July 2009 Headnotes

Dallas Bar Association

HEADNOTES July 2009 Volume 33 Number 6

Focus Intellectual Property Law

Quest for Justice: L.A. Bedford’s Nina Cortell Named Career & Strive for Equal Rights DBA’s Outstanding Lawyer of the Year

by Heather Bailey New

T

he Dallas Bar Association has chosen appellate specialist Nina Cortell to receive the Outstanding Lawyer of the Year Award.

The award will be presented at the Bench Bar Conference in September at the Horseshoe Bay Resort Marriott.

A first-generation American, Ms. Cortell was born and raised in Dallas, where her parents met after fleeing Germany during World War II. She cites her parents’ experiences in Nazi Germany and the loss of family members in the Holocaust as profoundly influencing her life and as the basis for her deep appreciation of the American Nina Cortell justice system.

Ms. Cortell attended Dallas ISD schools and remains a true advocate for public education. She earned undergraduate and law degrees from the University of Texas at Austin.

In 1976, Ms. Cortell became the first female lawyer at Haynes and Boone, which then had only 12 lawyers. George Bramblett, one of her partners, recalls that “even as a young lawyer, she was a brilliant writer and speaker, and her commitment to excellence in her work was unparalleled.”

Ms. Cortell helped pioneer the appellate practice as a specialty in Texas, establishing the Haynes and Boone appellate section in the late 1980s and building that section to 19 full-time practitioners.

“Nina Cortell is not just a well-respected lawyer and a zealous advocate for her clients, but she has been a shining example to many lawyers – including myself,” DBA President Christina Melton Crain said. “She is adept at handling complex matters and always portrays a unique finesse. We admire her commitment to professionalism and involvement in the legal community, but we honor her also for her willingness to mentor young lawyers throughout her career.”

Ms. Cortell’s professional career has been marked by landmark victories and delighted clients. Ms. Cortell helped obtain a ruling from the Texas Supreme Court overhauling the Texas public school finance system, persuaded the trial and appellate courts to allow Continental Airlines to fly out of Love Field, and helped Burlington Northern and Santa Fe Railway secure a train route in Houston. see Bench, page 11

tion of descendant Louis A. Bedford Jr. into one of the most respected and prominent attorneys the profession uest for Justice: Louis A. Bedford, Jr. and the Struggle has ever known.

The harsh realities of city life in the segregated Dalfor Equal Rights in Texas is as much a biography las of the first-half of the 20th century are discussed in about Hon. Louis A. Bedford as it is a tutorial informative detail – as well as the vibrancy of Dallas’s on the advent of African-American attorneys in African-American enclaves, particularly the Thomasthe nation, the state, and particularly Dallas.

Hall-State area where young Louis A. BedThis project began several years ago ford Jr. was reared. From this period grew under the guidance of Hon. Elizabeth Langprominent names and dynamic personMiers, justice of the Court of Appeals for alities that elicit recollections not only the Fifth District of Texas, and was made of familiar Dallas street names and landpossible largely by a grant from the Dalmarks, but also conjure images of men and las Bar Foundation. The extensive work women committed to just causes – armed and research of author and SMU Professor with conviction, steadied by courage, and Emeritus Darwin Payne were reviewed by committed to change. a DBF editorial committee, of which I and This environment – and the personalities several others served as members. and experiences that constituted it – had a Quest speaks of Macon Bolling Allen, lasting influence upon young Louis. As Quest the nation’s earliest known black attorney states, “[A]s he grew older and learned more (admitted to practice law in Maine in 1844), Louis A. Bedford Jr. about the community around him, Bedford as well as John Mercer Langston, the first became aware of the discrimination awaiting him as an black applicant to an American law school. It provides well-researched speculation as to the identity of the adult.” This discrimination was particularly evident in the first African-American to practice law in Texas, Allen Dallas justice system, which, as Quest accurately recounts, W. Wilder, as well as the first two African-Americans was the source of many injustices against African-Amerto practice law in Dallas – Sam H. Scott and Joseph E. ican litigants, attorneys, and even citizens called upon to be potential jurors. The brutal attack upon educator Wiley.

