberate manipulation . . . not pushing and shoving.â€? In April, the opinion was released. Mr. Bond had won in a 7 to 2 decision. Surprisingly, the opinion was authored by Chief Justice Rehnquist, hardly the most pro-Fourth Amendment justice on the Court. Rehnquist wrote that Mr. Bond did have an expectation of privacy that was violated by the agent’s “physical manipulation of the bag.â€? Justice Scalia joined in Justice Breyer’s dissent, which repeated the “adviceâ€? that if Mr. Bond had expected privacy, he should have used “a suitcase with hard sides, irrespective of the Court’s decision today.â€? /LJKWQLQJ ZRXOG VWULNH DJDLQ ,Q 2008, Carolyn was assigned the case of Anthony Kebodeaux. Nearly ten years before, in 1999—when Kebodeaux was a twenty-one-year-old member of the United States Air Force—he was convicted, under the Uniform Code of Military Justice, of Carnal Knowledge with a Child for having sexual relations ZLWK KLV Ă€IWHHQ \HDU ROG JLUOIULHQG +H served his three-month sentence and received a bad conduct discharge. Years ODWHU &RQJUHVV SDVVHG WKH 6H[ 2ÍżHQGHU 5HJLVWUDWLRQ DQG 1RWLĂ€FDWLRQ $FW 625NA), which made it a federal crime for D FRQYLFWHG VH[ RÍżHQGHU WR FURVV VWDWH
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lines and fail to register under state law. SORNA also made it a federal crime for D SHUVRQ ZLWK D IHGHUDO VH[ RͿHQVH FRQviction to travel within a state and not register. As you might guess, Mr. Kebodeaux traveled within Texas and failed to renew his registration. Carolyn argued to the Fifth CirFXLW WKDW &RQJUHVV ODFNHG WKH SRZHU WR impose such obligations on Mr. Kebodeaux since, when the law was enacted, he had long severed all relations with the military. He was then simply a citizen residing in Texas, and there was no basis to impose such regulations on him. The Fifth Circuit rejected that argument. The three-member panel could not, however, agree on a legal basis for its ruling. See United States v. Kebodeaux, 634 F.3d 293 (5th Cir. 2011). Carolyn petitioned for rehearing en banc, which ZDV JUDQWHG )RU WKH ÀUVW WLPH LQ KHU FDreer, she argued before all sixteen judges and prevailed. Of course, the government could not abide losing, and it petitioned for Supreme Court review. The Court granted the writ, and Carolyn was again before the Supreme Court. She approached Kebodeaux the same way she had approached Bond, ZLWK H[WHQVLYH ZRUN DQG SUHSDUDWLRQ This time, she did moot courts in Texas, &DOLIRUQLD DQG :DVKLQJWRQ DQG DV before, she had dealt with every quesWLRQ WKDW ZRXOG EH DVNHG $UJXPHQW was held on April 17, 2013. Although she gave another forceful argument, Carolyn only convinced two of the nine justices. A few years ago, a lawyer in Washington, D.C. wrote an article about Latina lawyers who had argued before the United States Supreme Court. Her research showed that the number was about sixteen, a tiny group indeed. But it is believed that, as of today, Carolyn is the only Latina to have argued twice before the Supreme Court. She has briefed so many cases and argued so many times before the Fifth Circuit that it is not possible to begin to describe here the variety of such cases or her great successes. In all, she has over 600 opinions in her cases that are DYDLODEOH RQ /H[LV³VRPH VL[W\ ÀYH RI ZKLFK DUH R΀FLDOO\ ´SXEOLVKHG¾ DQother rare event in a criminal appeal). 2QH RI KHU PRVW GL΀FXOW FDVHV DQG one of her greatest victories, was the
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CHECKMATE:
EARLY MOVES DEFINE NEGOTIATION OUTCOMES %\ 'RQ 3KLOELQ
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ation of litigated cases is more nuanced rounds. Short circuiting the negotiation than these one-sized general rules. dance often leaves money on the table. With advancements in technology—in- Figure 1 and Figure 2 show actual necluding smart phones—and the appli- gotiations plotted with dollar moves cation of advanced analytics, computer coming together along the horizontal scientists, physicists, mathematicians, axis and time running from the start of sociologists, psychologists, economists, the mediation down the vertical axis to and lawyers have been a deal. FIGURE 1 AND FIGURE 2 able to draw meaningOpening: Whether ful insights about hub begun in a joint session man behavior using R RXW RI WKH EORFNV LQ RU learning algorithms and c caucus, parties tend to QHXUDO QHWZRUNV ,Q WKH sh share information early EHVW VHOOLQJ ERRN Burst, in the round in an atAlbert-Laszlo Barabasi te tempt to persuade their claims, “Their concluc counterparty, or at least VLRQV DUH EUHDWKWDNLQJ ju justify their tough pothey provide convincsition. s Informational ing evidence that most asymmetries a may be of our actions are drivwider w in early mediaen by laws, patterns, tions than those occurti and mechanisms that ring ri on the eve of trial in reproducibility and FROM ANECDOTAL MAXIMS TO BIG DATA after a discovery. Damage predictive power rival AND ADVANCED ANALYTICS calculations c are often offered to support early Historically, most negotiation re- those encountered in the fe search has been anecdotal because real natural sciences.â€? While human behav- GHPDQGV DQG RÍżHUV GXULQJ WKH RSHQLQJ participants do not want to have a so- ior varies—often irrationally—it is pre- phase of the mediation. cial scientist sitting in the corner coding dictable, even when irrational. Middle Muddle: The middle muddle variables for research. The result has usually coincides with lunch in a fullNEGOTIATIONS FOLLOW PREDICTABLE been anecdotal maxims drawn from exday mediation. There isn’t as much inperience: The settlement lies at the midSOCIAL CONVENTIONS formation left to share. One side probSRLQW EHWZHHQ WKH Ă€UVW WZR reasonable The negotiation of litigated cases DEO\ DOUHDG\ NQRZV DERXW WKH VPRNLQJ RÍżHUV )LUVW QXPEHUV DQFKRU QHJRWLD- usually involves a dance that divides gun that should have brought them WLRQV 7DNH D WRXJK SRVLWLRQ E\ DQFKRU- into roughly three phases. Some are around to the other side’s case evaluaing high or low, and even late conces- tangos while others are waltzes, but ef- WLRQ 7KH\ DOVR NQRZ KRZ WKH RWKHU VLGH VLRQV WDNH WZLFH DV ORQJ DQG FRQFHGH fective negotiators engage in a pattern LV FDOFXODWLQJ GDPDJHV RU WKH ODFN RI half as much. of reciprocating behavior that tests the them. Still, although the parties are still It turns out, though, that the negoti- VWULNH SULFH IRU D GHDO RYHU PXOWLSOH divided, the ball is still moving. Neihess grandmasters report that, while a match may last hours, WKH ERDUG LV VHW LQ WKH Ă€UVW IHZ PRYHV Players send strategic signals early and WKHQ ZRUN IRU KRXUV WR LPSOHPHQW WKHLU SODQ ZKLOH WDNLQJ DFFRXQW RI EXW QRW being controlled by, their opponent’s moves. They relentlessly run their plan. (ÍżHFWLYH QHJRWLDWRUV DOVR VHQG VWURQJ VWUDWHJLF VLJQDOV LQ WKHLU Ă€UVW few moves. Since litigators are used to weaving simple stories from complexity and constantly threading evidence through the ultimate questions for the IDFW Ă€QGHU WKH\ DUH DOUHDG\ H[SHUWV DW VWUDWHJLF SODQQLQJ 7KRVH VNLOOV DUH WKH grist of a successful negotiation. The question is whether, through research, we can draw insights about negotiation strategies that can help lawyers add value for their clients in real time.
