Dallas Bar Association
HEADNOTES February 2013 Volume 38 Number 2
ABA—Welcome to Dallas! The Dallas Bar Association welcomes the American Bar Association to our city for its Midyear Meeting, February 6-12, 2013. Whether you are here enjoying the ABA’s various CLE programs or here for the meetings of the National Conference of Bar Executives, National Conference of Bar Presidents, a Section meeting or the House of Delegates meeting, please take time to enjoy our city. Dallas has a population of 1.2 million and is growing rapidly with $15 billion in new development underway. The Dallas area is home to 24 Fortune 500 companies and is the Number 1 visitor destination in Texas with something to offer everyone. The Dallas Bar headquarters, the historic Belo Mansion and Pavilion, located at 2101 Ross Avenue in the heart of the Dallas Arts District is just a short distance from all the downtown hotels. A buffet lunch is open to all ABA members and guests each day. The Dallas Arts District is the largest urban arts district in the nation. We hope that you will plan to visit the Perot Museum of Natural History, the Dallas Museum of Art, the Nasher Sculpture Gar-
den, the Winspear Opera House and the Meyerson Symphony Center. And the restaurants—what an exciting time to be in Dallas. The DFW-area has acquired an A-list lineup of recognized top chefs. A restaurant guide can be found at www.dallasbar.org. It was prepared by the Dallas Bar Association staff and contains the names of world-renowned chefs and restaurants as well as down-home restaurants that we hope you will visit. Dallas is a sports-lovers dream with five professional franchises and ranked America’s Best Sports City. Visit the Dallas Cowboys Stadium; see the Dallas Stars play hockey or the Dallas Mavericks play basketball at the American Airlines Center. Explore some of the best shopping in the southwest in Downtown, Uptown, NorthPark and Highland Park Village. Cutting edge art galleries can be found in the Design District. And, for a birds-eye view of the city, take an elevator to the top of the Reunion Tower for one of the best views in town and one of the most beautiful skylines in the country. No matter what you do, enjoy your stay and HN welcome to Big D!
State Bar of Texas Welcomes ABA by Buck Files
I am looking forward to being in Dallas at the American Bar Association’s 2013 Midyear Meeting, February 6-12. Dallas will be a wonderful host city for this important event, which will bring more than 3,000 ABA members and their families to Dallas to conduct the association’s business. The meeting would not be possible without the Dallas Bar Association members’ support of, and commitment to, the ABA and I congratulate you on that excellent partnership. Thank you for providing Texas hospitality to our colleagues from across the nation. During the ABA meeting, I will be privileged to speak on February 9 at the Indigent Defense Symposium. We will be discussing the importance of the U.S. Supreme Court’s 1963 deci- Buck Files sion in Gideon v. Wainwright. Even though the opinion was handed down 49 years ago, I remember it well because I had just graduated from law school. In March, many of us in Texas and throughout the nation will celebrate the 50th Anniversary of the Gideon ruling, and for good reason. As we all know, the Supreme Court held that the Sixth Amendment to the U.S. Constitution, providing that in all criminal prosecutions the accused shall enjoy right to assistance of counsel for his defense, is made obligatory on the states by the Fourteenth Amendment, and that an indigent defendant in a criminal prosecution in a state court has the right to have counsel appointed for him. Justice Hugo Black’s opinion included this sentence: “That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-
spread belief that lawyers in criminal courts are necessities, not luxuries.” Before Gideon, people unable to afford an attorney had a constitutional right to an appointed lawyer only if they were charged with a crime that could result in a death sentence. At the State Bar of Texas, assuring all citizens equal access to justice is part of our mission, and that includes continuing to focus on ways to advance efforts for indigent defense. In 2009, the State Bar supported the creation of the Office of Capital Writs, a state agency that represents people who have been sentenced to death in state post-conviction habeas corpus and related proceedings. The State Bar’s Legal Services to the Poor in Criminal Matters Standing Committee has been working to improve the system that provides legal representation to indigent people accused of crimes. The committee has produced resources for both lawyers and the public, such as Performance Guidelines for Non-Capital Criminal Defense Representation and Defending Yourself in a Criminal Case and Dangers of Being Your Own Lawyer, Even for a Misdemeanor. Access these on www.texasbar.com. The State Bar also continues to work with other organizations, such as the Texas Indigent Defense Commission, Texas Access to Justice Commission and local bar associations to address the need for an improved indigent defense system. Many Texas attorneys are helping bridge the indigent defense gap through their commitment to pro bono work, assisting those who otherwise could not afford a lawyer. Working together, we can ensure that everyone has equal access to justice. I look forward to seeing you in at the ABA Mid HN year Meeting. Welcome to Texas.
Inside 9 Get Used to It: Recent Rulings Cement Arbitration Acceptance 11 Pitfalls of Incorporating Online Terms Into Printed Contracts 15 Texas Anti-SLAPP Law: New Procedure Allows for Early Dismissal 17 Settlement Negotiations as Evidence at Trial
Focus Business Litigation
Message from ABA President Laurel G. Bellows Dear Colleagues: It is my pleasure to join you in Dallas for the 2013 ABA Midyear Meeting, February 6-12. Thank you to the Dallas Bar Association for welcoming the American Bar Association to your beautiful city! Under the leadership of DBA President Sally Crawford and Executive Director Catharine Maher, your organization’s dedication to enhancing the practice of law and bringing the best of the Dallas legal community to the rest of the nation is inspiring. Congratulations to the DBA for your remarkable efforts to raise more than $800,000 in 2011 and over $830,000 to date in 2012 for the Campaign for Equal Access to Justice. The ABA shares the DBA’s commitment to public service and access to justice. At the Eighth Annual Summit on Indigent Defense Improvement at this year’s Midyear Meeting, leaders of state and local bars will learn about issues in indigent defense and discuss solutions. This year is the 50th anniversary of Gideon v. Wainwright, and sessions at the Midyear Meeting will examine the vital issue of right to counsel. Special speakers include major figures in the criminal justice system: Texas State Senator Royce West; Judge Barbara Hervey, Texas Court of Criminal Appeals and founder of the Texas Criminal Justice Integrity Unit; Lynn Laurel G. Bellows Richardson, Chief Public Defender of Dallas County; and Russell Wilson, Special Fields Bureau Chief for the Dallas District Attorney’s Conviction Integrity Unit. This distinguished panel will discuss the importance of early involvement of counsel in indigent defense. The ABA’s Commission on Youth at Risk will host a CLE that will assess how best to identify and represent youths who are the victims of human trafficking—modern-day slaves. Mary Ellison, director of policy for the Polaris Project and a member of the ABA’s Task Force on Human Trafficking, will speak at this session, along with local legal experts who will offer an in-depth understanding of Texas’ response to child trafficking. Markus Funk, co-author of the critically acclaimed book “Child Exploitation and Trafficking,” will join panelists to discuss the nature and scope of human trafficking in the United States. The panelists will review federal and state law, discuss the work of state human trafficking task forces and local legislative developments, offer an overview of the business community efforts to combat modern-day slavery and discuss pro bono opportunities for attorneys. The ABA meetings are an opportunity to recognize attorneys and judges who are doing great things nationally and in their home states. The Eighteenth Annual Spirit of Excellence Awards Luncheon will recognize lawyers who have demonstrated an unwavering commitment to diversity in the legal profession. This year’s honorees, Dr. Walter L. Sutton Jr., M. Javade Chaudhri, Stacy L. Leeds, Myles V. Lynk, Jenny Rivera and Thomas A. Saenz, exemplify excellence through promoting full and equal participation in the legal profession and removing obstacles to achieve real progress. Many members and staff dedicated themselves to organizing this meeting. Among numerous others, special thanks to Sally Crawford, as well as Dallas attorneys Kim J. Askew, Harriet Miers, Monica Latin, Talmage Boston, Ron Breaux, Chris Rogers, Chip Brooker, Amy Davis, Rhonda Hunter, Darrell E. Jordan, John H. McDowell, Mark Sales, Diane Sumoski, Aimee Williams, Brad Weber and Judge Barbara M.G. Lynn for their counsel and leadership. Thank you also to Justices Douglas Lang and Elizabeth Lang-Miers for their lifelong friendship and support. I also want to express my appreciation to Cathy and the DBA staff and the DBA’s sister bar associations: the Dallas Asian American Bar Association, Dallas Hispanic Bar Association, J.L. Turner Legal Association and the Dallas Association of Young Lawyers. They all deserve special acknowledgment for working to make this meeting a tremendous success. We look forward to seeing you! Sincerely,
Laurel G. Bellows President, American Bar Association
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
February Events
FEBRUARY 1-BELO Noon
FRIDAY CLINICS
“Surviving and Thriving as a Practicing Lawyer Recovering from Alcoholism and Depression,” Kevin Fuller. (Ethics 1.00)* Co-sponsored by the CLE and Peer Assistance Committees. RSVP to kzack@dallasbar.org.
FEBRUARY 8-NORTH DALLAS** Noon
“New Sources of Fees: A Non-Tax Lawyers Guide to 2013 Taxes,” James V. Roberts. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Underwood Perkins, P.C. RSVP to kzack@dallasbar.org.