In Quest, Mr. Payne explains the historical connec- George F. Porter, resulting in his eventual blindness, is tion between these African-American legal trailblaz- an especially captivating portion of Quest and a painful ers and other subsequent legal pioneers such as John L. reminder of Dallas’s not-so-distant past.

Quest provides interesting details of Judge BedTurner Sr., D.M. Mason, William J. Durham, Crawford B. ford’s college days at Prairie View College – from his Bunkley Jr., John L. Turner Jr., and Louis A. Bedford Jr. Quest chronicles the ancestry of Judge Bedford – from its humble Texas roots in the 1800s to the evolusee book, page 8

by Paul K. Stafford

Q

Lawyers Rockin’ for Access to Justice

T

he Dallas Bar Association will host Law Jam 2 on Saturday, August 8 at the Granada Theatre to benefit pro bono legal services for low-income residents. The event, emceed by KLUV’s Jody Dean, will feature seven local bands, each comprised mostly of attorneys. This unique battle of the bands event will raise funds for the Dallas Volunteer Attorney Program, a joint initiative of the DBA and Legal Aid of NorthWest Texas.

The Dallas Bar Association hosted its first Law Jam three years ago and raised more than $100,000.

In addition to great music, Law Jam 2 will feature a silent auction that will include autographed posters, musical instruments, tickets to theater and music venues and restaurant packages.

The Wrecking Crew

Inside 6 Bar None Produces Laughs & Scholarships 7 Legislature Passes Journalist Shield Law 9 Copyright Fair Use and the Online World

The following bands will perform at Law Jam 2: The Usuals, The Wrecking Crew, Second Hand Noise, Independent George, The Catdaddies, Blue Collar Crime and FlashCube.

Doors open at 5 p.m. Purchase your tickets today at http://www.dbalawjam.org.

Blue Collar Crime

2 He a d n o t e s l D a l l a s B a r A s s o c iation

Calendar

July Events

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

Friday Clinics July 10 Noon

July 17 Noon

August 7 Noon

Jul y 2009

Friday Clinic – North Dallas** “Taking the Sting Out of Proof of Liquidated Damages, Gerald W. Livingston. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy. 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 meeting room. Thank you to our sponsor, Griffith Nixon Davison, P.C. (MCLE 1.00)*

Friday Clinic – Belo “Inoculating Your Case Against Bad Facts,” Quentin Brogdon. (MCLE 1.00)*

Friday Clinic – Belo Topic Not Yet Available.

WEDNESDAY, JULY 1

Noon

Solo & Small Firm Section “Appellate Lawyers at Trial – Before You Think You Need Them,” Thomas Allen, Lyndon Bittle and Stephanie Nelson.

(MCLE 1.00)*

Public Forum Committee DAYL Environmental Awareness Committee

5 p.m.

Bankruptcy & Commercial Law Section “Double Impact: Consumer Bankruptcy Decisions Which Affect Business Cases,” Hon. Harlin D. “Cooter” Hale, Julianne Parker and Howard M. Spector. (MCLE 1.00)*

THURSDAY, JULY 2 Noon

Construction Law Section “Construction Law Update,” Joseph F. Canterbury Jr. (MCLE 1.00)*

Family Law Section Board Lawyer Referral Service Committee DAYL CLE Committee

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 meeting room.

Thank you to our sponsor, Griffith Nixon Davison, P.C. (MCLE 1.00)*

Trial Skills Section Topic Not Yet Available.

Minority Clerkship Luncheon. Keynote speaker: Craig Watkins. Sponsored by the DBA Minority Participation Committee. RSVP to BAvina@dallasbar.org.

3 p.m.

High School Mock Trial Case-Writing Committee

MONDAY, JULY 13

Noon

Alternative Dispute Resolution Section “Dallas County Civil Court Judges’ Perspectives on Mediation,” Tamar Meeks and Melodee Mota. (MCLE 1.00, including .5 Ethics)*

DBA offices closed for Independence Day.

Real Property Law Section Topic Not Yet Available.

