Dallas Bar Association
HEADNOTES
Focus Health Law & Employee Benefits/Executive Compensation
July 2015 Volume 40 Number 7
Rod Phelan: Trial Lawyer of the Year by Meghan Hausler
“I would rather watch a closing argument than a Cowboys game or Duke basketball,” Rod Phelan confessed, confirming the merits of his selection as the 2015 Dallas Bar Association’s Trial Lawyer of the Year. Mr. Phelan, a partner at Baker Botts, has been practicing as a commercial trial lawyer for over 40 years, in which time he has built a reputation as a smart, tenacious and hardworking litigator who gives his all for his clients. “Rod is as deserving an honoree as there has ever been for this award,” said Tom Melsheimer, last year’s award recipient. Jim Coleman describes Mr. Phelan as both a “superb lawyer” and a “kind, good human being.” During his career, Mr. Phelan has received countless honors, including being named a “Trial Leg- Rod Phelan end” by the DBA Torts & Insurance Practice Section in 2014. He has been recognized as a Top 100 Texas Lawyer, Texas Super Lawyer and Best Lawyer in Dallas every year since each list’s inception. He has been included as one of the Best Lawyers in America every year for the past 20 years. Mr. Phelan was also profiled in Chambers USA from 2004 to 2014 and in Chambers Global from 2004 to 2005 and 2010 to 2015. He is a fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers and the International Society of Barristers. He was Dallas Chapter President of the American Board of Trial Advocates in 2010. He is also a Master in the Patrick E. Higginbotham Inn of Court. Mr. Phelan’s path to becoming a successful trial lawyer started in an unusual place—Sports Illustrated magazine. During his senior year at Vanderbilt University, Mr. Phelan contacted the magazine about a job as a “stringer,” pulling news stories off the wires and delivering them to writers. He learned that the position paid $5,000 a year. Instead of pursuing that job and a career as a journalist after graduating cum laude from Vanderbilt, Mr. Phelan went to law school at Duke University School of Law. Shortly after graduating law school cum laude, he started work at the firm now known as Carrington, Coleman, Sloman & Blumenthal—making $14,400 a year—enough to pay his $5,000 of law school debt in his first year as a lawyer. He joined Baker Botts in 1987. Since then, Mr. Phelan has never looked back. He has developed a well-rounded practice encompassing many types of litigation, including professional malpractice, intellectual property and shareholder litigation. Patrick Long describes him as both a “’big brain’ litigator who can constantly excel in analyzing and handling complex issues in commercial litigation” and a trial lawyer with “folksy charm that makes him deadly effective with jurors.” According to Mr. Long, this unique combination of talents “is why some of the best law firms in the world turn to Rod when they have been sued.” Over the years, Mr. Phelan has tried cases before judges, juries and arbitration panels. His success in all of these areas has made him known in the legal community as a fearless and well-prepared advocate. He is an “aggressive,” “tough-as-nails” litigator, according to Mr. Coleman. Mr. Melsheimer concurred,
“He strikes hard blows, but never foul ones.” George Bramblett, who litigated against Mr. Phelan in his first solo jury trial, said, “He’s fearless and thrives on difficult, complex cases. I want him on my side.” Mr. Phelan believes that in order to be a successful litigator “being competitive is first. If you don’t want to win, you won’t. And if you do, you’ll do the work it takes.” This attitude is apparent to those who know him. “He works tirelessly, and if you are with him or against him, you are likely to get emails at all hours of the day or night. . . . That kind of behavior has two different effects. When he is your opponent, you know you better pack a lunch. When he is on your side, you feel like you can’t lose,” said Mr. Melsheimer. After litigating against Mr. Phelan, Mr. Long agrees: “To make matters worse for opposing lawyers, Rod’s talent is magnified by his tireless work ethic.” Mr. Phelan recognizes several mentors for guiding him during his career. He credits Bob Blumenthal with teaching him “how to think like a lawyer.” He describes Fletcher Yarbrough as a hero. And Mr. Coleman “is in all things and in all ways inspirational.” Mr. Phelan describes his own mentoring style simply as “watch this!” He recommends that young lawyers watch