FEBRUARY 15-BELO Noon
“Mediation Techniques—Communication and Candor,” Judge Ted Akin, Cecilia Morgan and Will Pryor. (MCLE 1.00)*
FRIDAY, FEBRUARY 1 Noon
Friday Clinic-Belo “Surviving and Thriving as a Practicing Lawyer Recovering from Alcoholism and Depression,” Kevin Fuller. (Ethics 1.00)* Cosponsored by the CLE and Peer Assistance Committees. RSVP to kzack@dallasbar.org. Juvenile Justice Committee CLE “Attorney Ad Litem: Advocating for Youth Aging Out of the Texas Foster Care System,” Mary Christine Reed. (MCLE 1.00)* First Floor, Training Room 2A & 2B Henry Wade Juvenile Justice Center (600 Lone Star Drive, Dallas). Memorial & History Committee
MONDAY, FEBRUARY 4 Noon
Tax Law Section “Eggshell Audits: Handling IRS Examinations of Closely Held Businesses When There Are Criminal Tax Issues,” Larry A. Campagna. (MCLE 1.00)*
Peer Assistance Committee
THURSDAY, FEBRUARY 7 Noon
Noon
Corporate Counsel Section “So You Want to Be a General Counsel?” David M. Love III. (MCLE 1.00)*
Tort & Insurance Practice Sections “How to Make a Convincing Case for Settlement,” Panel of speakers TBD. (MCLE 1.00)*
Lawyer Referral Service Committee
Summer Law Intern Program Committee
6:00 p.m. DAYL Board of Director’s Meeting
WEDNESDAY, FEBRUARY 6
Employee Benefits & Executive Compensation Law Section “Liability Considerations Involving ERISA Fee Disclosures: The View From the Expert Witness,” Heath Miller & Al Otto, Shepherd Kaplan, LLC. (MCLE 1.00)* Solo & Small Firm Section “Hot Spots, Danger Zones, and Red Flags in Engagement Letters,” Randy Johnston. (MCLE 1.00)*
Construction Law Section “Advice for Lawyers and their Clients Doing Business on the Internet,” Peter Vogel. (MCLE 1.00)* Judiciary Committee “Beware! New Civil Rules Are On the Way and Lawyer and Judges Need to Know Their Impact!” Hon. Martin Hoffman, Keith O’Connell and Brian Pope. (MCLE 1.00)*
St. Thomas More Society
Family Law Section Board Meeting
DAYL Freedom Run Committee
FRIDAY, FEBRUARY 8 Noon
TUESDAY, FEBRUARY 5
Noon
February 2013
Friday Clinic-North Dallas** “New Sources of Fees: A Non-Tax Lawyers Guide to 2013 Taxes,” James V. Roberts. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Underwood Perkins, P.C. RSVP to kzack@dallasbar.org. Government Law Section “Recent State Cases of Interest to Government Entities,” Janet M. Spugnardi. (MCLE 1.00)* Trial Skills Section “Opening Statements—Do’s, Don’ts, and a Short Demonstration,” Rod Phelan. (MCLE 1.00)*
MONDAY, FEBRUARY 11
11:30 a.m. House Committee Walk Through Noon
Bench Bar Conference Committee
DAYL Lunch & Learn. For more information, contact cherieh@dayl.com
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, FEBRUARY 14 Noon
CLE Committee
Law in the Schools & Community Committee
Publications Committee
Christian Lawyers Fellowship
6:00 p.m. J.L. Turner Legal Association
FRIDAY, FEBRUARY 15 Noon
Friday Clinic-Belo “Mediation Techniques—Communication and Candor,” Judge Ted Akin, Cecilia Morgan and Will Pryor. (MCLE 1.00)*
Transition to Law Practice Committee
Noon
Intellectual Property Law Section “Direct and Indirect Infringement after Akamai,” Casey Griffith. (MCLE 1.00)*
DAYL CLE Committee
MONDAY, FEBRUARY 25 Noon
Computer Law Section “Aftermath of Akamai and the Future of Joint Infringement,” W. Keith Robinson. (MCLE 1.00)*
Securities Section “2012 Update of Delaware Fiduciary Duty Law,” Todd Murray. (MCLE 1.00)*
Criminal Justice Committee
Golf Tournament Committee
DAYL Solo & Small Firm Committee
TUESDAY, FEBRUARY 26 Noon
Franchise & Distribution Law Section “Annual Franchise Law Update,” Mo Alturk, Kelly Ganzberger Dion, Paul Russell, Suzie Trigg. (MCLE 1.00)*
Probate, Trust & Estate Section “Creditors’ Claims,” Nathan Griffin. (MCLE 1.00)*
Labor & Employment Law Section “Public Employment Law Update,” Michael J. Merrick. (MCLE 1.00)*
American Immigration Lawyers Association
DAYL Aid to the Homeless Committee
Senior Lawyers Committee
DAYL Foundation Board Meeting
MONDAY, FEBRUARY 18 Noon
FRIDAY, FEBRUARY 22
TUESDAY, FEBRUARY 19 Noon
International Law Section “Merger of UNCITRAL Model Law on Cross Border Insolvency and Federal Bankruptcy Law: The 7 Year Itch and (Un)fulfilled Expectations Under Chapter 15,” David D. Ritter. (MCLE 1.00)*
Speakers Committee
DAYL Elder Law Committee
6:00 p.m. Experience Exchange Mentoring Dinner An exchange of ideas and experiences to build relationships in the community. Attorneys: $20. Law Students: $10. Scholarships available. Contact ahernandez@dallasbar.org. Sponsored by the DBA Minority Participation Committee. 6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, FEBRUARY 27 Noon
Collaborative Law Section “Tips and Tricks for Reducing Costs in Collaborative Cases,” Nicole LeBoeuf and Christopher M. Farish. (MCLE 1.00, Ethics 0.25)*
Sports & Entertainment Law Section “Material Girl: Protecting Entertainment Industry Assets With IP Laws,” Tamera H. Bennett. (MCLE 1.00)*
DVAP New Lawyers Luncheon. Contact reedbrownc@lanwt.org for more information. Municipal Justice Bar Association
WEDNESDAY, FEBRUARY 20 Noon
Energy Law Section Topic Not Yet Available
Health Law Section “ICD-10 Compliance and RAC,” Rachel V. Rose. (MCLE 1.00)*
Noon
Alternative Dispute Resolution Section “Where is Mediation Headed in 2013?” Panel of Dallas County Judges. (MCLE 1.00)*
Law Day Committee
Library Committee
Real Property Law Section “A Seismic Shift?: The Texas Anti-Indemnity Act,” Neal J. Suit. (MCLE 1.00)*
Pro Bono Activities Committee
THURSDAY, FEBRUARY 28
Non-Profit Law Study Group
TUESDAY, FEBRUARY 12 Noon
Business Litigation Section “Using Depositions to Win at Trial,” Shane Read. (MCLE 1.00)*
Mergers & Acquisitions Law Section “Overivew of Compensation Issues in M&A Transactions,” David D’Alessandro, Chris Rowley and Shane Tucker. (MCLE 1.00)* Legal Ethics Committee
Juvenile Justice Committee
Public Forum Committee
DAYL Judiciary Committee
Dallas Bar Foundation Board of Directors Meeting 6:00 p.m. Home Project Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Summary of the Amendments to Chapter 9 of the Texas Uniform Commercial Code: Effective July 1, 2012,” Allen Dickey. (Ethics 1.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, FEBRUARY 21 Noon
Appellate Law Section Topic Not Yet Available
Minority Participation Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
DAYL Animal Welfare Committee
Noon
Criminal Law Section “DWI Court,” Judge Dan Patterson. (MCLE 1.00)*
Environmental Law Section “Getting the Most Out of Your Audit Process,” Rhonda S. Perry. (MCLE 1.00)*
DVAP CLE “Expunction & Non-Disclosure” David Patin, Jr. (MCLE 1.00)* Sponsored by DVAP and J.L. Turner Legal Association.
FRIDAY, MARCH 1 Noon
Friday Clinic-Belo “Trying the Bench Trial,” Judge Jim Jordan. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
WEDNESDAY, FEBRUARY 13 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Play Golf and Support Pro Bono Save the date for the 21st Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program. Thursday, May 2, 2013 at Brookhaven Country Club TREAT YOUR CLIENTS TO A GAME OF GOLF! Registration includes a sleeve of golf balls, goody bag, lunch, on-course beverages, post-tournament reception and awards dinner. The tournament is a 4-person scramble format -- limited to the first 128 golfers. Plus, we have first-rate team awards for 16 teams, a raffle and other fun contests and games! Check-in and practice range open at 11 a.m. and shotgun start is at 1:00 p.m. A reception and awards dinner will follow the tournament at approximately 5:00 p.m.
Register online at www.dallasbar.org. For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org. If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
Fe bru a ry 2 0 1 3
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Business Litigation
Green Lawsuits: Fertile Soil or Barren Ground? by David C. Kent
More than 40 years ago, Kermit the Frog lamented “it’s not easy being green.” Today, he might say “it’s not easy being anything other than green.” Fueled by government regulations mandating energy efficiency, marketers wanting to cash in on environmental awareness and concerns about global warming and climate change, the “green movement” has become big business. With big business comes big money. And with big money comes the specter of big lawsuits. Much has been written about the rise of “green litigation.” So far, it’s been more hype than reality. But there are several areas where “green litigation” is likely to grow. Construction performance in the context of breach of contract claims. Discussions of “green litigation” most commonly focus on construction litigation because of the dizzying growth of green certifying organizations, such as the United States Green Building Council’s LEED (Leadership in Energy and Environmental Design) rating system, the Green Building Initiative’s “Green
Globes” environmental assessment and rating system, and the EPA’s Energy Star building and appliance rating program, not to mention the release in 2012 of the International Code Council’s International Green Construction Code. Insofar as “green litigation” is concerned, these new certification standards and building codes do not change traditional legal theories and causes of action for breach of contract because they provide the evidentiary framework for proving what the standards say and establishing whether they were met. Evolving standards of care for design professionals. As adoption of green building codes and standards becomes more widespread, the design professional’s obligation to understand them, advise the project owner about their pros and cons and incorporate them into the design will become part of the accepted standard of care. The 2007 edition of the American Institute of Architects’ standard-form contract contains clauses directing architects to evaluate and discuss “environmentally responsible design approaches” with the project owner.
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Although a well-written contract can define the limits of these responsibilities, the standard of care for design professionals will progressively become “greener.” Misrepresentation and fraud claims. The perceived benefits of being “green” offer tantalizing sales and marketing opportunities. But the marketing department may tout a project’s “green” status as an existing achievement before the project is fully designed, much less built, even though many green certifications cannot be awarded until after construction. Other promised benefits may not be achieved and cannot be determined until the project has been operating for years. A 2009 USGBC study found that as many as one quarter of all LEED-certified buildings did not provide the energy savings predicted by their designers. The broader the marketing claim, the greater the opportunity for fraud and misrepresentation claims by disappointed project owners. Damages. Damage claims are likely to be one area where “green litigation” fulfills the promise of novel theories. Commonly touted “green” benefits include lower energy costs, improved product performance, increased real estate sales prices and rental rates, improved worker productivity and even lower workforce health care costs. The problem is that many “green” certifications are standards for product or building design, not performance. Yet, the promised benefits flow from performance, which can be highly dependent on consumer behavior, occupancy and use of the product or building. Quantifying these types of damages and causally linking them to a defendant’s alleged “green” misconduct will provide fertile ground for ingenious claims, defenses and factual disputes.