MONDAY, JULY 6

TUESDAY, JULY 14

FRIDAY, JULY 3 Noon

Tax Section “Sink or Swim: IRS Throws Out A Limited-Time Voluntary Disclosure Program As A Life-Preserver To Taxpayers Treading Shark-Infested International Waters,” Josh Ungerman and Anthony Daddino. (MCLE 1.00)*

Peer Assistance Committee

TUESDAY, JULY 7

Noon

Corporate Counsel Section “2009 Texas Legislative Session Update,” Mark Vane, Kimberly Yelkin and David Weber. (MCLE 1.00)*

Morris Harrell Professionalism Committee

6 p.m.

DAYL Board of Directors

WEDNESDAY, JULY 8 11:30 a.m.

House Committee Walk-Through

Noon

Family Law Section “Taxes and Family Law, Part II,” Joel N. Crouch. (MCLE 1.00)*

CLE Committee House Committee CSF Board of Directors Christian Lawyers Fellowship DAYL Judiciary Committee

5:15 p.m.

LegalLine

THURSDAY, JULY 9 Noon

Admissions and Membership Committee Publications Committee Speakers Committee Dallas Asian American Bar Association DAYL Barristers for Babies DAYL Freedom Run Committee

DAYL

3:30 p.m.

Investiture of Hon. James Stanton

6 p.m.

J.L. Turner Legal Association

FRIDAY, JULY 10 11:30 a.m.

DBF Board of Directors

Noon

Friday Clinic – North Dallas** “Taking the Sting Out of Proof of Liquidated Damages, Gerald W. Livingston. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy. Dallas, TX 75240. Parking is available

Noon

Business Litigation Section and Tort & Insurance Practice Section “Perspectives of New Judges: What They Like & Dislike,” Hon. Ken Molberg, Eric Moye, Hon. Craig Smith and Hon. Mark Greenberg. (MCLE 1.00)*

DAYL Equal Access to Justice Committee

4 p.m.

6 p.m.

Senior Lawyers Committee Home Project Committee

WEDNESDAY, JULY 15

Noon

Energy Law Section “Ethical Considerations and Malpractice Prevention in an Oil & Gas Practice,” Ray Togerson. (MCLE 1.00)*

Health Law Section Topic Not Yet Available.

Sports & Entertainment Law Section Board

Pro Bono Activities Committee Municipal Justice Bar Association Non-Profit Law Study Group

4:30 p.m.

5:15 p.m.

Texas General Counsel Forum LegalLine

THURSDAY, JULY 16 Noon

Minority Participation Committee UPL Subcommittee Dallas Criminal Defense Lawyers Association Dallas Gay & Lesbian Bar Association Christian Legal Society

FRIDAY, JULY 17 Noon

Friday Clinic – Belo “Inoculating Your Case Against Bad Facts,” Quentin Brogdon. (MCLE 1.00)*

MONDAY, JULY 20 Noon

Labor & Employment Law Section “Straight Talk About Employment Law Ethics,” Michael Coles. (Ethics 1.00)*

TUESDAY, JULY 21 Noon

Antitrust & Trade Regulation Section “Bucking the Antitrust Headwinds: AAG Varney vs. the Supreme Court; the United States vs. Most of the World,” William M. Schur. (MCLE 1.00)*

International Law Section Topic Not Yet Available.

THURSDAY, JULY 30

Community Involvement Committee Entertainment Committee Law in the Schools & Community Committee DAYL Elder Law Committee

FRIDAY, JULY 31

WEDNESDAY, JULY 22

Noon

Sports & Entertainment Law Section “Sports Filmmaking and the Power of Footage Licensing in the New Tech Age,” Byron Hunter. (MCLE 1.00)*

Juvenile Justice Committee Legal Ethics Committee DVAP New Lawyer Luncheon DAYL

THURSDAY, JULY 23 Noon

Criminal Law Section Topic Not Yet Available.

Environmental Law Section Topic Not Yet Available.

FRIDAY, JULY 24

Noon

Intellectual Property Law Section “Best Practices in Opposition and Cancellations Before the Trademark Trial and Appeal Board,” John M. Cone.

(MCLE 1.00)*

Media Relations Committee Collaborative Law Section Board

3 p.m.