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ther side wants to give up until they see how sweet the deal will get, but it’s not fun. To plumb the other side for their LAWYERS IN LEGAL NEGOTIATIONS ARE ALSO VERY EHVW QXPEHU WKH\ NHHS PRYLQJ WKH PREDICTABLE. NOT ONLY DO THEIR EARLY MOVES target closer to them without going to their demand. Colloquially, they hang TELEGRAPH WHERE THEY ARE HEADED WHEN MATCHED the meat low enough that the dog thinks TO HISTORICAL PATTERNS, BUT THEIR PACE OF PLAY she can get it. A pattern of reciprocating movement ensues, even if the parties IS ALSO PREDICTABLE. are not thrilled with it. Both sides move in rough proportion (not dollar equivalents) to the other, begrudgingly. Impatience Up, Blood Sugar Down: Later in the afternoon, impatience paroled. Your hopes rise—if he made it, GHDOÂłWKH FDNH LV EDNHG PXFK HDUOLHU LQ JURZV DV LI DQ DOFRKROLF QHHGV D GULQN you surely will, too. But the morning the round. No amount of frosting will As blood sugar drops, non-inert or drags on as the judge listens to similar KHOS D FDNH WKDW GLGQ¡W SURSHUO\ EDNH status quo decisions become more dif- facts in dozens of cases. The judge ap- earlier in the day. And the best closing Ă€FXOW :KDW WULDO ODZ\HUV NQRZ DV WKH pears to be getting weary of the same WHFKQLTXH LV XQOLNHO\ WR VHWWOH D FDVH WKDW EUHDNIDVW WKHRU\ÂłZKDW WKH MXGJH KDG story, as her attention wanders. You no- didn’t start on the road to success—or IRU EUHDNIDVW PD\ DÍżHFW GHFLVLRQVÂłKDV tice she seems to be granting fewer pa- get there in a couple of rounds. Anchoring is Important: You’ve been proven by empirical researchers. UROHV DV ZH JHW FORVHU WR WKH OXQFK EUHDN As much as you want her to get to your heard the research on anchors. Open$IWHU ORRNLQJ IRU VLPSOH ELQDU\ FKRLFes to quantify decisions, researchers FDVH \RX¡G UDWKHU VKH HDW D VQDFN RU DW ing numbers are important. Studies settled on criminal parole outcomes OHDVW GULQN VRPH FRÍżHH EHIRUH VKH GRHV show amateurs and experts being mabecause of their up or down nature. $ODV LW¡V DQG WKH EDLOLÍż FDOOV \RXU nipulated by changes in listing prices The prisoner’s sentence could not be case. The state doesn’t contest your RQ UHDO HVWDWH $QFKRUV ZRUN EHVW ZKHQ good behavior much, there are informational disparities. Afaltered. The judge had FIGURE 3 y the judge seems to ter discovery and expert reports, they yet two choices—parole or be b fading. She is clearly hold less sway. Since anchoring is part not. Figure 3 depicts UHDG\ IRU D EUHDN 7KHQ of the social convention of negotiation, UH the parole grant rate by it comes—denied! Oh it varies by venue. We’re expected to Israeli judges studied no. n Why couldn’t your put more spin on the numbers in certhroughout a single day. case have come up af- tain venues, and even within a particuc All prisoners were eliter te lunch, when grant lar geographic bar there are substantial gible for parole, but the rates return to morning variations by case type. The questions r court had wide discrelevels? Could it be that that weigh on everyone’s mind are le tion in granting it. random? In fact, it’s predictable—not “Will this thing settle? How much will Researchers studied the outcome random at all. they pay (or how little with they acof hundreds of cases. They found little 1HJRWLDWRUV DUHQ¡W PXFK GLÍżHUHQW cept)?â€? correlation among behavioral factors, Patterns Emerge From Large Data EXW WKH\ GLG Ă€QG D VWDUWOLQJ FRUUHODWLRQ $V WKH KRXUV WLFN DZD\ WKH QHJRWLDbetween parole grants and the time of tor often expresses frustration that the Sets: It turns out that humans are preday a case came on for consideration. It RWKHU VLGH KDV WDNHQ WRR ORQJ WR FRQFHGH dictable, really predictable. The Naturns out that the judge’s eating habits too little, but we still want to get this tional Security Agency wants our cell and metabolism apparently had more over with today (tonight). But we’ve phone data because the phone compato do with parole outcomes than pris- been reasonable. They need to move. nies can predict where we’ll be tomorBuyer’s remorse has set in—both sides URZ ZLWK DFFXUDF\ 0DNH D FUHGLW oner performance. 6R LPDJLQH \RX DUH KDQGFXÍżHG LQ have moved more than they wanted to card charge outside of your established WKH GRFNV ZLWK GR]HQV RI RWKHU SULV- already. Since everyone can see a deal pattern, and you’ll get a text or call oners awaiting the call of your case. by now, no one wants to pull the plug— IURP WKH EDQN ZLWKLQ VHFRQGV Lawyers in legal negotiations are You’ve really shown reform and have \HW %XW ERWK VLGHV PDNH VPDOOHU FRQbeen the model prisoner. The prisoner FHVVLRQV LQ TXLFNHU VXFFHVVLRQ WR WHOH- also very predictable. Not only do their to your right has not been bad, but he graph to each other, “You must come early moves telegraph where they are has not gone out of his way to comply WR XV Âľ &ORVLQJ LV KDUG ZRUN WKDW RIWHQ headed when matched to historical with the in-house rules. You anticipate requires a variety of mediator tools. But patterns, but their pace of play is also predictable. PictureItSettled.com has that your case should be more favor- the board is set much earlier. spent years building a system of neural ably reviewed than your neighbor’s— VXFK RYHUFRQĂ€GHQFH LPEXHV WKH GHFL- THE FIRST FEW MOVES SET THE BOARD— QHWZRUNV DQG OHDUQLQJ DOJRULWKPV WKDW LIKE CHESS compare each move in a legal negosions of the most highly trained people, While much emphasis is placed on tiation to more than 15,000 other cases including lawyers. Your neighbor’s case is called early closing techniques—especially for me- (a much larger data set than a clinical LQ WKH PRUQLQJ ,W ORRNV FORVH EXW KH LV diators since our grades depend on a trial).
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After a few moves, the system can predict your opponent’s next move within minutes and dollars. Armed ZLWK WKDW LQIRUPDWLRQ \RX ZLOO NQRZ with high certainty where the other side is headed before they get there. Much OHVV JXHVV ZRUN <RX FDQ ÀQH WXQH \RXU VWUDWHJ\ WR VXEWO\ DͿHFW WKH SDFH RI FRQcessions and the eventual outcome. 2I FRXUVH WKHUH LV QR FRRNLH FXWWHU way to negotiate a case, but the larger the data set, the smaller the chances become that someone has an untried patWHUQ WKDW ZRUNV 3LFWXUH,W6HWWOHG FRP has studied lawyer negotiating behavior and has drawn some critical, and often counter-intuitive, insights. ([WUHPH 3RVLWLRQV 6RPHWLPHV 3D\ 2Ϳ But Don’t Work Most of the Time: The GDWD LQGLFDWH WKDW WDNLQJ DQ H[WUHPH SRsition early in a negotiation sometimes SD\V RͿ EXW PXFK PRUH RIWHQ LW UHVXOWV in impasse or sudden drops to avoid impasse that end up conceding more than a strategic concession plan would have produced. Holding an extreme position too long and then conceding at the last minute can leave 15% or more on the table. That’s $150,000 in a $1-milOLRQ FODLP 7KLV LQVLJKW à LHV LQ WKH IDFH of the conventional wisdom and mythology of legal negotiation. 7KH GHÀQLWLRQ RI DQ H[WUHPH QHgotiating position, however, varies by venue, claim type, and other variables. In the movie A Civil Action, for example, John Travolta played a lawyer whose RSHQLQJ RͿHU ZDV VR RXWVLGH RI WKH VRcial convention for such negotiations in Boston in the early 1980s (over thirtyÀYH WLPHV WKH HYHQWXDO VHWWOHPHQW WKDW it failed to even draw a response. The SODLQWLͿV¡ ODZ\HUV DQG WKHLU ÀQDQFLHU had valued the case at $25 million. Had 7UDYROWD¡V FKDUDFWHU KDG WKH EHQHÀW of modern analytics combing data in similar cases from the Boston area, he ZRXOG KDYH NQRZQ WKDW D PXOWLSOH was more in line with convention for the venue and case type. Had he started around $62 million, there was a much better chance he could have landed a settlement in the $25 million range. Instead, his 35 multiple failed to draw a response, and he and his partners lost WKHLU KRPHV DQG ZHQW EDQNUXSW SXUVXing the case for years to an $8-million settlement. Mediators Reduce Cognitive Dissonance: Experimental psychology and more recent neural mapping with fMRI
machines has shown why mediation LV VR HͿHFWLYH LQ QHXWUDOL]LQJ SUHGLFWable cognitive biases that often impede direct negotiations. At a macro level, countries rarely have the generals who are conducting the war also ZRUN RQ SHDFH QHJRWLDWLRQV ,W¡V KDUG to lay down weapons without heavily discounting the other side’s intentions. 5HVHDUFKHUV TXDQWLÀHG WKH HͿHFW RI UHactively devaluing an enemy’s proposals—a statement FIGURE 4 attributed to a foe is half as credible (44%) as the same statement attributed to the home team (90%). Interestingly, though, neutral third-parties enjoy credibility much closer to that of the home team (80%). The real lawyers in A Civil Action have told me that, had a mediator been present at the settlement conference, the outcome would KDYH EHHQ GLͿHUHQW , XVH WKH ERRN RQ which the movie is based for a law school decision analysis class and have interviewed the real lawyers in that case in putting together the materials. Extreme anchors rarely blow a round LQ RQH PRYH EXW WKH SDUW\ PDNLQJ WKH H[WUHPH RͿHU WHQGV WR PDNH ODUJHU FRQcessions afterward to avert an early impasse. So it is usually more prudent to VWDUW ZLWK DQ RͿHU WKDW LV KLJK RU ORZ but perceived as reasonable locally and concede less in subsequent rounds. Variations by Venue and Case Type: What’s acceptable negotiating behavior varies. The FIGURE 5 employment bar might tolerate more extreme anchors than the construction bar in the same venue. Noneconomic damages may move the line of scrimmage out across demoJUDSKLF PDUNHUV Venue matters. Our database has the tough negotiator and other seasoned SURIHVVLRQDOV EDUJDLQLQJ LQ GLͿHUHQW MXrisdictions and venues. We learned that