Consumer class action “greenwashing” claims. One active form of “green litigation” is the consumer class action “greenwashing” suit, which typically alleges that manufacturers use false, misleading and deceptive advertising to promote products as environmentally friendly. Examples from the last two years include suits disputing “all natural” advertising claims by Ben & Jerry’s ice cream, Tropicana orange juice, Campbell’s Soup, and Frito-Lay’s Tostitos and Sun Chips because the products contain genetically modified organisms or processed ingredients such as high fructose corn syrup. Nissan was sued in the fall of 2012 for allegedly false claims about the Leaf electric vehicle’s battery capacity and driving range. Whirlpool has been sued for claiming its home appliances meet Energy Star ratings, and Fiji bottled water was sued for allegedly using misleading symbols and slogans to suggest endorsement by an independent environmental organization. Although widely publicized when filed, less known is the fact that many of these cases have been dismissed on a variety of grounds, such as lack of standing. This decade’s “Y2K” fizzle? With the exception of consumer class action “greenwashing” suits, the promised bounty of “green litigation” has not yet materialized. Some speculate it never will and instead will be this decade’s version of “Y2K” litigation that went bust before it ever went boom. More likely, “green litigation” just hasn’t ripened yet. So much money is being spent on the “green” movement that HN litigation is sure to follow. David C. Kent is a special counsel at Sedgwick, LLP. He can be reached at David.Kent@sedgwicklaw.com.
4 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2013
Headnotes
President's Column
Celebration and Rededication By sally crawford
Inaugural Address given on January 19, 2013 As many of you know, each year the incoming bar president has a theme for his or her presidential year. My theme for the coming year is to “CELEBRATE”—starting now—the outstanding achievements and activities of our great bar association and its amazing members. Second, I would like all of us to REDEDICATE ourselves to the good work that we do day in and day out, especially in the area of providing legal services to those less fortunate in our community. What do we have to celebrate? Well, where do I begin? I recently attended a program at Belo that was focused on the many opportunities for lawyers to serve our profession and the community through involvement in bar association and other volunteer programs. Aaron Tobin, who is a member of the DBA Board, made a presentation about the many benefits and volunteer opportunities offered by the sections and committees of the bar and its sister organizations. Those committees and sections are made up of DBA members like you and me. As I listened to him talk about the services that Dallas lawyers perform, I felt a tremendous sense of pride in what we do. To start with, the sections of the bar, and to a lesser degree the committees, provide year-round CLE programs for free to all Dallas Bar members. We take this for granted, but believe me it is unique to local bar associations. As I indicated last month, most if not all other local bars charge their members for CLE. Our bar committees oversee and perform other programs which benefit our members and also sponsor numerous programs which benefit the community. Those programs include a host of mentoring activities, not just for students but also for lawyers. Even though we, as lawyers, may be adversaries in the courtroom and in board rooms, through the bar we work together for the common good of the profession and community. We should all be proud of our accomplishments and we should never take them for granted. That is why I want to take time this year to celebrate this good work and to rededicate ourselves to continuing, expanding and improving upon these services. In my view, one of the most important things we do as lawyers is provide pro bono legal services to those less fortunate in our community. Those of you who know me well know that pro bono work is my real passion—they don’t call me the “queen of pro bono” for nothing. As has been quoted so often “for those to whom much is given, much is required.” As lawyers we are generally very fortunate—personally and professionally. But not everyone in our community has the same opportunities and advantages that we do. The recent statistics of the ever growing number of people living in poverty in North Texas proves that. While I am sure people get tired of hearing me say that “we hold the keys to the courthouse”—it is true—we do. Without our willingness to provide pro bono legal services to the poor, they would be denied the benefit of our legal system, denied the benefit of justice. That is not acceptable—not to me and it should not be acceptable to you. We pride ourselves on our professionalism and we should. But if justice is denied to a large segment of our population, we have failed. We should not be proud; we should be ashamed if we allow this to happen. The good news is that a great many Dallas lawyers and non-law-
yers give generously of their time and talents to provide legal services to the poor. Many of those people are here tonight. I would like to recognize a few of them and celebrate their accomplishments with you. We do not have time to mention all of the people who do such great work, so please forgive me if I do not call your name. You know who you are and you should be proud of all you do to serve the community. First, I would like to recognize the staff of the Dallas Volunteer Attorney Program (DVAP). DVAP is a joint project of the Bar and Legal Aid of NorthWest Texas which provides access to legal services to the poor through its legal clinics and programs. DVAP recruits and trains lawyers like you and me to take pro bono cases in areas of law outside our usual areas of expertise. They mentor and guide us through those pro bono cases. In other words, DVAP makes it easy for us, as volunteer lawyers, to do good things. I want to give special recognition to DVAP staff member Chris Reed-Brown. Chris is not a lawyer; she recruits attorneys to do pro bono work. In fact, Chris recruited me to do pro bono work when I was first licensed to practice law in 1986. For more than 25 years Chris has recruited hundreds and hundreds of volunteer lawyers to do pro bono work. There is no telling how many people have been helped as a direct result of her work. Alicia Hernandez, another member of the DVAP staff, also deserves special recognition. Before becoming the Director of DVAP, she was a staff attorney and managing attorney for Legal Aid. Alicia has spent her entire career in public service. Rebecca and John Greenan are two lawyers who have also devoted their personal and professional lives to helping those less fortunate. John is with City Square, which is an organization that provides a variety of services to the homeless and the working poor in our community. He works on affordable housing projects as the Executive Director of the Central Dallas Community Development Corporation. Rebecca is currently on the staff of the SMU Dedman School of Law where she helps identify and provide opportunities for public service projects for SMU law students. Long before joining SMU, Rebecca also worked as a staff attorney for Legal Aid and she has served on the board of Legal Aid of Northwest Texas for many years. Rebecca and John are currently devoting much of their time, talent and personal resources to solving the problem of homelessness in Dallas. I also want to give a shout out to Diane Couchman. Diane is an outstanding litigator. She spent many years at Akin Gump but she is best known (at least to me and others in the legal aid arena) for her pro bono work. She is relentless in her commitment to providing legal services to the poor. We call Diane the “princess” of pro bono. She is younger than me or else she would be the “queen” of pro bono instead of me. Another non-lawyer who deserves recognition is Sam Prince. Sam has been the Director of Development at Legal Aid of Northwest Texas for over 10 years. There is no one more passionate and devoted to the cause of providing legal services to the poor than Sam—especially to women and children who are victims of domestic violence. Sam is a true hero. I could go on all night about lawyers and non-lawyers who are committed to pro bono work. Lawyers, like Anne Shuttee, Dawn Fowler, Mandy Childs, Amanda Todd, Gary Kennedy, Regina Montoya, Jeff Coen, Bill Holston, Kathy Kennedy, Lisa Blue Baron, Diane Sumoski, Michael Hurst and all of the past chairs of the Campaign for Equal Access to Justice, and all of the past presidents of the Dallas Bar Association (all of whom have been devoted to providing legal aid to the poor). There is one more person, however, that I would personally like to publicly recognize for his dedication to providing legal service to the poor. That is Joel Winful. Joel is the immediate past chairman of the board of directors of Legal Aid of Northwest Texas. In his capacity as chair, he spent an untold number of hours this last year, at great personal sacrifice of his family and his practice, working on matters related to Legal Aid and to the delivery of legal services to the poor. Joel, and so many others whose names you may or may not know, fulfill their ethical obligation and moral commitment to the profession by dedicating themselves to pro bono work so that everyone, not just the fortunate few who can afford it, get access to our system of justice. So you see that we have a lot to celebrate, but I would suggest that it is not enough. DVAP still turns away almost 50 percent of those who seek help. We have to change that. It is not a job for a few dedicated souls. It is a job for all of us. So I challenge each of you to dedicate or rededicate yourselves to service to the profession and the community, especially to those less fortunate. How can you do that? You can join a committee or section of the bar, you can get involved in a community service project through the Dallas Association of Young Lawyers, the DBA Community Involvement Committee, the DBA Pro Bono Activities Committee or other organization; you can volunteer at a DVAP clinic or take at least one DVAP case. Taking just one case may only take a few hours of your time, but it could literally change the life of someone less fortunate and it will make our community a better place for all of us. Again let me say that I am honored and proud to have the opportunity to serve the Dallas Bar as its President. I will do my best to serve the organization and you, its members. I look forward to celebrating your successes and the successes and accomplishments of the bar this coming year and to working with each of you to rededicate our efforts to service to our clients, our profession and the commu HN nity. Together we can and will make a difference.
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Sally L. Crawford President-Elect: Scott M. McElhaney First Vice President: Brad C. Weber Second Vice President: Jerry C. Alexander Secretary-Treasurer: John A. Goren Immediate Past President: Paul K. Stafford Directors: A. Shonn Brown (At-Large), Rob Crain (Chair), Wm. Frank Carroll, Hon. King Fifer (Judicial At-Large), Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst (Vice Chair), Michele Wong Krause, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Karen McCloud, Christina McCracken (At-Large), Mandy Price (President, J.L. Turner Legal Association), Sarah Rogers (President, Dallas Association of Young Lawyers), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin, Jennifer Wang (President, Dallas Asian American Bar Association). Advisory Directors: Tatiana Alexander (President-Elect, J.L. Turner Legal Association), Mey Ly (President-Elect, Dallas Association of Young Lawyers), Sakina Rasheed (PresidentElect, Dallas Asian American Bar Association), Elisabeth A. Wilson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Lawrence Boyd, Christina Melton Crain, Andy Payne, Frank E. Stevenson, II, Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Karla Howes, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Lea Dearing and Dawn Fowler Vice-Chairs: Jared Slade Members: Timothy Ackermann, Kevin Afghani, Vincent Allen, Natalie Arbaugh, Favad Bajaria, Matthew Baker, Martha Beard-Duncan, Jody Bishop, Lisa Blackburn, Jason Bloom, Eric Blue, Bobby Braxton, Kandice Bridges, William Brown, Eliot Burriss, Stacie Cargill, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, Walter Dean, David Dodds, Adam Dougherty, David Dummer, Paul Garrett, Megan George, Jenny Givens, Jennifer Gjesvold, Melanie Glover, James Gourley, Virginia Greenberg, Jerry Hall, Susan Halpern, William Hammel, Jeremy Hawpe, Zachary Hilton, Kelli Hinson, Zachary Hoard, Tyler Hokanson, James Holbrook III, Ezra Hood, Mary Louise Hopson, Dyan House, Mi-chael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Robert Kisselburgh, Lissa Kivett, Michelle Koledi, Susan Kravik, Shruti Krishnan, Norman Lofgren, Mallory Loudenback, Sixuan Lu, Margaret Lyle, Andrew Mayo, Ashley Mayya, Jennifer McCollum, Scott McElhaney, Elizabeth McShan, John McShane, Paige Montgomery, Nick Nelson, Yvette Ostolaza, Seth Phillips, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Robert Ramage, Gabriel Reyes, Morgan Richards, Richard Salgado, Brendan Sansivero, Brooke Schultz, Isabel Segarra, Yon Sohn, Thad Spalding, Paul K. Stafford, Jacob Stasny, Jeanette Stecker, John Stevenson, Scott Stolley, Brian Stork, Michael Sukenik, Christine Tamer, Kristopher Tate, Robert Tobey, Pryce Tucker, David Urteago, Peter S. Vogel, Suzanne Westerheim and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina Douglas Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2013. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
The
February 2013
Inaugural Sally L. Crawford of
The Inaugural of Sally L. Crawford, DBA’s 104th President, was held January 19, 2013. The evening was a stylish event, with elegantly dressed guests, a silent and live auction and a casino party and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, more than $830,000 was raised for the Dallas Volunteer Attorney Program. Congratulations to this year’s Ticket to Drive Raffle winner: David R. Wilson, who will take home a Lexus IS250.