High School Mock Trial Case-Writing Committee

MONDAY, JULY 27 Noon

Computer Law Section “The Stored Communications Act,” Tim Ackermann. (MCLE 1.00)*

Securities Law Section “Decoupling, Governance and the World Financial Crisis,” Henry Hu. (MCLE 1.00)*

Criminal Justice Committee

TUESDAY, JULY 28 Noon

Courthouse Committee American Immigration Lawyers Association Dallas Hispanic Bar Association DAYL Aid to the Homeless Committee

WEDNESDAY, JULY 29 No DBA meetings scheduled.

No DBA meetings scheduled.

9 a.m.

Christmas in July. Donations accepted at the Belo Mansion until 4 p.m. Sponsored by the DBA Community Involvement Committee. Contact Elaine Mosher at jemmosher@aol.com with questions.

Transition to Law Practice Clinic

MONDAY, AUGUST 3 Noon

Tax Section Topic Not Yet Available.

Peer Assistance Committee

TUESDAY, AUGUST 4 Noon

Corporate Counsel Section Topic Not Yet Available.

Tort and Insurance Practice Section “Top 10 Reasons Property Damage Claims Are Denied,” James LaRoe. (MCLE 1.00)*

Judiciary Committee Morris Harrell Professionalism Committee

6 p.m.

DAYL Board of Directors

WEDNESDAY, AUGUST 5 Noon

Employee Benefits/Executive Compensation Section Topic Not Yet Available.

Solo & Small Firm Section “Law Practice Management: Planning for the Future of You & Your Practice,” Scott M. Baker. (MCLE 1.00)*

Public Forum Committee DAYL Environmental Awareness Committee

5 p.m.

Bankruptcy & Commercial Law Section Topic Not Yet Available.

THURSDAY, AUGUST 6 Noon

Construction Law Section Topic Not Yet Available.

Family Law Section Board DAYL CLE Committee

FRIDAY, AUGUST 7 Noon

Friday Clinic – Belo Topic Not Yet Available.

3 p.m.

High School Mock Trial Case-Writing Committee

18th Annual DBA Bench Bar Conference September 24-26 at Horseshoe Bay Marriott Resort REGISTER NOW for the discounted EARLY BIRD RATE! Register at www.dallasbar.org. Space is limited!

Casual Attire Only! Approximately 4 hours from Dallas. n More than 50 judges attending, and about 250 lawyers. n At least 6 hours CLE, including Ethics. n CLE topics include a view from the federal bench, legal writing, legislative updates, voir dire, marketing in troubled times, the economic crunch’s effects on the profession, negotiation ethics, and much more. n Events such as karaoke, fun run, yoga, sporting clays, tennis, wine tour, golf, fun by the pool, zip-line canopy tour, biking and more.

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 KTarangioli@dallasbar.org.

Jul y 2 0 0 9

D al l as Bar A ssoci ati on l Headnotes 3

Special Mentoring Highlight

Defying the Odds: E-Mentors Point to College

by Darlene Hutchinson Biehl

T

he transition from high school to college is often a daunting time in a teenager’s life. Of those who do graduate, many think college is out of reach.

Many years ago, the Dallas ISD developed the Advancement Via Individual Determination program to help students who face unlikely odds to finish high school and apply for college. A highlight for many of the students enrolled in the AVID program is E-Mentoring, Esq., an initiative launched in 2003 by the DBA and Dallas Association of Young Lawyers, in conjunction with Dallas ISD and supported by the Dallas Bar Foundation.

In its first year, 45 freshmen from one school were paired with 45 legal professionals who used e-mail to “mentor” students and encourage them to succeed in school. Now, the program consists of more than 600 students in a dozen schools.

DBA President Christina Melton Crain has been urging DBA members to identify ways to “mentor the next generation” this year.

“The concept of mentoring stems from early Greek mythology,” Ms. Crain reminds us. “As told by Homer in his epic poem, The Odyssey, Odysseus

asked his trusted friend, Mentor, to watch over his household and guide the development of his son, Telemachus, while Odysseus embarked on his 20-year journey.