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YHQXH KDV D ODUJH LQà XHQFH RQ QHJRWLDtion strategy and behavior (as it does RQ YHUGLFWV 6LQFH LW WDNHV WZR WR WDQJR in negotiation, errant behavior often results in collapse of the round. What ZRUNV LQ 1HZ -HUVH\ PD\ QRW SOD\ DW DOO LQ 3HRULD ,I DJJUHVVLYH ÀUVW RͿHUV DUH WKH ORFDO FXVWRP DQG \RX GRQ¡W PDNH one, you may frustrate progress by tryLQJ WR PDNH XS ORVW JURXQG WKH UHVW RI WKH GD\ &RQYHUVHO\ H[WUHPH RͿHUV WKDW aren’t customary can have WKH FKLOOLQJ HͿHFW RI VKXWWK ting down negotiations beti fore you get a feel for how fo high or low the other side h will move. w See Figure 4: When ZH SORW ÀQDO VHWWOHPHQW Z ÀJXUHV GDUN FHQWHU OLQH À against opening demands a DQG RͿHUV KLJK DQG ORZ D KDVK PDUNV LQWHUHVWLQJ K patterns emerge. There p are venues where the mida point rule of thumb is closer to the PDUN 7KHUH DUH DOVR SODFHV ZKHUH SDUties might compromise their position— and leave money on the table—by not dancing the local dance with more extreme anchors. If the expectation is that negotiators demand several times what they are actually willing to settle for—and you don’t—it may be hard to PDNH XS WKDW GLͿHUHQFH LQ VXEVHTXHQW URXQGV &RQYHUVHO\ LI \RX PDNH DQ over-the-top demand in a jurisdiction that doesn’t dance that way, you may ÀQG \RXUVHOI ORRNLQJ DW DQ HPSW\ URRP OLNH 7UDYROWD¡V FKDUDFWHU 2SHQ WRR ORZ DQG \RX¡OO KDYH D KDUG WLPH PDNLQJ LW up, but open too high and you’ll poison WKH ZHOO DQG ULVN DQ HDUO\ LPSDVVH /Rcal mediators often moderate expectations to local ccustom. Claim type matters, too, and negotiating conto ventions vary by claim v type (Figure 5). Within the ty shaded boxes lie the mash MRULW\ RI WKH RͿHUV DQG GHMR mands, but notice there are m ssome fairly extreme moves across claim types. Gena HHUDO UXOHV EUHDN GRZQ LQ VVSHFLÀF FDVHV VR ZH PDWFK behavioral patterns rather b than imposing categorical th UXOHV :H ORRN IRU DQ LQVWDQFH ZKHUH D QHJRWLDWRU KDV DFWHG OLNH \RXU FRXQWHU-
9 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
party, rather than misapplying general UXOHV WR VSHFLÀF IDFWV PREDICTIVE ANALYTICS OFFER INSIGHT Because software can model negoWLDWLRQV ÀIW\ URXQGV LQWR WKH IXWXUH \RX rarely need them all), you can forecast LQ UHDO WLPH ZKDW WKH HͿHFW RI D SODQQHG move will be on the round. Not only will the system model your adjusted course, but it will also anticipate the other side’s reaction to it. Overdo it, and the odds of impasse increase. Finetune it, and you’ll improve your position without unnecessarily increasing WKH ULVN RI LPSDVVH 7KDW PHDQV PRUH deals on better terms. Probabilistic Projections of the Negotiation Path: Hurricane forecasters combine historical data with current weather readings to forecast storm PRYHPHQWV 7KH\ DUH UHDOO\ PDNLQJ D series of individual projections that are DJJUHJDWHG LQWR FRQH ORRNLQJ JUDSKV The forecasts get better with additional data and the cone narrows. A hurricane that once FIGURE 6 AND FIGURE 7 might have m been prob jected je to come c in somewhere s between F Florida and T Texas (Figu 6) later ure a appears to b be headed fo western for Louisiana (F (Figure 7). That’s news T we w can use. F Forecasters predicted la landfall for Hurricane Katrina ZLWKLQ ÀIWHHQ PLOHV WZR GD\V DKHDG RI time. Similarly, PictureItSettled.com uses probabilistic projections to project negotiation behavior. The system modHOV ZKHUH D URXQG LV OLNHO\ WR HQG XS by combining historical data with the GHPDQGV DQG RͿHUV IURP WKH FXUUHQW FDVH 7KHVH PRGHOV OLNH )LJXUH DUH graphed with probabilistic cones, too. 7KH GDUNHU FRORUV UHSUHVHQW WKH PRVW OLNHO\ VHWWOHPHQW RXWFRPHV /LNH KXUricane projections, more information
rapidly extend LQFUHDVHV FRQÀGHQFH FIGURE 8 w what experimenin the projections ta psychologists, tal and the cones narbehavioral b econorow. What might mists, m and other start as a fairly wide disciplines d have VSUHDG OLNH WKH )ORUle learned about preida to Texas hurrid dictable if seemcane cones in Figure in ingly irrational 6 and 7, narrows as h human behavior. additional bid data C Current technolfrom the round are o ogy allows us to entered. p play Battleship The intersection w with sonar in nepoint of the two prog gotiations. Knowjections—plaintiffs in with some cering coming from higher GROODU ÀJXUHV DW WKH ULJKW DQG GHIHQ- tainty where the other side is headed in GDQWV PRYLQJ WRZDUG WKH SODLQWLͿ IURP time to improve your position through the left—projects the zone of possible D UHVHDUFK EDVHG ÀQH WXQHG FRQFHVVLRQ plan will improve your results. It’s not agreement in both money and time. Highly Accurate Projections: Picture- a substitute for well-honed intuition ItSettled.com has published case stud- developed through experience. It’s ies on the accuracy of its projections an aid to test and calculate optimum LQ VSHFLÀF QHJRWLDWLRQV %\ WKH VHFRQG positons. It’s really nothing more than of seventeen rounds in an intellectual adding a scope to a gun so the human property case, our system projected the WDNHV D EHWWHU VKRW $ LPSURYHPHQW ÀQDO VHWWOHPHQW ZLWKLQ RI WKH WKHQ to a $10 million case is worth $500,000. $28.55 million spread. In another tech- That’s worth some planning. nology case, the projection was within Don Philbin is an AV3% after round three. Those initial prorated attorney-mediajections improved with additional intor, adjunct professor formation. of law, curator of Insight Becomes Actionable: Accuwww.ADRtoolbox.com rate forecasts are insightful, but only and president of Pichelpful if you act on the information. ture It SettledŽ. A pri2QFH \RX NQRZ ZKHUH WKH RWKHU VLGH LV or version of &KHFNheaded, you can adjust the target settlement (dot at the bottom) to improve the PDWH (DUO\ 0RYHV 'HÀQH 1HJRWLDWLRQ URXQG ZLWKRXW LQFUHDVLQJ WKH ULVN RI Outcomes was published in NEWS FOR impasse. The system recalculates sug- THE BAR (Texas Bar Litigation Section) JHVWHG RͿHUV WKDW ZLOO JHW \RX WR WKH DG- in Spring 2015. justed target settlement incrementally, rather than with sudden moves. Since these moves are based on successful rounds, your odds improve. If you get too aggressive, the model ZLOO VKRZ DQ LQFUHDVHG ULVN RI LPSDVVH By continually adjusting expectations and strategy to the current forecast, you can test whether your trial alternatives are better than the projected deal. Even small percentage improvements usually yield much better settlements. Since the strategy is informed by successful and unsuccessful historical rounds, the improvement comes without out unQHFHVVDULO\ LQFUHDVLQJ WKH ULVN RI LPpasse. CONCLUSION Big data and smart analytics will
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7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
Social Media at Work: An Update on Evolving Law
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he relationship between the ZRUNSODFH DQG HPSOR\HH XVH of social media continues to be a topic of great interest and concern. The pervasiveness of social media in our society now raises new legal issues, LQFOXGLQJ LWV HÍżHFW RQ IUHHGRP RI VSHHFK for public employees/employers and issues of “concerted activityâ€? for all employees and employers. Both the First Amendment and the National Labor Relations Board’s (“NLRBâ€? or the “Boardâ€?) concerted activity concepts are now front and center in the new ODQJXDJH RI HPSOR\HH ZRUNSODFH ULJKWV Our daily news commonly contains stories where social media is at the forefront of employment issues. In June of this year, a video of a Texas police R΀FHU IRUFLQJ DQ $IULFDQ $PHULFDQ teenage girl to the ground at a McKinney, Texas, swimming pool went “viralâ€? RYHU VRFLDO PHGLD XOWLPDWHO\ DÍżHFWLQJ the employment status of three people: WKH R΀FHU WKH LQFLWHU RI WKH GLVWXUEDQFH and an unrelated school teacher. The swift resignation of the police R΀FHU ZKR FRPPLWWHG WKH YLROHQFH FDQ be attributed to the powerful video of the incident that spread over social media. But, in addition, the woman who allegedly initially incited the SRRO JRHUV E\ PDNLQJ UDFLVW FRPPHQWV ZDV LGHQWLĂ€HG E\ VRFLDO PHGLD XVHUV using Twitter, and she was placed on administrative leave by her employer.1 Without the presence of social media, her employment certainly would have UHPDLQHG XQDÍżHFWHG 6XEVHTXHQWO\ a public school teacher from a school GLVWULFW PRUH WKDQ Ă€YH KRXUV¡ GULYH