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104th President
D al l as Bar A ssoci ati on l Headnotes 7
of the
DBA
THANK YOU JONES DAY for underwriting the
Inaugural Casino Party!
8 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2013
DBA Presents the 21st Annual MLK Justice Award The Dallas Bar Association’s Martin Luther King, Jr. Justice Award is presented to local leaders whose lives and practice exemplifies the principles embodied by Dr. King’s leadership. This year’s award was presented to Al Ellis, Of Counsel at Sommerman & Quesada, L.L.P. Since 1993, the DBA has bestowed the MLK Justice Award on deserving recipients. The luncheon on Monday, January 21, marked the DBA’s 21st Justice Award presentation.
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D al l as Bar A ssoci ati on l Headnotes 9
Business Litigation
Get Used to It: Recent Rulings Cement Arbitration Acceptance by Stephen E. Fox and Parker W. Howard
Arbitration has long been the business community’s favored dispute resolution process. As compared to the jury trial process, they see arbitration as a less expensive, quicker and more rational process to resolve disputes with customers and employees. Federal courts have long been enamored with arbitration, and Texas courts have followed the federal trend in blessing the enforcement of arbitration in a myriad of situations. This judicial trend has accelerated in the recent past in Texas courts and the U.S. Supreme Court. Texas Courts. The willingness of Texas courts to countenance resolution of disputes outside the context of a courtroom began to accelerate in 2009 and reached a fever pitch in 2012. In 2009, the Texas Supreme Court found that non-signatories to an arbitration agreement could be bound to address their grievances far from the courtroom. Specifically, in In re Labbatt Food Service, L.P), the Court held that an arbitration agreement between an employer and employee, signed before the employee’s death, was binding upon the employee’s wrongful death beneficiaries
even though they never signed the agreement. In so holding, the Court discarded years of contrary law. The Labbatt Court went on to say that though state law governs whether someone agreed to arbitrate and federal law governs the scope of the clause under the FAA, the issue is open as to whether state or federal law governs whether nonsignatories are bound by an arbitration agreement. The Court concluded that nonsignatory beneficiaries in states where wrongful death actions are derivative in nature (such as Texas) are usually bound by a decedent’s agreement. Texas courts’ enthusiasm for non-jurybased dispute resolution methods can also be seen in the world of employment disputes. In an important case from 2012, the Texas Supreme Court found that an employer’s threat to exercise its legal right to terminate an at-will employee if he refused to sign a jury waiver does not amount to coercion invalidating a jury waiver agreement. Additionally, a stand-alone arbitration agreement is still valid and not illusory even if an employer expressly retains the right to unilaterally revoke or change any employment policy (including an arbitration policy) in the company’s
Keep up with the Dallas Bar Association online:
employment manual. This is true, the Court found, even when the arbitration agreement makes no mention of a right to change its terms or of incorporating the employment manual by reference. Finally, mutual promises to submit all employment disputes to arbitration are sufficient consideration for arbitration agreements. U.S. Supreme Court. The Texas courts’ favorable view of arbitration has followed the lead of the U.S. Supreme Court, which has continued to express a highly positive vision of arbitration. For example, in 2010, the Court held that arbitrators—not judges—have the authority to determine unconscionability when the agreement expressly reserves that power to an arbitrator. In response to an employee’s discrimination lawsuit, the employer in Rent-A-Center, Inc. v. Jackson filed a motion to compel arbitration based on an arbitration agreement signed by the plaintiff as a condition of his employment. The plaintiff argued that the court, not the arbitrator, should decide the issue of unconscionability. The employer countered that the agreement expressly provided that the arbitrator, and not a court, would have “exclusive authority to resolve any dis-
pute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.” The Supreme Court sided with the employer. In November, continuing its arbitration-friendly trend, the Court reiterated the strong “national policy favoring arbitration;” that arbitrators, not federal or state courts, determine validity of an arbitration clause itself; and that the FAA will trump any state law that appears to prohibit arbitration of certain categories of claims. This decision came shortly after a February decision in which the Court rebuffed the West Virginia Supreme Court of Appeals with the supremacy of the FAA when it attempted to prohibit enforcement of pre-dispute arbitration agreements for personal injury and wrongful death cases. These rulings demonstrate that Texas courts and the U.S. Supreme Court really mean it when they say there is a strong policy in favor of arbitration and we need HN to get used to it. Stephen E. Fox is a principal and Parker W. Howard is an attorney at Fish & Richardson, PC in the Dallas office. They can be reached at sfox@fr.com and phoward@fr.com, respectively.
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2013
DBA Board Chair and Vice Chair Elected Staff Report
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Rob Crain Chair of the Board and Michael K. Hurst Vice-Chair of the Board for 2013. Mr. Crain, of Crain Lewis, LLP, is the immediate past Chair of the Campaign for Equal Access to Justice and has served as Chair of the Public Forum Committee, the Speakers Committee and was the co-founder of the DAYL Freedom Run among other activities. He is a Sustaining Life Fellow of the Dallas Bar Foundation and Board Advisor to the Tort & Insurance Practice Section, the Golf Committee and the Entertainment Committee. Additionally, Mr. Crain is a Past Director of Big Brothers Big Sisters of North Texas and serves as a Director of the Texas Trial Lawyers Association. Mr. Crain is the Immediate Past Chair of Highland Park United Methodist Church, Global Outreach Committee. Mr. Hurst, of Gruber Hurst Johansen Hail Shank LLP is the Chair of the Campaign for Equal Access to Justice and is the ViceChair of the Bylaws Committee and the Trial Skills Section. His service as a DBA Committee Chair includes Chair of the Judiciary Committee, the Law Day Committee and the Finance Committee, among others. He joined the DBA Board of Directors in1999 as President of the Dallas Association of Young Lawyers. Mr. Hurst is a Life Fellow of the Texas Bar Foundation, a Fellow of the Dallas Bar Foundation and serves as a Director and member of the Executive Com-
mittee of the South Texas College of Law. The Board also appointed Hon. King Fifer of County Court at Law No. 2 to serve as the judicial atlarge position. He is a graduate of the University of Tulsa Law School and is a past Co-Chair of the DBA’s Bench Bar Conference Committee. Judge Fifer is the Board Advisor to the Library Committee and Health Law Section. Filling a two-year at-large director position is A. Shonn Brown. Ms. Brown, a graduate of SMU Dedman School of Law, is a Partner at Gruber Hurst Johansen Hail Shank LLP where her practice focuses on commercial litigation, employment, securities and energy law. She served as the 2012 Secretary-Treasurer and has been active in numerous DBA sections and committees throughout the years. She is the Board Advisor to the Minority Participation Committee and the Franchise & Distribution Law Section and Section Board Advisor and Chair of the Pictorial Directory Committee. The 2013 board will also include: President Sally Crawford; President-Elect Scott McElhaney; First Vice President Brad Weber; Second Vice President Jerry Alexander; Secretary-Treasurer John A. Goren; Immediate Past President Paul K. Stafford; and Directors Wm. Frank Carroll, Laura Benitez Geisler, Hon. Martin Hoffman, Michele Wong Krause, Angelina LaPenotiere, Karen McCloud, Christina McCracken, Mandy Price, Sarah Rogers, Mary Scott, Scott Stolley, Diane Sumoski, Robert Tobey, Aaron Tobin and HN Jennifer Wang.