and learn from the experienced attorneys they work with, as well as other members of the bar that they have an opportunity to interact with and observe. He also advises more seasoned attorneys not to hold back in their mentoring: “[T]ell them what you’re doing and why, and what they’re doing right and wrong. For me, trying to be sure to praise what’s right is the hard part.” Although Mr. Phelan has built an impressive career and a reputation amongst his peers as an outstanding litigator and advocate, he insists that his favorite trial memories are of watching others. He loves observing trials and closing arguments, and he has high praise for other members of the bar: “About 25 years ago, I nearly cried watching John Hill close in a death case. Tom Melsheimer made the best closing argument I have ever heard, for Mark Cuban in the insider trading case.” In keeping with his advice to more junior members of the bar, Mr. Phelan has gleaned useful insight from his observations of other litigators: “Roy Minton and Jim Coleman made me realize it’s OK to talk like a regular person, without big words, but with conviction. Steve Susman taught me it’s OK to look organized. And David Beck and George Bramblett made it plain that passion matters—turn it loose!” Litigators across Dallas agree that Mr. Phelan is himself worthy of the praise he so generously bestows on others. Mr. Long praised Mr. Phelan as a “unique talent.” Mr. Melsheimer noted that Rod is not only “quick on his feet and a compelling advocate” but also “writes beautifully and memorably.” Mr. Bramblett said “He’s very simply the best.” By all accounts, Mr. Phelan is an outstanding litigator and an asset to the Dallas Bar Association. Congratulations to Mr. Phelan on this well HN deserved award. Meghan Hausler is an associate at Baker & McKenzie LLP and is Co-Chair of the DBA Publications Committee. She can be contacted at meghan. hausler@bakermckenzie.com.
Inside
3 Pension Plan Buyout Offers
7 Fly Ball! ERISA and Fly Ball Communication
10 Bar None XXX: Obscenely Funny 13 A New Era of Med-Mal Arbitration?
Insights From Corporate Counsel
On May 27, the Dallas Minority Attorney Program presented “Insights from Corporate Counsel: From Developing Business to Going In-House. Panelists included (left to right) Bipasha Mukherjee, Cinemark; Alan Dorantes, AT&T; Victor Corpuz, Jackson Lewis LLP, DMAP Chair; Rudy Rodriguez, Jr., CEC Entertainment; Stephanie Zapata Moore, Luminant; and Crystal Moore, Methodist Health System.
Focus
Healthcare
Audits Conducted by Medicare by Richard Cheng
Medicare accounts for approximately 16 percent of the total federal budget. As such, regulatory scrutiny by the Centers for Medicare and Medicaid Services (CMS) has gradually increased. With datamining practices by federal auditors, it is imperative for providers (and their legal counsel) to possess a strong understanding of the different types of Medicare audits.
Additional Development Requests (ADRs)
The Medicare Administrative Contractor (MAC) is the frontline contractor in the Medicare regulatory framework. The MAC, created by the Medicare Prescription Drug Improvement and Modernization Act of 2003, is designed to process, pay and ensure accuracy of Medicare payments. MACs send ADRs to providers in order to gather information necessary to assess proper documentation associated with Medicare claims. Providers are given 45 days to respond
to the ADR, though the MAC has discretion to grant extensions for responding if “good cause” is shown. The MAC must make a payment determination within 60 days of receipt of documentation from the provider and has authority to deny payment for minor errors or omissions. The MAC is tasked with minimizing losses to the Medicare Trust Fund and to remedy issues with providers. Specifically, CMS instructs MACs to use penalties to remedy repeated infractions. As such, a provider’s compliance should include periodic audits of billing and documentation practices.
Comprehensive Error Rate Testing (CERT)
CMS uses CERTs to evaluate MACs’ processing to determine its accuracy with payment. The CERT also uses its gathered information to estimate the national Medicare fee-for-service improper payment rate. When CERTs are continued on page 9
The 2015 DBA Membership Directory is now available in print & online. Check out the directory and legal resource guide used by Dallas attorneys! To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login. To request a copy of the new directory, contact pictorial@dallasbar.org.