IURP 0F.LQQH\ 7H[DV ZDV Ă€UHG DIWHU PDNLQJ EODWDQWO\ UDFLVW FRPPHQWV RQ )DFHERRN LQ GHIHQVH RI WKH R΀FHU $IWHU the termination, the school district issued a statement, admonishing, “Employees are held to the same professional standards in their public use of electronic media as they are for any other public conduct. This recent conduct was unacceptable.â€?2 The McKinney, Texas, swimming pool incident serves as a reminder that the presence of social media in employment-related contexts raises an abundance of issues, from freedom of speech in the context of public employment to concerted activity to use of social media as evidence in litigation. The National Labor Relations Act: Addressing Social Media Use as “Concerted Activityâ€? The interface between social media policies and the National Labor Relations Act (“NLRAâ€? or the “Actâ€?) is a hot topic because the NLRA extends to all employers, not only those engaged ZLWK XQLRQ ZRUNHUV DQG SURYLGHV protection for all employees engaging in concerted activity.3 Section 7 of the Act provides protections to employees in their right to come together and possibly unionize. Employees also have the right WR GLVFXVV WKHLU ZRUNLQJ FRQGLWLRQV under what is termed “concerted activity.â€? Concerted activity is when WZR RU PRUH HPSOR\HHV WDNH DFWLRQ IRU their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or
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she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or VHHNLQJ WR SUHSDUH IRU JURXS action.4 Social media practices, DV WKH\ UHODWH WR WKH ZRUNSODFH are now frequently triggering Section 7 protections for concerted activity. Non-union Texas employers are increasingly being called before the NLRB to respond to Section 8 claims of interference with non-union Section 7 protected concerted activity, and cannot dismiss the possibility of this type of OLWLJDWLRQ DV XQOLNHO\ 1RQ union Texas employers have indeed been cited by the Board for Section 8 violations, and have paid substantial penalties for Section 7 transgressions. In a recent case, eleven employees of the Texas Dental Association were awarded $900,000 in a case where they had complained, using aliases in a petition, about unfair treatment from management. A forensic investigation by the executive director ensued DQG OHG WR WKH ÀULQJ RI VHYHUDO employees. The NLRB ruled that the terminations were illegal and the case was appealed up through the Fifth Circuit, but reached settlement while the appeal was pending.5 In a February 2015 settlement with the NLRB, the Baylor Health Care System, Scott & White Healthcare in Fort Worth resolved a dispute with employees by agreeing to rescind a number of hospital employment policies, including its social media policy that was deemed to be overbroad.6 In March 2015, the General Counsel of the NLRB issued a report discussing its positions on lawful and unlawful HPSOR\HH KDQGERRN SROLFLHV and social media policies ÀJXUHG ODUJHO\ LQ WKH UHSRUW The entire second half of the report focuses on a settlement
with Wendy’s International, LLC (parent company of the Wendy’s hamburger chain restaurants), which covers, among other things, remedying extensive problematic aspects of Wendy’s HPSOR\HH KDQGERRNÂłFHQWUDOO\ LWV social media policy—and also provides revised policies implemented pursuant to their settlement agreement.7 Because WKH :HQG\¡V HPSOR\HH KDQGERRN contained many common policies, Texas employers would be wise to fully understand the General Counsel’s positions with regard to concerted activity and social media. This most recent memo comes on the tail of previous NLRB General Counsel “Guidanceâ€? in the form of three memoranda addressing employer social media policies, issued in 2011 and 2012. Under the previous guidance, both union and non-union employers’ media policies were scrutinized, focusing on policies limiting employee use of company logos, restricting HPSOR\HHV IURP GLVFORVLQJ FRQĂ€GHQWLDO LQIRUPDWLRQ DQG UHVWULFWLQJ FR ZRUNHU communications.8 The 2015 memo further explores many employee KDQGERRN SURYLVLRQV WKDW PD\ LPSLQJH on Section 7 rights, including policies LQYROYLQJ FRQĂ€GHQWLDOLW\ HPSOR\HH conduct toward the employer, IHOORZ HPSOR\HHV DQG WKLUG SDUWLHV use of company logos, copyrights DQG WUDGHPDUNV SKRWRJUDSK\ DQG UHFRUGLQJV GHSDUWXUH IURP ZRUN DQG FRQĂ LFW RI LQWHUHVW In the section on employee conduct toward the employer, the UHSRUW VSHFLĂ€FDOO\ VWDWHV WKDW D SROLF\ cautioning that “[i]t is important that employees practice caution and discretion when posting content on VRFLDO PHGLD WKDW FRXOG DÍżHFW WKH Employer’s business operation or reputationâ€? is unlawfully overbroad because it limits the “employees’ right to criticize an employer’s labor policies and treatment of employees,â€? which “includes the right to do so in a public forum.â€? Although the section related to company logos, copyrights, and WUDGHPDUNV GRHV QRW VSHFLĂ€FDOO\ mention social media, this is an area which typically overlaps with social media usage. Accordingly the NLRB recognizes an employee’s “right to use WKH QDPH DQG ORJR RQ SLFNHW VLJQV OHDĂ HWV DQG RWKHU SURWHVW PDWHULDO Âľ
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including social media. The second half of the thirty-page report addresses “The Settlement with Wendy’s International LLC,â€? using as DQ H[DPSOH WKH ´8QODZIXO +DQGERRN Rulesâ€? of this employer and providing ´/DZIXO +DQGERRN 5XOHV 3XUVXDQW WR Settlement Agreement.â€? This part of the report focuses extensively on the FRPSDQ\¡V VRFLDO PHGLD SROLF\ Ă€QGLQJ a number of areas to be problematic. Considered overbroad are policies that: ‡ Generally restrict employees from “commenting about the company’s business, policies or employees ZLWKRXW DXWKRUL]DWLRQÂľ ‡ Broadly prohibit “any employee use of copyrighted or ‘otherwise SURWHFWHG¡ LQIRUPDWLRQÂľ ‡ Prohibit the posting of ´SKRWRJUDSKV WDNHQ DW &RPSDQ\ events or on Company premisesâ€? ZLWKRXW DXWKRUL]DWLRQ ‡ Prohibit “the use of its logo or WUDGHPDUNVÂľ ZLWKRXW DXWKRUL]DWLRQ from the company’s legal GHSDUWPHQW ‡ 3URKLELW ´DQRQ\PRXV FRPPHQWVÂľ ‡ Prohibit “false or misleading UHSUHVHQWDWLRQV DERXW ZRUNÂľ ‡ Prohibit blogging or forming an RQOLQH JURXS ZLWKRXW DSSURYDO ‡ Prohibit “maligning, defaming, or GLVSDUDJLQJÂľ RWKHUV DQG ‡ 5HTXLUH HPSOR\HHV WR VHHN KHOS before responding to “negative statementsâ€? about the company. According to the Board’s General Counsel, all of these areas of the employer’s social media policy are overbroad because they could be construed as limiting Section 7 employee rights. In settlement of the issue, the General Counsel concluded the memo with a list of acceptable policies to be substituted for the allegedly problematic Wendy’s policies. Other recent decisions demonstrating how employment policies restricting employees’ social media use may run afoul of the NLRA include the following: 7KH .URJHU &R RI 0LFKLJDQ DQG $QLWD *UDQJHU, NLRB No. 07-CA-098566 $SULO .URJHU¡V KDQGERRN policy contained a commonly used provision that prohibited its employees from discussing the company on VRFLDO PHGLD ZLWKRXW Ă€UVW LGHQWLI\LQJ themselves as employees and requiring them to include a disclaimer establishing
13 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
their views as personal and not as representing the employer’s views. 6SHFLĂ€FDOO\ .URJHU UHTXLUHG HPSOR\HHV to use this disclaimer: “Postings on this site are my own and do not necessarily represent the positions, strategies or opinions of the Kroger Co. family of VWRUHV Âľ 7KH 1/5% $GPLQLVWUDWLYH Law Judge (ALJ) held, “Given the breadth of online communications to which the rule applies, it would be extremely burdensome to have to post the disclaimer in each instance, or on each new page, and this would have a reasonable tendency to chill Section 7 activity in this regard.â€? Exceptions to WKH $/- GHFLVLRQ KDYH EHHQ Ă€OHG DQG 1/5% *HQHUDO &RXQVHO KDV Ă€OHG DQ answering brief urging the Board to deny Kroger’s exceptions. Purple Communications, Inc. and Communications Workers of America, AFL-CIO, 361 NLRB No. 126 (December 2QH RI WKH PRVW VLJQLĂ€FDQW NLRB cases does not involve social media facts but is related to social PHGLD FRQFHSWV 7KH GHFLVLRQ FHQWHUV on whether an employee can use the employer’s email system to engage in concerted activity under Section 7 of WKH 1/5$ 6HFWLRQ RI WKH $FW GHĂ€QHV a number of unfair labor practices, including practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.â€?10 In a reversal of a previous case, the NLRB in Purple found that an employer violated Section 8 of the Act and ruled that the employer could not prohibit the use of its email by a nonsupervisory employee for purposes involving Section 7 rights. “[E]mployee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.â€? Purple overrules a prior decision (Register Guard, 351 NLRB 1110 (2007)), which held that an employer’s email system would essentially be treated like other employer property and equipment such as bulletin boards, copy machines, intercoms, and telephones, all of which use could be restricted by the employer. Finding that the prior Register decision was clearly erroneous and was focused “too much on employers’ property rights and too little on the importance of email as a