Throughout Telemachus’ life, Mentor advised him and served as his instructor Ed Stewart, assistant commissioner for the Michael Sorrell, president of Paul Quinn College, (third from left) was a and role model.

Big 12 Conference and a former All-American keynote speaker in May when the DBA hosted hundreds of Dallas ISD Mentor eventually prepared for the Nebraska Huskers, encouraged hun- students for an E-Mentoring end-of-the-year reception. He urged them to Telemachus for dreds of students enrolled in the E-Mentoring stay focused on their education and take pride in their successes. He was greeted by DBA members who participate in the E-Mentoring program. his own journey program to keep striving for their goals. into the world, providing encouragement and offering community on their own dialogue develops. to accompany him.” schedule,” according to In addition to occaThe E-Mentoring model allows program leader Everett sional e-mail messages lawyers to provide similar encourage- New. “It only takes five between professionment and improve the odds for these minutes a week to reach als and students, some students – many who will be the first across the Web and promentors meet their stuin their families to attend college. vide another tether for dents at the end-of-year In 2009, the success of the program a student who might be receptions at the Belo was evident when 59 of the 63 AVID struggling to meet their Mansion. In mid-May, students at Samuell High School who goals.” the DBA hosted hunparticipate in E-Mentoring received Attorneys, judges, dreds of students who college acceptance letters. paralegals, and legal secretaries are participate in the E-Mentoring pro“E-Mentoring allows even the bus- currently serving as mentors. All that gram at the Belo Mansion, as many of iest professionals to give back to the is required is a college degree and the them shared stories about how their willingness to give mentors provide the much-needed a few minutes each encouragement to get through a parweek to e-mail the ticularly tough class or test. student to which the Being connected to a successful mentor is assigned. professional via e-mail can have a The school district phenomenal effect on a young life. handles the appli- New mentors are encouraged to volcation process and unteer this summer to begin workbackground checks. ing with high school students in the Additionally, the fall.

E-Mentoring comVisit www.dbamentor.org to learn HN mittee provides tools more about the program. to simplify the process, especially in the Darlene Hutchinson Biehl serves as the DBA communications/ initial weeks as the media director.

One of the highlights of the school year for students enrolled in the E-Mentoring, Esq., program is coming to the Belo Mansion to share their successes with their peers and meet their mentors.

The encouragement that the mentors provide via e-mail can produce immeasurable rewards.

The New Dispute Mediation Service, Inc. Serving the Dallas County Courts and Dallas County Legal Community Since 1981

New location, New staff, New professional services with Experienced Professional Volunteer Mediators.

Save Time and Money. Bring your Unique cases to Us. Call today to schedule your mediation before the Judge Orders it!

214-754-0022 www.dms-adr.org 4144 North Central Expy., Suite 1010 DMS is a nonprofit 501(c)3 providing affordable conflict resolution assistance to clients who meet our eligibility guidelines through mediation, education, training.

You Are Invited…

Judicial Investitures Hon. James Stanton, 134th District Court Thursday, July 9, 2009 3:30 p.m. at the Belo Mansion. Reception to follow.

Hon. Robert Fillmore, 5th District Court of Appeals Hon. John Peyton, Dallas County Probate Court Tuesday, August 11, 2009 3:30 p.m. at the Belo Mansion Reception to follow.

4 He a d n o t e s l D a l l a s B a r A s s o c iation

Jul y 2009

Headnotes

President's Column

Taking a Moment to Reflect on Who We Are

by Christina Melton Crain

Great organizations demand a high level of commitment by the people involved.

— Bill Gates (American entrepreneur and founder of Microsoft Co.)

I

t is hard to believe that it is already July! This year is flying by at lightening speed; but not without much hard work and effort by our fabulous Dallas Bar Association members and staff.

