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