means of workplace communication,â€? the Board took the dramatic step of opening employer email to employees for their use in protected concerted DFWLYLW\ 7KLV GHFLVLRQ FORVHO\ UHODWHV WR social media issues, not only because social media accounts generally include an email communication aspect, but also because it opens employer-owned social media accounts to similar treatment. Richmond District Neighborhood Center and Ian Callaghan, 361 NLRB No. 74 (October 28, 2014). In a Facebook conversation, two employees of an after-school teen activity center made D QXPEHU RI LQĂ DPPDWRU\ VWDWHPHQWV advocating insubordination, including “refusing to obtain permission . . . before organizing youth activities . . ., neglecting their duties . . ., jeopardizing the futureâ€? of the center,â€? and advocacy RI LQVXERUGLQDWLRQ Âľ 7KH FRQYHUVDWLRQV involved a “lengthy exchange [and] repeatedly described a wide variety RI SODQQHG LQVXERUGLQDWLRQ LQ VSHFLĂ€F GHWDLO Âľ 7KH PDJQLWXGH DQG GHWDLOHG nature of their plan caused them to lose the protection of the NLRA, and the employer’s decision to rescind their FRQWUDFW RÍżHUV IRU WKH IROORZLQJ VFKRRO year was deemed reasonable, and not a violation of Section 8 of the Act. Three D LLC d/b/a/ Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014). At issue in this case is whether the employer violated Section 8 of the Act by terminating employees for their forceful Facebook discussion regarding their employer’s mistakes on their paycheck withholding amounts, causing them to owe money to the ,56 7KH PDWWHU LQFOXGHV DQ LQWHUHVWLQJ aspect in that an employee’s use of the “likeâ€? button in Facebook constituted “support for the others who were sharing their concerns and constituted participation in the discussion that ZDV VX΀FLHQWO\ PHDQLQJIXO DV WR ULVH to the level of protected, concerted DFWLYLW\ Âľ ,Q DGGLWLRQ WR Ă€QGLQJ WKDW the terminations were unlawful, the employer erred by interrogating employees and threatening defamation charges regarding employees’ Facebook DFWLYLW\ 7KH HPSOR\HU¡V ,QWHUQHW Blogging policy was also found to be overbroad in that it prohibited “inappropriate discussionsâ€? rising to the level of chilling Section 7 activities. 7KLV PDWWHU LV FXUUHQWO\ RQ DSSHDO WR WKH
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Second Circuit Court of Appeals.9 Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez. 362 NLRB No.59 (March 31, 2015). An employee of a New York City catering company was discharged due to clearly vulgar comments (too distasteful to be reprinted here) about his supervisor made on the employee’s personal Facebook page. However, citing Richmond (see above) and in contrast to its outcome, under a standard of examining the conduct in the context of all the circumstances, the employee’s comments were not found to exceed the everyday atmosphere of this employer’s employment environment, in which the use of foul language was pervasive. In addition, the employee’s profane language—which was even directed toward the supervisor’s family—was paired with encouragement to vote for unionization in an upcoming company election and occurred during non-work WLPH LQ D QRQ ZRUN ORFDWLRQ 7KH VRFLDO media posting was, therefore, deemed to be protected under Section 7 of the Act, and the employer was found to be in violation of Section 8 of the Act for terminating the employee. Professional Electrical Contractors of Connecticut, Inc. NLRB No. 34CA-071532 (June 4, 2014). In this case, employees were found to be unlawfully chilled from participating in protected activity by a number of the employer’s policies, including a policy prohibiting “taking photographs or making recordings at the workplace without prior authorization by management.â€? 7KH 1/5% $/- DOWKRXJK LQ V\PSDWK\ with the employer’s arguments UHJDUGLQJ LVVXHV RI FRQĂ€GHQWLDOLW\ DQG professionalism in dealing with its clients, found the rule to be overbroad DQG VSHFLĂ€FDOO\ PHQWLRQHG WKDW VXFK a rule could prohibit use of such photographs or recordings for the purposes of picketing and employmentrelated civil action, as well as “employee communications in social media.â€? ([FHSWLRQV KDYH EHHQ Ă€OHG DQG WKLV matter is currently set for further review at the Board level. Recent Developments Involving Social Media in Litigation In addition to the recent developments in the area of the NLRA’s protection of employee concerted activity, social media is attracting legal
14 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
attention as a source of discovery in civil litigation. Further, concepts of ownership of social media accounts continue to be developed, as illustrated by the following recent decisions: Caputi v. Topper Realty Corp., 8 6 'LVW /(;,6 ( ' 1 < )HE 7KH &RXUWV FRQWLQXH WR be cautious about overbroad requests for production of social media in litigation discovery. In this case, the HPSOR\HU GHIHQGDQW Ă€OHG D PRWLRQ WR compel employee discovery consisting of documents, cell phone records, and the “complete history . . ., all wall posts, status updates, pictures, messages, [and] communications to or fromâ€? an employee’s Facebook account for a Ă€YH \HDU WLPH IUDPH 7KH HPSOR\HH¡V SURĂ€OH ZDV SXEOLF EXW WKH DFWLYLW\ IRU some of the relevant period had been deleted. Even so, although social media content is generally not privileged, the court deemed the information sought to be overbroad and not reasonably calculated to be relevant to the matter. As in previous cases, a mere “hope that there might be something of UHOHYDQFHÂľ ZDV QRW VX΀FLHQW WR MXVWLI\ the production. However, with regard to the employer’s reasoning that the account information could be relevant to HVWDEOLVK RU GLVSXWH SODLQWLͿ¡V FODLP of emotional distress, the court was more sympathetic and recognized that other courts have also permitted limited discovery for this purpose. Still, the courts generally have declined to award complete access and have required such requests to be carefully tailored and limited to “social media communications and photographs that reveal, refer, or relate to any emotion, feeling, or mental stateâ€? relevant to the claims. In this case, the court ordered WKH SODLQWLÍż WR SURGXFH D VDPSOLQJ RI DFWLYLW\ IRU D VSHFLĂ€F WLPH SHULRG ´OLPLWHG WR DQ\ VSHFLĂ€F UHIHUHQFHV WR WKH HPRWLRQDO GLVWUHVV FODLPV VKH VXÍżHUHG . . . treatment she received,â€? or references to any “alternative source or FDXVH RI 3ODLQWLͿ¡V DOOHJHG GLVWUHVV Âľ 7KH SODLQWLÍż ZDV DOVR GLUHFWHG WR SUHVHUYH DOO of her account activity going forward. Danforth v. Apple, 757 S.E.2d 96 (Ga. 2014). In this case brought before the Georgia Supreme Court, the court held that the trial court exceeded its authority by issuing an injunction which included, among other restrictions,
an overbroad prohibition disallowing WKH SODLQWLÍż IURP FRQWDFWLQJ ´DQ\ Apple employee, directly or indirectly, by any means of communication including social media.â€? Highlighting the challenge of placing limits on social media’s far reaching pervasiveness, this restriction lacked proper limitation, EHFDXVH DV WKH FRXUW QRWHG WKH SODLQWLÍż “could violate the injunction merely by communicating through social media with a person anywhere in the world who happens to be an Apple employee,â€? even if the employee had no awareness of any connection to Apple. Conclusion 7KH ODZ KDV ODJJHG EHKLQG WKH rapid developments relating to the Internet and social media in the past few decades. In the employment context, balancing the employer’s needs for control of the workforce atmosphere, FRQĂ€GHQWLDOLW\ DQG SURIHVVLRQDOLVP with employees’ rights to discuss and act upon their conditions at work can become particularly unwieldy in the forum of social media, which unleashes information in a relatively unprecedented manner. Accordingly, new and unique challenges continue to arise regarding social media policies. Policy language must be drafted carefully and with an eye toward often complex legal reasoning, and employment practices that regulate employee social media activity must be scrutinized in light of this rapidly developing area of law. Dawn Finlayson, a partner with Barton, East & Caldwell, specializes in the representation of management in employment law matters. She is Board &HUWLĂ€HG LQ /DERU DQG (PSOR\PHQW /DZ DQG KDV EHHQ LQ SUDFWLFH IRU RYHU WKLUW\ Ă€YH \HDUV
ENDNOTES 1
http://talkingpointsmemo.com/ livewire/white-woman-texas-pool-partyleave (last visited July 22, 2015). 2 KWWS ZZZ KXIÀQJWRQSRVW com/2015/06/11/racist-teachermckinney-party_n_7563568.html (last visited July 22, 2015). 3 29 U.S.C. §§ 157, 158(a)(1).