As Bill Gates reminds us, it takes major commitment from members of a great organization, like the Dallas Bar Association, to maintain its level of greatness. And, how fortunate we are to have this covered. I am reminded of the many reasons attorneys have given for joining the DBA: n To develop my skills, so I am thought of as a “go-to” attorney at my law firm; n To attend professional, community and social events to network with various attorneys and judges, and possibly receive referrals; n To participate in the DBA’s outstanding diversity programs; n To enhance the reputation of my law firm and become known as a leader in community and professional activities, including participation in pro bono; n To receive leadership training and to represent my law firm in leadership positions with the DBA, State Bar of Texas, American Bar Association and other affinity bar associations; n To participate in the DBA’s 28 sections and 39 committees that provide cutting-edge MCLE – most at no extra cost; n To write MCLE papers and/or speak on MCLE programs and promote my firm; n I just want to be a better lawyer.

So, I ask you to take just a moment to reflect on “who we are” and the benefits of DBA membership by reviewing the following information. I think you will be amazed at the many opportunities the Dallas Bar Association offers its members – I know I am!

Who Is the DBA?

What percentage of licensed attorneys practicing in Dallas County are members of the DBA? Of the 14,400 licensed attorneys practicing in Dallas County, 9,723 or 68 percent are members of the DBA. How does the DBA membership break down into “years of practice”? About 42 percent ofLICENSED DBA members have been licensed YEARS for 21+ years, 24 percent have been licensed for 11 to 20 years, and 34 percent have been licensed for 1 to 10 years.

24% of DBA Members Licensed 11 to 20 years 34% of DBA Members Licensed 1 to 10 years

42% of DBA Members Licensed 21+ years

How does the DBA membership break down by firm size? Statistics show that 35 percent of DBA members are in firms of 1 to 5 attorneys, 11 percent are in firms of 6 to 10 attorneys, 22 percent are in firms of 11 to 40 attorneys, 9 percent are in firms of 41 to 99 FIRM STATISTICS attorneys, and 23 percent are in firms of 100+ attorneys.

11% in Firms of 6 to 10 lawyers

9% in Firms of 41 to 99 lawyers

22% of DBA Members in Firms of 11 to 40 lawyers

35% of DBA Members in Firms of 1 to 5 lawyers

23% of DBA Members in Firms of 100+ lawyers

How does the DBA membership break down by gender? Of MEMBERSHIP BY GENDER the 9,723 DBA members, 69 percent are male and 31 percent are female.

31% of DBA Members are Female attorneys

69% of DBA Members are Male attorneys

Member Benefits for Professional Enrichment The DBA is considered to be among the premier metropolitan bar associations in the nation, with numerous worthwhile benefits

that serve the profession, the community and enhance a member’s professional and personal growth.

Some of our member benefits include: n Free MCLE – The DBA offers more than 350 MCLE courses each year, most of which are offered at no charge. The cost of DBA membership is much less than many MCLE seminars. n Substantive Law Sections – The DBA’s 28 substantive law sections offer educational programs for almost every area of practice. n Headnotes and DBA Online –Each month, the DBA produces its newsletter Headnotes, which includes a calendar of MCLE programs and DBA events, legal updates, as well as employment and office-sharing opportunities. Each week members can receive our e-newsletter Dallas Bar Online. n Peer Assistance Programs – The DBA offers an assistance program for chemical and/or alcohol dependency, depression and stress through its Peer Assistance Committee.

Member Benefits for Your Law Practice n Lawyer Referral Service Panel – Members can participate on the DBA Lawyers Referral Panel, which assists the public in obtaining legal help. The panel is a great way for small-firm and solo attorneys to develop a client base. For information, contact Alicia Hernandez at ahernandez@dallasbar.org or 214-220-7499. n Navigant Consulting, Inc. – Members have access to this specialized international consulting and management services firm which provides objective analysis and opinions in disputes and investigations. With 42 offices in North America, Europe and Asia, Navigant professionals include certified public accountants, business appraisers, fraud examiners, insolvency and reorganization advisors and engineers. Visit www.navigantconsulting.com or call Pam Crowley at 214-721-1574 for more information. n Pictorial Directory – Members can include a photo, address, phone number, e-mail address and area of practice in the DBA Pictorial Directory. The directory is also available online now. n Mailing Labels – DBA members can purchase mailing labels for a particular section or the entire DBA membership at a discounted rate to announce the opening of a new office or other news. n ABA Publication Discounts – DBA members can purchase ABA books at a 15 percent discount. n Discounted Office Supplies – DBA members can receive a discount on office supplies through Association Members Only.