Rob Crain, Chair
Michael K. Hurst, Vice Chair
Hon. King Fifer, Judicial at-large
A. Shonn Brown, at-large
Professionalism Tip “A soft answer turneth away wrath but a hard word stirs up anger.” Proverbs 15:1. When your heart is pounding in the heat of battle remember that fights between counsel usually increase the cost of litigation without changing the outcome, and it is our client, not our ego, that we are fighting for. Provided by the DBA Legal Ethics Committee
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Dal l as Bar A ssoci ati on l Headnotes 11
Business Litigation
Pitfalls of Incorporating Online Terms Into Printed Contracts By Andrew Wallace and Christopher Norcross
The nexus between the physical world and digital space is becoming increasingly stronger and more complex. A relatively recent development in the ever-deepening interrelationship between the two spheres is the use by businesses of a hybrid contractual model that combines printed agreements with terms and conditions (terms) posted online. For various reasons, including the desire to provide uniformity of contractual terms, reduce costs and eliminate waste, businesses are posting standard terms on their website and incorporating them by reference into printed contracts, rather than providing a separate paper copy of the terms and conditions. As these hybrid agreements become increasingly common, they are proving to be fertile ground for disputes. Some of the potential pitfalls inherent in the hybrid contractual model can be avoided by adhering to traditional, well-defined principles of contract law. The trend is for courts to enforce the terms posted on a company’s website that are incorporated by reference into a written agreement. For example, in Pentecostal v. Streaming Faith, LLC, a Pennsylvania district court found that a church, which contracted with an internet technology service provider to stream the church’s services on the Internet, was constrained to prosecute its lawsuit in a particular state by a forum selection clause posted on the company’s website and incorporated by reference into the purchase order executed by both parties. Likewise, in Beacon v. Crowley Marine Services, the Fifth Circuit Court of Appeals held that a contractor, who was engaged by a barge owner to repair a barge, was obligated to indemnify the barge owner against the contractor’s negli-
*
gence by the terms and conditions posted on the barge owner’s website and incorporated by reference into the repair service order that governed the scope of the contractor’s work. Courts utilize traditional principles of contract law when considering enforceability of terms posted on a company’s website and incorporated by reference into written contracts,. Specifically, where a contract expressly refers to and incorporates another instrument in specific terms that show a clear intent to incorporate that instrument into the contract, both instruments are to construed together. Moreover, the primary consideration when determining the validity of contractual terms is whether the party to be bound has reasonable notice of the terms at issue and whether the party manifests assent to those terms. This is particularly true where the contractual terms involve indemnity to a party for damages caused by its own negligence. In such instances, the provisions granting indemnity must be specific and conspicuous. Applying these general contract principles, the courts in Pentecostal and Beacon held that the online terms and conditions were intended to be incorporated into the written agreements and, further, that the references to the URL address, which identified where the terms were located, provided adequate notice of, and opportunity to review, them. In support of the holdings, the courts pointed to the fact that the language incorporating the online terms was prominently placed on the face of the written documents in all capital letters and that the written documents clearly referenced a particular document on the companies’ websites containing the terms and conditions. Additionally, the courts indicated that the websites were easily navigated, such that a reasonable person would have
been able to find the terms and conditions. Once there, the court in Beacon found that the indemnity provision was sufficiently clear and conspicuous to be enforceable. In evaluating whether to enforce terms and conditions that are incorporated by reference into an agreement, even when the terms and conditions are only available on a company’s website, the Pentecostal and Beacon decisions demonstrate that courts must continue to look to traditional contractual principles, such as notice, assent and custom, as guideposts. In order to increase the likelihood that a party’s online terms and conditions are properly incorporated into a written construction contract, the following conventions should be adopted: (1) the inclusion of
a party’s online terms and conditions should be noted in clear, specific, and conspicuous language, similar to that required to disclaim one’s own negligence; (2) the location of the terms and conditions should be clearly delineated, such that a reasonably literate Internet-user can find the information; and (3) the other party’s assent to be bound by the online terms and conditions should be manifested either in the written document or by electronically signing the webpage that con HN tains the information. Andrew Wallace is a partner at Gordon & Rees LLP and can be reached at awallace@gordonrees.com. Christopher Norcross is a law student at Texas Wesleyan School of Law and can be reached at csnorcross@yahoo.com.
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2013
Lessons in Humility and Managing Expectations by James Ray
“Congratulations, your first job here is to earn the respect of those around you.” I’ll never forget those words. They were spoken to me shortly after making the football team at the University of Texas at Austin by Duane Akina, defensive back coach and one of the toughest, most tenacious and well-respected individuals I have ever known. It was immediately clear that, as a walk-on, respect did not come as a matter of right. It had to be earned. The way to earn that respect was to know your role and do your best in that role to help the team win. Earning the respect of peers, colleagues, co-workers and friends is also my goal as a new lawyer. Thankfully, I have some experience as the low person on the totem pole in a hyper-competitive environment where everyone is talented, motivated and fearless. We all have our reasons for becoming lawyers. Not once, however, have I heard someone say “I love reviewing documents. I’m going to law school to make that dream a reality!” Most of us, I think, visualize making a difference by passionately arguing before the Supreme Court, delivering a profound closing argument filled with drama, or
looking someone in the eyes and letting them know that you will fight like crazy to help them through life’s most difficult circumstances. Apparently, those privileges do not fall out of the sky the day you earn your law license. Hopefully, they will come after putting in the time, hard work and dedication necessary to earn the respect and trust of those around you. Much like a walk-on spends many practices on the scout team without seeing the field, the young lawyer may also spend hours, days and weeks reviewing documents, putting together trial binders and researching discrete issues—for which there may be no answer—all without ever meeting a client or appearing in court. Self-sacrifice and patience with a focus on being part of something greater than yourself were essential to survive as a walk-on. For the lawyer, providing the best legal representation for each and every client must be of paramount importance, irrespective of personal ego. Every day at practice we were told by our coaches to ask ourselves “How can I help the team win?” One of our roles was to help make our teammates better tacklers through a drill called “the pits.” Always a tacklee and never a tackler, the walk-on would line up
20 feet away from the tackler and each player would run full speed at one another leading to a serious collision, popping pads, mild concussions, etc. As much fun as it was to go toe-to-toe on a daily basis with athletes that were all bigger, faster and stronger than us, the reward and personal satisfaction came in knowing that we were doing our part to help the team win. I have yet to see two associates sprinting at each other in the hallways, but there are other important (and less painful) roles young lawyers can play. It may not be delivering the game changing cross examination in the trial of the century, but well-researched and reasoned memoranda can be just as crucial to victory. I practiced for several years before finally getting playing time my senior year. In my senior year, however, I was part of a team that won a national championship. That experience taught me that you do not need to be in the spotlight or receive constant adulation to feel a sense of pride about your work. Back then, our coaches and teammates helped us realize that any
contribution to the team effort, no matter how big or small, is meaningful. Today, we look to more experienced lawyers to play the coach’s role and provide advice and examples of how to practice. Ultimately, nothing else matters if we do not enjoy what we do. The weekly exhilaration of 100,000+ cheering fans made it easy to appreciate the privilege we had earned as walk-ons. It is probable that no one will run into our offices screaming, wearing face-paint and starting the wave when we draft our next memo or motion. Confetti canons will not fire off when our clients win a judgment or close a huge deal. The reward will come in knowing that someone respects and trusts us enough to ask for our help with protecting their business, their livelihood and their family. That is a privilege to treasure and to get HN excited about. James Ray, an associate at Munsch, Hardt, Kopf, and Harr, P.C., practices general commercial litigation with an emphasis on energy and environmental issues, business disputes and complex commercial matters. He can be reached at jray@munsch.com
High School Mock Trial Competition – Judges Needed! Help judge the Texas High School Mock Trial Competitions this January, February and March 2013! A variety of dates and times are available. Teams are from Dallas ISD, Region 10 and across the State. Earn self-study CLE credit. For more details, visit www.dallasbar.org/mocktrialjudges or contact asmith@dallasbar.org
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Dal l as Bar A ssoci ati on l Headnotes 13
Business Litigation
The Rise of Reasonableness? Take Advantage of E-Discovery Reform by Jane Ann R. Neiswender
As email and other forms of electronic communication became widespread, so did the cost and burden of producing these communications. Parties exploited e-discovery, demanding extensive preservation and production of this electronic information. Indeed, many cases settled because the cost of producing this “e-discovery” far exceeded settlement costs. Yet, only a miniscule fraction of the information collected, processed, reviewed and produced (at a very high cost) ever finds its way onto an exhibit list, and still fewer documents are presented as evidence at trial. This is particularly true in patent litigation and other complex, commercial disputes. In an effort to curtail these high discovery costs, and to help ensure parties are not financially precluded from their day in court, courts are beginning to take steps toward a more reasonable approach to e-discovery. Since the e-discovery amendments to the Federal Rules of Civil Procedure, the Seventh Circuit and many district courts have implemented e-discovery pilot programs or local rules designed to assist parties grappling with preservation and production of e-discovery. The Federal Circuit took aim at reducing the costs associated with e-discovery in the fall of 2011 when it unveiled its Model Order Regarding E-discovery in Patent Cases (Model Order). The Model Order sets forth guidelines designed to reduce the burdens associated with producing electronically stored information so that parties can get to court to resolve the merits of their disputes. Gone are parties’ ability
to make unlimited production requests for email. Instead, to the extent a party seeks email discovery, it must present a separate production request, subject to certain limitations. For example, the requested email may be sought from no more than five document custodians. Only five search terms per custodian, per party are permitted. Also eliminated is the need to restore backup data or to preserve or collect voicemail and mobile device data (unless good cause is shown). After the Federal Circuit released its Model Order, other federal courts incorporated the concepts of the Model Order into their local rules or scheduling orders. Magistrate Judge Grewal of the Northern District of California was one of the first judges to adopt the Model Order. Subsequently, both the Eastern District of Texas and the District of Delaware amended their local rules to implement modified forms of the Model Order. Some of the differences between these local rules and the Model Order relate to the permissible number of email custodians and search terms. The Eastern District of Texas permits discovery of email from eight custodians with ten permitted search terms per custodian after an exchange of a specific listing of likely email custodians and a specific identification of the fifteen most significant listed email custodians. The District of Delaware requires parties to identify ten custodians (ranked from most to least) likely to have discoverable information. If a responding party plans to use search terms to identify the requested electronic information, then the requesting party may ask that up to an addi-
tional 10, focused search terms be used in the search. The Court of Federal Claims has also implemented the concepts in its Model Order.. This variety of approaches spawned from the Federal Circuit’s Model Order increases the parties’ ability to craft reasonable e-discovery parameters tailored for the issues involved in particular litigation. Indeed, while the Model Order applies to patent cases, its tenets are easily adaptable to any complex commercial litigation. Federal courts have the inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S.
248, 254 (1936). Accordingly, parties engaged in complex litigation seeking manageable limitations on e-discovery now have authority to support a pared down discovery approach that limits their need to preserve, collect, and produce electronic data. To capitalize on (or even broaden) this trend, parties should discuss limitations during the initial Rule 26(f) scheduling conference and include proposed limitations in scheduling orders submitted to HN the court. Jane Ann R. Neiswender, a partner at Munck Wilson Mandala, LLP, handles intellectual property and complex commercial litigation. Ms. Neiswender may be reached at jneiswender@munckwilson.com.
Estate, Trust and Guardianship Litigation
evolution
noun - the gradual directional change especially one leading to a more advanced or complex form; growth; development.