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See 29 U.S.C. §§ 157, 158(a)(1); see also https://www.nlrb.gov/rights-weprotect/whats-law/employees/i-amrepresented-union/concerted-activity (last visited July 22, 2015). 5 Texas Dental Association, NLRB No. 16&$ 6 https://www.nlrb.gov/news-outreach/ news-story/baylor-health-care-systemscott-white-healthcare-agree-rescindalleged (last visited July 22, 2015). 7 See NLRB General Counsel Memo GC 5HSRUW RI WKH *HQHUDO &RXQVHO Concerning Employer Rules, Mar. 18, 2015. 8 See NLRB General Counsel Memo OM 12-59, Report of the Acting General Counsel Concerning Social Media Cases, May 30, 2012; see also NLRB General &RXQVHO 0HPRV 20 -DQ 2012 and 20 $XJ 9 Three D, LLC d/b/a Triple Play Sports Bar & Grille v. NLRB &DXVH 1R G &LU ÀOHG 6HSW 10 29 U.S.C. § 158(a)(1).
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15 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
Gresham, Davis, Gregory, Worthy & Moore, P.C. A Part of Texas History
By Richard B. Moore
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KH ODZ ÀUP RI *UHVKDP 'DYLV Gregory, Worthy & Moore is as PXFK D SDUW RI 7H[DV KLVWRU\ DV LW LV ORcal legal history. Beginning in 1880, the ÀUP UHSUHVHQWHG PDQ\ SURPLQHQW ORcal and national clients for more than \HDUV ,Q WKH ÀUP¡V PHPEHUV DQG VWDͿ MRLQHG -DFNVRQ :DONHU / / 3 ending the existence of one of San Antonio’s oldest and most respected law ÀUPV 7KH WHUPLQDWLRQ RI WKH ÀUP ZDV attributable as much to the success of WKH ÀUP DQG LWV PHPEHUV DV WR DQ\ RWKer factor. 7KH *UHVKDP 'DYLV ÀUP ZDV LQLtiated in 1871, when August Weyman Houston graduated with Highest Honors from the Cumberland University ODZ VFKRRO LQ /HEDQRQ 7HQQHVVHH DQG returned to San Antonio to open his ODZ R΀FH 0U +RXVWRQ DOVR DWWHQGHG Washington College in Lexington, Virginia (now Washington & Lee University), attracted by the college’s president, General Robert E. Lee. August Houston
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was politically active and served as a 7H[DV 6WDWH 6HQDWRU IRU WKH WK /HJLVODtive District from 1879 to 1886. At that time, the 28th District stretched from east of San Antonio to El Paso, covering PLOHV DFURVV 7H[DV In 1880, August’s brother, Reagan Houston, Sr., joined him to establish the ´+RXVWRQ %URWKHUV¾ ODZ ÀUP /LNH $Xgust, Reagan graduated from the CumEHUODQG 8QLYHUVLW\ ODZ VFKRRO 7KH Houston brothers practiced until they both died in 1915. In 1896, Robert John Boyle joined Houston Brothers. Mr. Boyle had no law degree, but studied law in the ofÀFHV RI +RXVWRQ %URWKHUV 0U %R\OH was active in professional and political activities. Among many other clients, he represented railroads, the local Archbishop, and the Archdiocese of WKH &DWKROLF &KXUFK ,Q WKH ÀUP¡V name changed to Houston, Boyle & Storey. When the Houston brothers died, WKH ÀUP¡V QDPH EHFDPH %R\OH 6WRUH\ Over the next 100 years, there were RWKHU QDPH FKDQJHV WKDW UHà HFW WKH ÀUP¡V ULFK KLVWRU\ ,Q WKH ÀUP EH-
16 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
came Boyle, Ezell, Houston & Thomas. The Houston included in the 1917 name change was Reagan Houston, Jr. /LNH 0U %R\OH 5HDJDQ +RXVWRQ KDG no law degree, but he studied law in San Antonio and at the family ranch in Kendall County. He was admitted to the State Bar in 1911. He is reported to have earned one of the highest scores ever achieved on the Texas Bar Exam through 1911. It’s unclear how long Reagan HousWRQ -U VWD\HG ZLWK WKH ÀUP EXW LQ WKH HDUO\ V WKH ÀUP¡V QDPH FKDQJHG WR Boyle, Ezell & Grover. During the early 1920s, John D. Wheeler, a prominent South Texas trial attorney, joined the ÀUP ,Q WKH QDPH EHFDPH %R\OH Wheeler, Grover & Terrell. The Terrell LQ WKH ÀUP QDPH ZDV 5REHUW : % 7HUrell, who graduated from the University of Texas and obtained his law degree from Cumberland University. Later, Robert W. B. Terrell served as Judge of the 73rd Judicial District Court in San $QWRQLR +H ZDV D ÀUP SDUWQHU IURP 1925 through the early 1940s. Rupert N. Gresham also joined the ÀUP LQ WKH HDUO\ V DIWHU VHUYLQJ LQ the military during World War I. The ÀUP EHFDPH NQRZQ DV %R\OH :KHHOer, Gresham & Terrell. Mr. Gresham brought expertise in federal taxation and estate planning. He was very active with the State Bar of Texas and served as its President in 1954-55. During his presidency of the State Bar, Mr. Gresham was instrumental in achieving the passage of the Texas Business CorporaWLRQ $FW DV ZHOO DV VLJQLÀFDQW UHYLVLRQV to the Texas Probate Code. Mr. Gresham also served as Chairman of the Tax Section and the Real Estate, Probate, and Trust Law Committee for the State Bar. He was active in the American Bar $VVRFLDWLRQ DQG DPRQJ RWKHU R΀FHV served on its Board of Delegates and as Chairman of the ABA’s Taxation SecWLRQ ,Q WKDW FDSDFLW\ KH WHVWLÀHG EHIRUH and advised, the U. S. House Ways and Means Committee. Mr. Gresham also served as the Chairman of the Board of Trustees for St. Mary’s University School of Law. 5LFKDUG 7 'DYLV MRLQHG WKH ÀUP in 1947, after serving as a Naval intelOLJHQFH R΀FHU GXULQJ :RUOG :DU ,, 7KH ÀUP QDPH ZDV FKDQJHG WR %R\OH Wheeler, Gresham & Davis. In 1950, %RQG 'DYLV MRLQHG WKH ÀUP DIWHU VHUYLQJ DV DQ $UP\ $LU &RUSV R΀FHU GXU-
ing World War II. Richard and Bond decided to share one name identifying the two Davises as named partners. Richard had an outstanding career as a transaction lawyer and mineral law practitioner. Bond was a noted trial lawyer who represented railroads, practiced estate planning, and advised clients on general business matters. In 1949, Claiborne B. Gregory, a graduate of the Yale Law School, left WKH 2΀FH RI &KLHI &RXQVHO IRU WKH ,Qternal Revenue Service and joined the ÀUP ,Q WKH ÀUP EHFDPH %R\OH Wheeler, Gresham, Davis & Gregory. Mr. Gregory was very active in local and state bar activities, and served as chairman of the Texas State Bar Taxation Section. Mr. Gregory actively continued and augmented the taxation and HVWDWH SODQQLQJ ODZ SUDFWLFH ÀUVW JHQHUated by Mr. Gresham. In 1959, Albert W. Worthy joined WKH ÀUP DIWHU VHUYLQJ DV )LUVW $VVLVWDQW City Attorney for the City of San Antonio and Acting Director of the Texas Legislation Council. In 1960, Richard % 0RRUH MRLQHG WKH ÀUP ,Q WKH ÀUP QDPH FKDQJHG WR *UHVKDP 'DYLV Gregory, Worthy & Moore. Claiborne % *UHJRU\ -U MRLQHG WKH ÀUP LQ 0DUVKDOO % 0LOOHU LQ 1DQF\ $ 1RUPDQ LQ 3HWHU ( +RVH\ LQ DQG - 0DUN &RPX]]LH LQ 2WKHU attorneys who served with Gresham Davis were Ben J. Chilcutt, who practiced estate planning and tax law from WKURXJK 0RXOWRQ 6 'RZOHU -U D WULDO DWWRUQH\ ZKR MRLQHG WKH ÀUP LQ DQG FRQWLQXHG ZLWK WKH ÀUP XQWLO LWV WHUPLQDWLRQ 'RXJODV : %HFNHU -U ' +XOO <RXQJEORRG -U DQG 5 + Tibaut Bowman. Gresham, Davis, Gregory, Worthy & Moore was privileged to represent such prominent clients as the Santa )H 6\VWHP 0LVVRXUL 3DFLÀF 5DLOURDG