Since 1999, Don Ford and Ford+Mathiason LLP have served clients throughout Texas with complex estate, trust, and guardianship litigation needs. More recently, those cases have involved significant commercial and oil & gas issues, requiring expertise in those areas. As the needs of our clients have evolved, the firm has called on the extensive expertise of Mr. Ford’s long-time colleague Richard F. Bergner in addressing commercial and oil & gas issues. Although our focus remains on estate, trust, and guardianship litigation cases, we appreciate the changing needs of our clients and the ability to offer them more comprehensive services. As a
Ford+Bergner LLP
result, we are pleased to announce the firm’s new strategic partnership with Richard F. Bergner and the re-naming of the firm to Ford+Bergner LLP. Don D. Ford III | Managing Partner Board Certified in Estate Planning and Probate
5151 San Felipe • Suite 1950 Houston, TX 77056 T: 713.260.3926 • F: 713.260.3903
Richard F. Bergner | Partner
901 Main St. • Suite 6300 Dallas, TX 75202 T: 214.389.0887 • F: 214.389.0888
Ford Bergner LLP
Ford+Bergner LLP
www.fordbergner.com Ford+Bergner Headnotes Ad.indd 1
1/9/13 4:00 PM
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2013
Municipal Courts & Traffic Tickets by Chase Griffth and Rachel Lindsay
Almost every lawyer has been asked to give advice on how to handle traffic and city ordinance citations. Whether the requestor is your neighbor with the lead foot, your brother who cannot keep his yard trimmed or an under-21 nephew that enjoys cold beer, most people expect attorneys to have a working knowledge of the municipal court system. The Texas Legislature has created municipal courts in each of the incorporated cities of the State. Municipal courts operate in more than 900 cities and towns. These courts have original and exclusive jurisdiction over violations of city ordinances and have concurrent jurisdiction with justice of the peace courts over Class C misdemeanor criminal cases. Municipal judges may also issue search or arrest warrants. These courts also have limited civil jurisdiction in cases involving dangerous dogs. Municipal courts are required to have an attorney authorized by state law to prosecute. This article will provide information you can use to give your ticketed associates a simple way to maneuver through municipal court by explaining the options available to them.
Deferred Disposition
Deferred disposition is a suspended sentence. On your plea of guilty or no contest, the court will defer acceptance of the plea, assess costs, order the accused to post a non-refundable bond and comply with certain conditions. If the terms are successfully completed, then the case will be dismissed. If the terms are not completed, then a judgment will most likely be imposed and a conviction will be reported to Texas Department of Public Safety. Deferred disposition is avail-
able for most traffic offenses. It is not available for the following, among others: • Commercial Driver’s License holders • Committing an offense in a construction zone when workers are present
Driver Safety Course (DSC)
There are two types of DSC’s, mandatory and discretionary. If the accused is under the age of 25 and commits a moving violation, then that person must take a DSC (mandatory). If an otherwise eligible driver is at least 25 years old they have the right to take a DSC (discretionary) if they violated the traffic offenses found in Subtitle C, Title 7 of the Texas Transportation Code (the “Rules of the Road”). Certain citations and offenders are not eligible for DSC. These include: • Commercial Driver’s License holders • Speeding 25 mph or more over the posted speed limit • Committing a serious traffic violation • Committing an offense in a construction zone when workers are present • Committing an offense while the accused did not have a valid Texas Driver’s License
Trials
When an individual attends a pretrial hearing to discuss a traffic ticket, the accused has a choice between one of two options: (1) Making a plea with the court and choosing one of the foregoing options offered to the individual by the prosecutor or (2) setting the case for trial. Should an individual contest the citation and opt for trial, the person will decide between a trial by judge or a trial by jury. Trial by Judge. The case will be heard by the judge only. Both the prosecution and the defense will have the
opportunity to present their cases by calling witnesses and introducing evidence into trial. The Texas Rules of Evidence and Texas Rules of Criminal Procedure are applicable at trial. At the close of the case, the judge will issue a verdict. If found not guilty, the defendant will not be responsible for any court costs or fines and the ticket will not be reflected on the defendant’s driving record. If found guilty, the defendant will be responsible for the court costs, a fine applied by the judge and the conviction will stay on the defendant’s driving record. Trial by Jury. The case will be heard by a six-panel jury. The parties will have the opportunity to present their cases by introducing evidence as explained above. At the close of the case, the jury will be issued a charge. The jury verdict must be unanimous An acquittal or conviction is handled as explained above.
Appeals
If the defendant is found to be
guilty, the defendant has the option of appealing the conviction to a county court at law. Most municipal courts are not courts of record. This means the appeal is trial de novo. Some municipal courts are courts of record, and an appeal from a court of record is not de novo. Each appeal is determined on the basis of the errors set forth in the appellant’s motion that are presented in the transcript and statement of facts prepared from the proceedings leading to the conviction.
Conclusion
While fighting a ticket in court is never an enjoyable experience, this article hopefully eliminates and explains some of the frustrating and unfamiliar territory found in the municipal court system by providing easy and straightforward options to utilize in municipal HN court.
Chase Griffth and Rachel Lindsay are associates at Brown & Hofmeister, L.L.P. They can be reached at cgriffith@bhlaw. net and rlindsay@bhlaw.net, respectively.
DVAP’s Finest Jarom Yates
Jarom Yates is an associate in the Bankruptcy and Business Restructuring Practice Group at Haynes and Boone, LLP. One of the highlights of Jarom’s legal career has been pro bono work. While he enjoys representing corporate clients in the course of his normal practice, he finds that DVAP provides an excellent opportunity to assist individuals as they confront difficult legal and personal challenges. Because he speaks Spanish, most of the pro bono cases he accepts involve Spanish-speaking clients. Jarom has also found DVAP cases to be a valuable way to gain courtroom experience. He has conducted two trials in the Small Claims Court on behalf of pro bono clients. In the first case, he represented the client in a contract dispute with a contractor. At trial, the judge ended up holding that the client was not required to pay the remaining portion of the contract funds. In the second case, Jarom represented the client in a lawsuit against a mechanic whom he hired to repair his car. After the repairs were concluded, the car lit on fire during the client’s test drive. After a trial in the Small Claims Court, the Court awarded the client $2,075. Last year, Jarom represented a pro bono client in an appeal from a trial in the Small Claims Court. The appeal resulted in a day and a half trial in County Court. After presenting the evidence, the parties entered into a settlement in which his client was released from all claims and was awarded a judgment. Jarom has also handled other contract disputes, a divorce case and a guardianship of a disabled child. Thank you for all you do, Jarom!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
F e bru a ry 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Business Litigation
Texas Anti-SLAPP Law: New Procedure Allows for Early Dismissal by Leslie P. Fisher
On June 17, 2011, Texas joined 29 other states in adopting what are memorably referred to as “anti-SLAPP” statutes, or “strategic lawsuits against public participation.” The laws provide a procedure to counter meritless lawsuits filed by plaintiffs who attempt to silence their critics’ protected First Amendment rights. SLAPP plaintiffs file lawsuits with no expectation of winning; rather, the goal is to eventually silence the defendant’s speech or other protected activity with overwhelming legal fees and burdensome discovery and paperwork. The Anti-SLAPP jurisdictions are inconsistent in the protection schemes afforded to litigants, with some allowing for dismissal only under limited circumstances. On the other hand, the Texas Citizens Participation Act (TCPA) is among the broadest. It allows a movant (usually the defendant) to seek dismissal of the non-movant’s (usually the plaintiff’s) “legal action [that] is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” All of these concepts are broadly defined. For example, the “exercise of the right to petition” includes “any…communication that falls within the protection of the right to petition government under the Constitu-
tion of the United States or the constitution of this state.” Notwithstanding the statute’s broad application, there are three general categories of exempt actions: government enforcement actions; suits for bodily injury, wrongful death, or survival; and actions brought against “a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” A motion to dismiss under the TCPA must be brought within 60 days after the date of service of the legal action, although the court may extend the time to file the motion on a showing of good cause. A hearing on the motion must be set within 30 days after the date of service, “unless the docket conditions of the court require a later hearing.” There is no provision in the statute to delay the hearing for good cause or on leave of court. The filing stays discovery until the court rules on the motion to dismiss. But the trial court may, on motion of the parties on a showing of good cause or sua sponte, allow “specified and limited discovery” relevant to the motion to dismiss. At the hearing, the court considers the
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pleadings and supporting and opposing affidavits. If the defendant establishes by a preponderance of the evidence that the plaintiff’s legal action is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association,” the burden shifts to the plaintiff to establish by “clear and specific evidence a prima facie case” for each essential element of its claim. “Clear and specific evidence” is undefined in the TCPA and without precedent in Texas law. Legislative history suggests it was derived from the standard used in “reporter’s privilege” cases, in which situations it falls in significance somewhere between preponderance of the evidence and clear and convincing evidence. However, the courts have yet to issue guidance on this burden of proof in the TCPA setting. If the plaintiff fails to prove by clear and specific evidence each essential element of its claim, the trial court has no discretion but to
dismiss the legal action brought against the defendant. The TCPA also mandates that the trial court shall award to the defendant both attorneys’ fees, costs, and other expenses and sanctions against the plaintiff. The largest known sanctions to date—$15,000, and $15,000 in attorneys’ fees—were awarded by a Dallas judge in April 2012 in the case of a homeowner sued by his mortgage company for comments critical of its services that he posted on the Internet. Finally, if the court fails to rule on the motion within thirty days after the hearing, the moving party may appeal as the motion is considered to have been denied by operation of law. The scope of TCPA appeals is currently under review by the courts, notably in Jennings v. Wallbuilder Presentations, Inc., HN 378 S.W.3d 519. Leslie P. Fisher is a commercial litigation associate at Greenberg Traurig, LLP and a Vice Chair of the DBA Pro Bono Activities Committee. She can be reached at fisherl@gtlaw.com.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2013
Column Business of Law
Asking About Client Needs and Solving Problems by Mary Louise Hopson
Mike Hainsfurther joined Munsch Hardt Kopf & Harr, P. C. four years after the firm was founded. Created in 1985 by six lawyers, the firm, which has a website with a tagline of “staying ahead of the curve,” has grown to more than 100 lawyers in three offices. A past Chair of the DBA Securities Section, Mr. Hainsfurther represents companies in mergers, acquisitions, reorganizations and restructuring for both public and private companies. He feels strongly that a lawyer has to be there for clients, be ready to help, and to ask the right questions. We have all heard the axiom, “Clients don’t care how much you know until they know how much you care,” and Mr. Hainsfurther believes strongly in that approach. “Lawyers have gone to school, are talented and are ready to show how smart they are,” he said. “‘Here’s who I am and what I do,’ they are ready to say. That’s the opposite of what they should be doing. The lawyer needs to ask what the client needs and what issues concern them. After learning that information, the lawyer is able to provide a valuable service and make a connection with the client. This is