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Company, Fox-Stanley Photo Products, Inc., American Hospital and Life Insurance Company, Aetna Life Insurance &RPSDQ\ 7KH )URVW 1DWLRQDO %DQN Borden Company, Firestone Tire & Rubber Company, Connecticut Mutual Life Insurance Company, The San Antonio Country Club, Holt Companies, Charles Martin Wender in his Crownridge and Westover Hills, Ltd. developments, Scott Petty, Jr. and Petty Ranch Company, Bluegreen Development Corporation, Southerland Properties and Southern Energy & Exploration &RPSDQ\ ,Q MRLQLQJ -DFNVRQ :DONHU WKH SDUWQHUV ZDQWHG WR EH SDUW RI D ÀUP WKDW FRXOG RͿHU LWV FOLHQWV D EURDGHU spectrum of legal services and depth of personnel than had been available in WKH H[LVWLQJ *UHVKDP 'DYLV ÀUP Over the years, Gresham, Davis, Gregory, Worthy & Moore enjoyed the participation and support of many loyal employees, including Kathleen PaisOH\ RYHU \HDUV -DQLFH %ODFN RYHU 50 years), and Katharine Nellis (over 35 years). When Gresham Davis joined ZLWK -DFNVRQ :DONHU / / 3 'RORUHV 7KRPV %UHQGD (FNHUW DQG /LVD 6DQWRV FRQWLQXHG ZLWK WKH QHZ ÀUP WKHLU WHQXUHV ZLWK WKH WZR ÀUPV DUH \HDUV IRU 0V 7KRPV \HDUV IRU 0V (FNHUW DQG 30 years for Ms. Santos. Richard B. Moore, formerly with Gresham, Davis, Gregory, Worthy & Moore, joined Jackson Walker L.L.P. in April 2001. Mr. Moore has practiced law in San Antonio for 55 years. He has extensive experience assisting clients with a broad spectrum of business and real estate related PDWWHUV ZLWK %RDUG &HUWLÀFDWLRQV LQ &RPPHUFLDO Real Estate Law and Farm and Ranch Real Estate Law.
17 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
0HQWDO ,OOQHVV 1R 6KDPH %\ -XVWLFH /X] (OHQD ' &KDSD
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he legal profession is ÀOOHG ZLWK FRPSDVVLRQDWH XQGHUVWDQGLQJ DQG VHOà HVV people who, at one time or another, experience the emotional triumphs and disappointments of the job. Along the way, lawyers and judges feel a good amount of stress, and without proper management, it can spiral out of control and lead to mental LOOQHVV OLNH GHSUHVVLRQ 7KHUH , VDLG LW³ PHQWDO LOOQHVV ,W FDQ DͿHFW RXU OLYHV DW ZRUN DQG FDUU\ RYHU WR RXU UHODWLRQVKLSV with family and friends. If we personally have not experienced this scenario, there
LV QR GRXEW ZH NQRZ VRPHRQH ZKR KDV RU has a family member who has. I am one of those people. After receiving my family’s blessing, , EHFDPH DQ R΀FLDO DGYRFDWH IRU &ODULW\ Child Guidance Center and its One in Five 0LQGV FDPSDLJQ³DOO LQ DQ HͿRUW WR EULQJ more awareness to children’s mental KHDOWK QHHGV DQG WR KHOS EUHDN GRZQ the generations of stigma embedded in our society. If you or someone you love KDV QRW FRPH IRUZDUG WR VHHN KHOS QRZ is the time. By coming forward, you give RXU FRPPXQLW\¡V FKLOGUHQ D IXWXUH ÀOOHG with hope—hope for acceptance rather than rejection—hope for being embraced rather than ignored—hope for living in the sunlight rather than in the shadows.
Here, I share with you my letter to the editor that was published in the San Antonio Express-News, highlighting why letting go of shame associated with PHQWDO LOOQHVV LV D PXVW 7KDQN \RX IRU reading. I hope it helps. Justice Luz Elena D. Chapa was elected to serve on the Fourth Court of Appeals HͿHFWLYH -DQXDU\ 2013. Justice Chapa is a dual-graduate of St. Mary’s University and practiced civil trial law with a concentration in products liability for twelve years prior to her election.
Fourth Court Update L El Luz Elena D D. Ch Chapa, M Mental t l ill illness no cause ffor shame, h SAN ANTONIO EXPRESS-N NEWS 0D\ 0 2015, at A10 (reprinted here with permission)
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18 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
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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 Venue; Motion to Transfer Clayton Williams Energy, Inc. v. Pace Energy Solutions, Inc., 7:15-CV-435-DAE (Ezra, D., May 19, 2015) Court denied defendant’s motion to dismiss for improper venue. General venue provision, 28 U.S.C. § 1391, does not apply in a removed DFWLRQ UDWKHU YHQXH LV JRYHUQHG E\ 28 U.S.C. § 1441(a), and was thus proper in the district court for the district and division embracing the place in which the action was brought. Court denied defendant’s motion to transfer venue to Northern District of Florida. $OWKRXJK GHIHQGDQW¡V D΀GDYLW VWDWHG LW ZDV IRUFHG WR OD\ RͿ QHDUO\ DOO HPSOR\HHV PDNLQJ WKHP EH\RQG court’s subpoena power unless venue was transferred, defendant IDLOHG WR LGHQWLI\ VSHFLÀFDOO\ ZKLFK former employees were potential witnesses, what they would testify to, and where they resided. Court rejected defendant’s argument
that it was a small mom-and to the representation. Court pop company struggling to stay ZDV VHQVLWLYH WR WKH GL΀FXOW\ LQ VROYHQW DQG SODLQWLÍż D SXEOLFDOO\ securing counsel and prejudice traded company, was better able to WR SODLQWLÍż IURP GLVTXDOLI\LQJ bear costs associated with travel, her counsel, but permitting her KROGLQJ GHIHQGDQWV¡ Ă€QDQFLDO counsel to continue posed too circumstances were irrelevant to VHULRXV D FRQĂ LFW DQG ZRXOG OHDG WR venue analysis. Finally, although unnecessary confusion, especially FDVHV JHQHUDOO\ SURFHHG WR WULDO Ă€YH VLQFH GHIHQGDQW QDPHG SODLQWLͿ¡V months faster in Northern District counsel a responsible third party in of Florida than Western District of the suit. Texas, court placed little weight on factor considering relative court )/6$ 3DUWLDO 6XPPDU\ -XGJPHQW congestion. Escobar v. Rental Xpress, LLC, SA-14-CV267-XR (Rodriguez, X., May 26, 2015) 3ODLQWLÍżV ZHUH HPSOR\HG DV VHUYLFH $WWRUQH\ 'LVTXDOLĂ€FDWLRQ 0DWHULDO :LWQHVV 8QGXH +DUGVKLS technicians for defendant, Rental Spencer v. BMW of N. Am., 5:14-CV;SUHVV //& 3ODLQWLÍżV DOOHJHG WKH\ were not given proper overtime 00869-DAE (Ezra, D., June 26, 2015) compensation in violation of the Court granted defendant’s motion Fair Labor Standards Act (FLSA). WR GLVTXDOLI\ SODLQWLͿ¡V FRXQVHO &RXUW JUDQWHG SODLQWLÍżV¡ PRWLRQ 3ODLQWLͿ¡V FRXQVHO SODLQWLͿ¡V for partial summary judgment on husband and owner of vehicle two issues: that defendants could involved in accident in question) not use 29 U.S.C. § 207(f), more was a material witness and sole commonly referred to as a “Belo witness regarding sequence SODQ Âľ DV DQ D΀UPDWLYH GHIHQVH RI HYHQWV OHDGLQJ WR SODLQWLͿ¡V and that Middleton, owner of Rental injuries resulting from allegedly Xpress, is an “employerâ€? under GLVHQJDJHG HPHUJHQF\ EUDNH the FLSA. It was undisputed that Western District of Texas has Rental Xpress is an employer under adopted Texas Disciplinary Rules of the FLSA, and Shea Middleton Professional Conduct as standards of the court, but such Rules and is an owner for FLSA purposes. Comments provide guidance and Defendants argued that they had are not controlling when federal D YDOLG %HOR SODQ ZLWK SODLQWLÍżV ODZ KDV VSRNHQ &RXUW UHOLHG RQ Two of the four elements of a valid Fifth Circuit precedent allowing Belo plan were questioned: whether SURFHGXUDO GLVTXDOLĂ€FDWLRQ HYHQ WKHUH ZHUH LUUHJXODU ZRUN KRXUV ZKHQ D SODLQWLÍż KDV FRQVHQWHG YDU\LQJ E\ ZHHN DQG ZKHWKHU WKHUH
San Antonio Lawyer
20 7ITXIQFIV 3GXSFIV Ä€ĂžĂżÄƒ
was a clearly established “regular UDWH RI SD\Âľ IRU WKH Ă€UVW IRUW\ KRXUV to be performed. Court found that SODLQWLÍżV¡ ZRUN KRXUV ZHUH QRW irregular because uncontroverted evidence showed they were consistently expected to work over forty hours per week. Defendants provided no summary judgment HYLGHQFH RI D ´VSHFLĂ€HG UHJXODU UDWH of pay.â€? Court found that there was no genuine issue of material fact that defendants failed to establish they had a valid Belo plan as a matter of law. Leave to amend non-diverse parties; Hensgens Standard )ORUHV Y :LQG 7XUELQH (QHUJ\ &DOHV Corp., 5:15-CV-231-DAE (Ezra, D., May 21, 2015) 3ODLQWLÍż Ă€OHG D SHWLWLRQ DJDLQVW defendant and defendant’s alleged employer for claims of negligence. Defendants removed the case under GLYHUVLW\ MXULVGLFWLRQ 3ODLQWLÍż sought leave to amend, to add nondiverse defendants. Court applied the Hensgens standard to determine whether the joinder of non-diverse parties should be permitted. Court found that the purpose was not to defeat federal jurisdiction, which weighed in favor of amendment. 7KH DPHQGPHQW ZDV Ă€OHG OHVV than a month after the case was UHPRYHG DQG WKXV SODLQWLÍż ZDV QRW GLODWRU\ 7KHUH LV QR LQGLFDWLRQ SODLQWLÍż ZRXOG VXÍżHU SUHMXGLFH if OCI Solar was not joined as a defendant, weighing against allowing amendment. Hensgens directs courts to consider any other factors bearing on the equities. Court noted that adding defendant at this point in litigation would unnecessarily complicate a simple FODLP RI QHJOLJHQFH 3ODLQWLÍż submitted no argument or evidence that the addition of the defendant ZDV QHFHVVDU\ WR DÍżRUG IXOO UHOLHI &RXUW GHQLHG SODLQWLͿ¡V PRWLRQ WR amend.
outstanding on the loan. Parent alleged that defendants continued to demand additional payment on VHSDUDWHO\ FRVLJQHG ORDQV DQG ÀOHG suit in state court, alleging claims XQGHU WKH 'HFHSWLYH 7UDGH 3UDFWLFHV Act. Parent alleged damages over $100,000 but less than $200,000. 7KH FDVH ZDV UHPRYHG DQG parent sought remand. Diversity jurisdiction requires Defendants to SURYH SODLQWLͿ ZDV VHHNLQJ DW OHDVW 3ODLQWLͿ DUJXHG WKH FODLP is for less than the jurisdictional amount, and she selected the $100,000 to $200,000 range so that she would not be subjected to restrictions of discovery applicable to lower tiers and so that the case would not be placed on an expedited docket. In determining ZKHWKHU D SODLQWLͿ SOHG GDPDJHV in bad faith, the court enquires ZKHWKHU WKH SODLQWLͿ FDQ VKRZ WKDW VKH FRXOG QRW DW WKH WLPH RI ÀOLQJ UHFRYHU LQ H[FHVV RI 7KH facts did not indicate how much additional payment defendants FRQWLQXHG WR GHPDQG RU LI SODLQWLͿ paid the original amount requested, QRU GLG SODLQWLͿ VSHFLI\ KRZ much she seeks in mental anguish damages. Attorneys’ fees are includable in the court’s calculation of the amount in controversy. Court KHOG WKDW LW FRXOG QRW ÀQG DV D OHJDO FHUWDLQW\ WKDW SODLQWLͿ FRXOG QRW recover in excess of $75,000 at the WLPH RI ÀOLQJ $FFRUGLQJO\ FRXUW denied the motion to remand.
Soledad Valenciano practices commercial and real HVWDWH OLWLJDWLRQ ZLWK 6SLYH\ 9DOHQFLDQR 3//& Melanie Fry practices commercial litigation and DSSHOODWH ODZ ZLWK '\NHPD &R[ 6PLWK
Amount in Controversy 0LGGOHEURRN Y 6/0 )LQ &RUS &9 237-DAE (Ezra, D., May 20, 2015) In 2005, a parent co-signed a student loan for her son, and when the loan went into default in 2015, she VDWLVĂ€HG WKH UHPDLQLQJ REOLJDWLRQ
San Antonio Lawyer
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Lawyer San Antonio
Published by San Antonio Bar Association ÿÞÞ (SPSVSWE 7XI ÄƒĂžĂž 7ER %RXSRMS 8I\EW Ä…Ä†Ä€ĂžÄƒ [[[ WEFEV SVK ĀÿÞ ĀĀą ĆĆĀĀ
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San Antonio Lawyer
The San Antonio Lawyer is published bimonthly by the San Antonio Bar Association. Reproduction in any manner of any material, in whole or in part, is prohibited without the express written consent of the Editor in Chief. Material contained herein does QRW QHFHVVDULO\ UHĂ HFW WKH RSLQLRQ RI the Publisher or its staff. San Antonio Lawyer, the San Antonio Bar Assocation and the Publisher reserve the right to edit all materials and assume no responsibility for accuracy, errors or omissions. San Antonio Lawyer and the Publisher do not knowingly accept false or misleading advertisements, false or misleading editorials and do not assume any responsibility should such editorials or advertising appear.
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Carolyn with her prize-winning orchids.
life sentence! On appeal, the Fifth Circuit agreed with Carolyn that thirtycase of United States v. Cynthia Lyda, WZR \HDUV ZDV QRW ´OLNH¾ WHQ \HDUV DQG 274 F.3d 897 (5th Cir. 2001). The gov- ordered her sentence reduced accordernment charged Mrs. Lyda under the ingly. In 2014, Carolyn retired from the federal Assimilative Crimes Act (ACA) with intentionally injuring her children )HGHUDO 3XEOLF 'HIHQGHU¡V R΀FH KDYwhile they were patients in a military ing had a career few others could hope base hospital. Its theory was that Mrs. for. She now devotes most of her time to /\GD KDG D SV\FKLDWULF GLVRUGHU NQRZQ her great passion, growing orchids, and as Munchausen’s Syndrome by Proxy, to her husband (me) and her English which illness supposedly caused her EXOO WHUULHU 7URWVN\ &DURO\Q KDV ZRQ actions. Despite the fact that its theory more than a dozen national awards was that the defendant was mentally ill, for her orchids. It’s been an incredible the government sought and obtained journey for one who started out on the an eleven-count felony indictment, in- south side of San Antonio at St. Lawcluding at least one charge that carried rence. And that journey is not over yet. &DURO\Q UHFHQWO\ WRRN D SUR ERQR LPa life sentence. S On the eve of trial, Mrs. Lyda plead- PLJUDWLRQ FDVH³ZKR NQRZV SHUKDSV ed guilty to four counts of injury to a there’s a new career on the way. child and endangering a child—counts Farley P. Katz, not a carrying sentences totaling thirty-two stranger to the courtroom years of imprisonment if imposed conhimself, is a partner with secutively. At sentencing, Carolyn arStrasburger, with a practice gued that because the ACA imposed a emphasizing civil and ´OLNH SXQLVKPHQW¾ DV SURYLGHG XQGHU criminal tax controversies. state law, it required Mrs. Lyda’s senHe and Carolyn recently tences to be imposed concurrently, for celebrated their 33rd a total of no more than ten years. EvAnniversary. eryone was dismayed when the judge VWDFNHG WKH FRXQWV DQG VHQWHQFHG 0UV /\GD WR WKLUW\ WZR \HDUV HͿHFWLYHO\ D
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San Antonio Lawyer
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