different from selling, which is getting the client to buy something that they don’t need. This caring attitude and putting the focus on the client is particularly important for lawyers with 4-10 years of experience, because they are asked often to help bring business to the firm.” “Most clients already assume you have the technical knowledge,” Mr. Hainsfurther added. “You need to apply that knowledge to the client’s needs, often right then, to be effective. When a client has a problem, it’s a big problem. We help clients solve their problems. Knowing about the client and the company is a key to being successful.” Mr. Hainsfurther offered a useful tool from Bryan Flanagan, president of locally based Flanagan Training Group and a veteran marketing and communications expert who works with lawyers and other professionals. Known by the acronym “POGO,” which stands for Person, Organization, Goals and Obstacles, it serves as a guide for how a lawyer can learn information about the client that will help solve a problem and deliver a good solution. We contacted Mr. Flanagan to learn more, and he talked about the challenges lawyers
and other professionals have with promoting their skills. The key, he said, echoing Mr. Hainsfurther, is to learn to get away from leading off with information about the law firm and focus instead on leading with the needs of the client. To get there, a lawyer needs to be able to ask questions. “You capture more clients solving their problems than you do selling or marketing your law firm,” said Mr. Flanagan. “Through POGO questions, you start to find out the potential client’s needs, and also start to get a profile.” With Mr. Hainsfurther’s practice, being accessible also is crucial. “In my work, I sell companies, a big event in a client’s life,” he explained. I have to be available to clients no matter my personal schedule, which creates an environment where there are personal sacrifices. It can be a 24-hour- a-day job.” “That’s my approach to practicing law,” he added. “There are lots of different ways to practice, depending on the lawyer. There’s a spectrum. At one end, it’s being available 24 hours a day. At the other end, a lawyer can put a finite box around availability.” He added that different areas of practice necessitate differing levels of availability at different times. For example, the transactional practice uses holidays and the year end as arti-
ficial deadlines to get things finished. Other practices depend on government agencies or the courts being open, and many of those offices close down during holidays. Lawyers practicing in the areas of wills, estate planning and probate may not need to be as readily available and may not have to provide a quick turnaround on every project. “Each individual lawyer can tailor his or her practice to client needs and personal priorities,” Mr. Hainsfurther added. If you have seen the recently released Clint Eastwood movie “It’s About the Curve,” you have watched a lawyer struggle with the balance of professional and personal life. We don’t want to give the story away in case you haven’t seen it, but we see in the movie that the lawyer, after much angst, works out her own arrangement about being available to bosses and clients, and how she wants to spend her time as a lawyer. She makes a choice that she sees as the best for herself, and she remains a good lawyer who meets HN the needs of her clients. Next issue: Women Rainmakers Marketing veteran Mary Louise Hopson is a longtime member of the Publications Committee and writes this occasional column about the business side of law practice. She can be reached at mlhops@sbcglobal.net.
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Dal l as Bar A ssoci ati on l Headnotes 17
DBA Loses Past President Robert A. Gwinn The Dallas Bar Association lost its 75th president on January 17, 2013. Robert A. Gwinn was born on January 1, 1928, in Dallas and graduated from Woodrow Wilson High School. He then attended SMU as an undergraduate and continued on to study law. He was in his second year of law school when he left to serve in the Korean War as a Navy pilot. After the war, he returned to SMU and in 1954 completed his law degree. After many years with Seay, Gwinn, Crawford, Mebus and Blakeney, he founded the firm of Gwinn & Roby. Board Certified in numerous areas of law, including Civil Trial Law and Labor
Focus
Law, Mr. Gwinn’s extensive legal career focused on insurance defense, particularly in the fields of medicine and aviation. During his year as the Dallas Bar Association’s President, the association had a membership of 4,800. Under his leadership, 1984 was a year of giving back to the community Robert Gwinn and the legal profession. Mr. Gwinn’s focus was on the still-new pro bono initiatives of the Dallas Bar Association and the development of “modern court facilities” in the criminal justice courthouse, which he believed
were needed to adequately serve the needs of the Dallas community. He also served as chair of the original steering committee of the first Conference of the Professions. Board members in 1984 included Douglas Lang, Harriet Miers and Vincent Perini. Mr. Gwinn was recognized by the Dallas Bar Association as the Pro Bono Attorney of the Year in 1984 and as Trial Lawyer of the Year in 2008. He was recognized as a Distinguished Alumnus of the SMU Dedman School of Law in 2009.
In addition to his DBA service, Mr. Gwinn served as a member of the ABA House of Delegates for numerous years. He was also active in the community, serving on the vestries of the Church of the Resurrection and Christ Church in Plano. A long-time supporter of SMU, he created and taught a class at the SMU Dedman School of Law on the subject of Aviation Law. Mr. Gwinn is survived by his wife of over 50 years, Marianne, three sons Robert Gwinn, Jr. and wife Terri; Daniel Lee Gwinn and Stephen Gwinn and wife Tina; and six grandchildren. In lieu of flowers, the family requests that memorials be made to the Museum of Biblical HN Art in Dallas.
Business Litigation
Settlement Negotiations as Evidence at Trial: Pitfalls of Rule 408 by Worthy Walker and Sara Krumholz
Many lawyers believe that statements made during settlement negotiations will never come back to haunt them at trial. Relying on a bloated application of Rule of Evidence 408, they contend all settlement communications and negotiations are excluded from evidence. But are they really? A common misconception exists that Rule of Evidence 408 (Texas and federal) absolutely prohibits the use of settlement negotiations as evidence at trial. Actually, the rule only excludes negotiations and offers to compromise from evidence if they are used to prove liability or the validity or amount of a claim. Rule 408 does not require the exclusion of any evidence simply because it is presented in the course of settlement discussions. There are many instances when settle-
ment communications and offers to compromise are admissible in trial and many can be very harmful to a case. For example, any statement or conduct made by counsel during settlement negotiations that does not directly relate to the compromise negotiations could be admissible against a client. For this reason, it is critical that a lawyer not get too relaxed in settlement discussions and make concessions or any admissions of weakness in a case. This could be especially dangerous in a complex case where a party may be negotiating to settle only part of the claims asserted or settle with only certain parties. Rule 408 specifically provides that settlement negotiations may be admissible to prove bias, which is why “Mary Carter” agreements are admissible evidence. Rule 408 further provides that settlement negotiations are admissible to prove prejudice or to explain or excuse allegations of undue
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delay. And the exceptions do not end there. It is also clear that Rule 408 does not exclude settlement negotiations when they are used to show notice of a claim, waiver of notice of a claim or to rebut claims of lack of notice, such as when a default judgment is challenged. Settlement negotiations have also been considered by courts when deciding a reasonable fee award. And settlement demands could be used to show “presentment” in connection with a claim for attorneys’ fees. A court may also consider what the plaintiff requested during settlement as compared to what was actually awarded as one indicator of the success of a case. Courts have discretion to admit evidence of letters containing settlement negotiations for the purpose of showing a party’s understanding of its obligations under an agreement and to show that a demand for payment had been made. This exception also allows a party to show a jury when the opposing side failed to respond to reasonable demands or to negotiate at all. Evidence of offers and settlement conduct may be critical in a case involving sanctions or bad faith conduct. Misrepresentations made or repeated by parties in negotiations, or a party’s state of mind created by a misrepresentation, can be admissible evidence. Similarly, Rule 408 will not protect fraudulent conduct that took place during settlement negotiations from disclosure in court, and evidence of misrepresentations made during settlement negotiations could be used to show a con-
Has danger struck?
Worthy Walker is a partner at Elrod, PLLC that handles commercial and energy litigation. He can be reached at wwalker@elrodtrial.com. Sara Krumholz is an associate at Elrod, PLLC that handles commercial and energy litigation. She can be reached at skrumholz@elrodtrial.com.
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tinuing course of fraudulent conduct. In applying Rule 408, some courts have even limited what they consider settlement negotiations at all. For instance, a court has allowed evidence of a defendant’s statement that it will institute bankruptcy proceedings if the plaintiff did not accept a specified sum, finding the statement to be more of an “ultimatum” than a bona fide offer. It is also important to consider that while Rule 408 does offer some protection against the admissibility of settlement negotiations at trial, this protection is not necessarily extended to discovery. As a result, a party may be able to discover material and statements made during earlier settlements and this could lead to the discovery of other related, admissible evidence against a client. Ultimately, the burden is on the party objecting to evidence under Rule 408 to show that the evidence was part of settlement discussions and is not admissible for another purpose. And failure to object at trial will most likely fail to preserve error on appeal. Rule 408 does provide some level of protection for settlement negotiations, but attorneys should tread carefully because information exchanged during settlement negotiations could still be brought before a HN jury.
Shield yourself.
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
In the News
February
FROM THE DAIS
Darin M. Klemchuk, of Klemchuk Kubasta LLP, moderated a panel discussion on the Rosetta Stone v. Google Case during the American Bar Association (ABA) IP Roundtable held in Dallas. Bill Mateja, of Fish & Richardson P.C., was mediator at the ABA Seventh Annual National Institute on Securities Fraud in New Orleans. Mike Farris, of Vincent Lopez Serafino Jenevein P.C., taught workshops and led seminars at the La Jolla Writers Conference in San Diego, CA. Carol A. Wilson, of The Law Office of Carol A. Wilson, spoke at the 2012 Texas Society of CPAs CPE Expo Conference in San Antonio, Arlington and Houston.
KUDOS
Kevin Sullivan, of Winstead PC, has been selected to join the Best Lawyers Advisory Board. Jeffrey Leach, of Looper, Reed & McGraw, P.C., has been elected to the Texas House of Representatives in District 67. Joseph Nelson, of the firm has been named Shareholder and elected to the firm’s Board of Directors. Former Judge Marilea Lewis has been promoted to Name Shareholder and Executive Vice President at the newly renamed law firm Godwin Lewis PC. Robert Wiegand, of the firm, has been promoted to Managing Shareholder. Jenny Martinez has been named Secretary/Treasurer of the firm. Timothy Alford and W. Ira Bowman have been promoted to Shareholders. Craig W. Weinlein, of Carrington, Coleman, Sloman & Blumenthal, L.L.P., has
published a book titled “The Art of Witness Preparation: How to Prepare Your Witnesses to Testify Effectively at Civil Trials, Hearings and Depositions.”
Edward F. Berbarie, of Littler Mendelson, P.C. has been promoted to Shareholder.
ON THE MOVE
Glendover Professional Center, 1420 West Exchange, Suite 190, Allen, Texas, 75013. Phone (972) 829-3923.
Stephen Bartz and Matthew Harper have joined Thompson & Knight LLP as Associate and Partner, respectively.
Holly Eckert has joined McCurley Orsinger McCurley Nelson & Downing, L.L.P as Associate.
R. Brent Clifton has joined Winstead PC as Shareholder.
Christine Powers has joined Kane Russell Coleman & Logan PC as Associate.
Terrica Odum has joined Farrow-Gillespie & Heath LLP as Associate in the firm’s family law practice.
Jacob Borchers, Derek Feibel and Virginia Simms have joined Hermes Sargent Bates, LLP as Associates.
Jerry Fazio, of Owen & Fazio, PC has received the 2012 Texas Association of Defense Counsel President’s award.
Roshanak Khosravi has joined Tollefson Bradley Mitchell & Melendi, LLP as Associate.
Natasha Fedorov and Pamela Sieja have joined Burford & Ryburn, L.L.P. as Associates.
Neil J. Orleans, of Goins, Underkofler, Crawford and Langdon, has received the Distinguished Service Award from the City of Richardson as a member of the City of Richardson’s Arts Commission from 2003 through 2012.
Allison A. Jacobsen has joined the firm of Gruber Hurst Johansen Hail Shank LLP as Senior Counsel.
Scott D. Deatherage has joined Gardere Wynne Sewell LLP as Partner.
Angela Neville, a solo practitioner, won two 2012 awards from the American Society of Business Publication Editors for articles published in POWER magazine.
Natalie Gregg has expanded her office to
Scott Chase, of the Law Offices of J. Scott Chase, has been elected Chair of the Board of Directors of the Oak Cliff Chamber of Commerce for 2013. Lisa A. Genecov, of Locke Lord LLP, received the Cardozo Society Member of the Year Award from the Jewish Federation of Greater Dallas.
Justice Elizabeth Lang-Miers, of the Fifth District Court of Appeals, has been elected Chair of the Appellate Judges Conference of the American Bar Association.
Scott Conrad has joined Shackelford, Melton & McKinley, LLP as Partner.
Dallas Business Journal: DBF An Evening With Doris Kearns Goodwin Dallas Morning News: DBA Diversity Summit, Equal Access to Justice Campaign, DVAP Legal Clinics
Kamal Jafarnia, of Alston + Bird LLP, has been appointed to the Board of Directors for Ashford Hospitality Trust, Inc.
Denton Record Chronicle: DBA Diversity Summit
Lauren Farkas, Deke Owen and Ken Riney, of Hermes Sargent Bates, LLP have been elected partners.
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James M. Stanton assists businesses at all stages of litigation in federal and state court. Whether in the courtroom or at the settlement table, his experience as a state district judge and a board certified trial attorney helps his clients resolve their lawsuit so they can get back to focusing on their business. James joined Andrews Kurth following his service as presiding judge of the 134th Judicial District Court in Dallas County, Texas. During his career as a lawyer and judge, his experience includes handling over 60 jury trials, 40 bench trials, and thousands of hearings. He is board certified in Civil Trial Law by the Texas Board of Legal Specialization. His scholarly writing in the Baylor Law Review and the Thurgood Marshall Law Review has been cited by Texas appellate courts, and he speaks frequently on trial advocacy and juror and judicial decision making.
News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.
. . . . . . DBA In the News . . . . . .
During the past few months, your DBA has been highlighted in the following media:
Kelly Vickers, of Locke Lord LLP, has been promoted to Partner.
What Judges Want:
James M. Stanton, Counsel Andrews Kurth, LLP
February 2013
Ellis Receives MLK Justice Award
PRlog.com: DBA Diversity Summit, Education Symposium, Al Ellis Receives MLK Justice Award SBOT Newspaperclips.com: Scott McElhaney Elected President-Elect, DBA Diversity Summit, Al Ellis Receives MLK Justice Award
North Dallas Gazette: DBA Diversity Summit, Legalline
Texas Lawyer: Harriet Miers receives Professionalism Award; Scott McElhaney Elected President-Elect, DBA Board of Directors
OpenPR.com: DBA Diversity Summit, Al
TXA 21 TV: DVAP
Naughty or Nice?
Fe bru a ry 2 0 1 3
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
february
OFFICE SPACE
Class A Space – North Dallas. Property Tax law firm has four offices available for lease and space sharing. One partner size window office, one standard size window office, and two interior offices. Access to two conference rooms, break room, and on site gym. Phone, copier, fax, and Internet available if needed. Great location at Tollway & Frankford (17855 Dallas Parkway). All finish out new as of February 2011. Call (972) 4076508 or email Ken at bailey@txtax.com. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with accompanying mahogany secretarial carrel. All have access to three conference rooms, copier, postage meter, high speed Internet, phones and two kitchens. Receptionist services also available. Please call Brittanie at (972) 934-4100. Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. Furnished office space for rent within law firm. Great location at 9400 N. Central Expressway (Central and Park Lane). Window office plus space for an assistant. Rent includes covered parking and access to kitchen and conference rooms. Postage meter, scanner, copier, fax, phone and high speed Internet. Call (214) 365-9000 ext. 307 or email mike@mcculloughmediation.com. Office, small conference room and secretarial area facing Cole Park for $1,050.00 P/M full service. Also, large furnished office space available within small real estate law
firm located at 4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $650.00. Call (214) 520-0600.
POSITION AVAILABLE
Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Civil Trial Attorney Position: 2+ years’ minimum experience in civil law. Other requirements: Please do not be afraid to work hard. You have to be able to laugh at yourself, but never at others. Lose the ego—you’re not that special. Treat the staff like you would treat your best client. Be willing to do things our way. For goodness sake, do not throw people under the bus. The Bassett Firm provides competitive salaries and exceptional benefits. Interested applicants send resume to nmenchaca@thebassettfirm.com. Unique Law Firm Opportunity. Love practicing law but hate the administrative hassle? Want to keep more of your fee income? Bring your self-supporting client base and join a dozen first class business and family law attorneys in our Campbell Centre I offices. Be your own boss, share referrals and be more productive while we deal with the website, billing, staff, IT issues, etc. Pay your very affordable share of overhead; then take home what you earn. For more information about Palmer & Manuel contact Steve Palmer or Rebecca Manuel
WANT OUT OF JAIL? CONSTRUCTION IN ARTS DISTRICT Are you hostage to a bad deal with your off-site document
The Arts District is growing. To view construction plans and street closures, log on to: www.thedallasartsdistrict.org/news/ new-developments/construction-news
storage? Do you hate the poor, don’t care customer service? Tindall Record Storage can bail you out, save you money AND provide the service you deserve. Let Tindall Record Storage spring you loose for a storage term based on your perm-out cost with current provider. Serving the Metroplex Since1981.
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help.
Give us a call to learn more. www.
RECORD.com
Toll Free 866.429.2210
Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
at (214) 242-6444. www.pamlaw.com; spalmer@pamlaw.com. Senior Tax Associate. Bruce E. Bernstien & Associates P.C. in Dallas seeks senior tax associate, Master’s in Accounting plus CPA. Send to 10440 N. Central Expressway, #1040 Dallas, TX 75231 Attn: Bruce E. Bernstien. Prominent Dallas law firm seeks associate with top academics and a minimum of ten years plaintiffs’ complex, multi-defendant, personal injury trial experience. Candidates with proven track record and strong client relations skills preferred. Send resume in confidence to: Dallas Bar Association, Box 13–02, 2101 Ross Avenue, Dallas, Texas 75201.
POSITION WANTED
Contract Attorney Experienced, AV-rated commercial litigation attorney available on an hourly basis for research, writing, drafting motions, pleadings and briefs, discovery, and trial preparation. High quality work product for your firm with no commitment and no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
Killingsworth Aircraft Valuation Service LLC. Specializing in General Aviation. Fixed wing and Rotorcraft. Accredited by: American Society of Appraisers. Member of Forensic Expert Witness Association. www.kairvals.com, www.appraisers.org (281) 796-4812 Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over Cash. For consultation and offers please call (214) 739-0089.
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Dallas’ Premier Entertainment Source. Get the highest quality musical entertainment in Dallas for your next event. Call (214) 8848328 or email: eventservices@dallasmusicguild.com to book your solo or group musicians today. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
February 2013
Dallas
Plano
Southlake
Denton
Houston
Reputation. Resources. Results. www.koonsfuller.com
Five Offices.
One Focus.
Our Clients.
(Pictured above from left) Southlake Managing Attorney Heather King, Kevin Fuller, Denton Managing Attorney Charla H. Bradshaw, Dallas Managing Attorney Ike Vanden Eykel, Julie Crawford, Mike DeBruin, Plano Managing Attorney Rick Robertson, Aubrey Connatster
From the shareholders and everyone at KoonsFuller, P.C., we want to welcome our newest attorney to the team, Sherri Evans. Sherri’s experience and dedication will be a valuable resource for our clients. She is Board Certified in Family Law by the Texas Board of Legal Specialization, and the incoming Chair of the Family Law Section of the State Bar of Texas.
Attorney, Sherri Evans Dallas 1717 McKinney Avenue, Suite 1500 Dallas, Texas 75202
Plano 5700 West Plano Parkway, Suite 2200 Plano, Texas 75093
Southlake 181 Grand Ave, Suite 225 Southlake, Texas 76092
Denton 320 West Eagle Drive, Suite 200 Denton, Texas 76201
Houston 109 North Post Oak Lane Suite 425 Houston, Texas 77024
Divorce Child Custody Complex Property Division Visitation Issues Asset Tracing Paternity Issues Appellate Law Prenuptial Agreements
Mediation
Post-Divorce Modifications
Enforcement of Order Collaborative Law