Social Opportunities, Community Service and Other Member Benefits n Networking Opportunities – Members have many opportunities for networking with fellow attorneys from all areas of practice at the Belo Mansion, which can generate friendships, resources and referrals. n Pro Bono Work – The Dallas Volunteer Attorney Program offers a variety of volunteer opportunities to help low-income residents through neighborhood clinics and other events. The DBA provides free MCLE training seminars to assist pro bono volunteers. n Membership on DBA Committees –Service on one of the DBA’s 39 committees can be one of the most rewarding and productive experiences of being a member of the Dallas legal community. n Family Activities – Each year the DBA encourages members to bring their families to the Mother’s Day Brunch, the Holiday Party in December, or participate in Habitat for Humanity, and many other events throughout the year. n Bank of America – Low-interest rate credit card have been designed specifically for DBA members. n Fitness Center Discounts – Discounts are available at The Baylor-Tom Landry Fitness Center, the Texas Club, the Premier Club and the Dallas Athletic Club. n Country Club Membership – The Golf Club of Dallas, a 52-year old club that offers dining, golf, tennis and other facilities and services, offers one month dues free to DBA members who join the club. n Clothing Discounts – DBA members can receive a 15 percent discount off merchandise at Brooks Brothers, Brooks Brothers Factory Outlets, and Carolee and Adrienne Vittadini stores nationwide. Members can also receive a 20 percent discount off regularly priced merchandise at Jos.A.Bank. n Use of Belo Mansion – Members are encouraged to bring guests for the daily lunch buffet and happy hours. Also, members may rent (at a discounted rate) the Belo Mansion for personal events, such as weddings, business meetings, and much more.

More information about these benefits is provided at http:// www.dallasbar.org/members/benefits.asp.

It’s never too late to get involved in a committee, section, a particular program or the like. Sign up today by calling 214-220-7447.

We want your energy, enthusiasm, ideas and talents! Let me take this opportunity to thank each of you for your loyalty, dedication and commitment to our profession and most of all to the DBA! For we are “who we are” – the finest bar association in the country – HN because of you!

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: Christina Melton Crain President-Elect: Ike Vanden Eykel First Vice President: Barry Sorrels Second Vice President: Paul K. Stafford Secretary-Treasurer: Bill Mateja Immediate Past President: Frank E. Stevenson II Directors: Jerry C. Alexander, Arthur Anthony (President, J.L. Turner Legal Association), Kim Askew (at-large), Hon. Tena Callahan, Wm. Frank Carroll, Leon Carter, Rob Crain, Sally L. Crawford, Hon. Elizabeth H. Crowder, Laura Benitez Geisler, Hon. Marty Lowy, Scott McElhaney, Patsy Yung Micale (President, Dallas Asian-American Bar Association), Mary Scott, Paul K. Stafford, Dena DeNooyer Stroh (President, Dallas Association of Young Lawyers), Diane Sumoski, Debra K. Thomas, Christie Villarreal (President, Dallas Hispanic Bar Association) and Brad C. Weber.

Advisory Directors: Jennifer Duncan Edgeworth (PresidentElect, Dallas Association of Young Lawyers), Karen McCloud (President-Elect, J.L. Turner Legal Association), Jose Angel Ortiz (President-Elect, Dallas Hispanic Bar Association) and Hope Shimabuku (President-Elect, Dallas Asian-American Bar Association).

Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly Bell Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales, Travis Vanderpool (Past Chair) HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Darlene Hutchinson Biehl Calendar: Kathryn Tarangioli In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Anne Pohli, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Vincent J. Allen and Lea N. Clinton Members: H. Joseph Acosta, Natalie Arbaugh, Sorana Ban, Heather Barbieri, Barbara Boudreaux, Scott Beckman, Lance Caughfield, Paul R. Clevenger, Christina Melton Crain, Linda Dedman, Tobey S. Elliott, Jennifer A. Green, Floyd R. Hartley Jr., Thomas M. Hoffman, Mary Louise Hopson, Young Jenkins, David F. Johnson, Victor Johnson, Lisa Kivett, Susan P. Kravik, Thomas L. Mighell, Clay Miller, Hon. Jim Moseley, Susan D. Nassar, Heather Bailey New, Kirk L. Pittard, Irina B. Plumlee, Christopher A. Robison, Bryon L. Romine, Andrew Ryan, Gregory W. Sampson, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, J. Allen Sullivan, Claire Swann, Sherry L. Talton, Debra K. Thomas, Edith Miller Thomas, Mark Toronjo, Ike Vanden Eykel, Paul Watler, Jenna P. Wright and Paul F. Wright.

DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Darlene Hutchinson Biehl Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Assistant to the Executive Director: Terri Hawkins Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kay von Westernhagen Projects & Communications Assistant: Kathryn Tarangioli Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas LAWYER REFERRAL SERVICE: LRS Program Assistant: Biridiana Avina Interviewer: Marcela Mejia VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas.

Data Entry/Office Support: Patsy Quinn Dallas Bar Foundation Executive Director: Elizabeth Philipp Copyright Dallas Bar Association. 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 dhutchinson@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.

Jul y 2 0 0 9

D al l as Bar A ssoci ati on l Headnotes 5

The Dallas Bar Association From 1951-1960

by Paul F. Wright

Editor’s Note: As the Dallas Bar Association celebrates the inauguration of its 100th president, Christina Melton Crain, we will reflect each month on the bygone eras the organization has experienced. Darwin Payne’s book, As Old As Dallas Itself: A History of the Lawyers of Dallas, the Dallas Bar Associations, and the City They Helped Build, has been used as a source in these articles. It is available from the Dallas Bar Foundation for $25. Contact Elizabeth at ephilipp@ dallasbar.org.

A

fter the war, the Dallas area experienced economic growth, and many residents began migrating to “the suburbs.” During the 1950s, the practice of law became even more specialized, and the DBA responded by creating various substantive law sections to address the needs of its members.

An Army veteran, William Harry Jack served as DBA president in 1951.

After moving to Dallas from Corsicana, he worked at Saner, Jack, Salinger & Nichols. Mr. Jack had been among the first officers of the Junior Bar Association in the late 1920s, and two years after his tenure as DBA president, he would serve as national president of the Exchange Club.

In 1952, during the term of DBA President Edwin Taylor Armstrong, the bar established a Lawyer Placement Bureau to assist members in finding salaried jobs. Developing a financially successful law practice had not been easy for many attorneys. Other than personal referrals, advertising in local newspapers was among the few options, but advertising in the classified directories of the local papers was often discouraged and perceived to be unethical. Born in Plano, Mr. Armstrong was the managing partner of Storey, Storey, Armstrong, Steger & Martin for 30 years.

Ralph D. Baker led the DBA in 1953. He had grown up in Dallas, and was president of his senior class, which was the first to graduate from Woodrow Wilson High School. A leader in many ways, he also served as president of the Downtown Lions Club, and was active with the Dallas Baptist College development board, as well as the Baptist General Convention of Texas.

Under the leadership of DBA President Franklin E. Spafford in 1954, the association negotiated a contract with the Adolphus Hotel to occupy the space previously used by the City Club for $15,000 per year. This move would allow the DBA to increase its office space, offer dining options and have expanded meeting facilities. However, membership dues increased from $8 a year to $40. Mr. Spafford also served as president of Dallas ISD board, and was on the original Dallas County Community College board.

Serving as DBA president in 1955, Henry W. Strasburger was known as a successful litigator, who “seemed to have an amazing intuitive ability to grasp the essential points of the most complicated cases and then to com-

Visit www.DallasBar.org For Updates on CLE Programs & DBA Events

municate his client’s side of the issue in a compelling fashion,” according to professor Darwin Payne. He began his law practice in 1922, after working his way through college and law school – often with three or four different part-time jobs.

In 1956, during the term of DBA President Dwight L. Simmons, an Inter-American Bar Conference was held in Dallas, co-hosted by the DBA, the Southwestern Legal Foundation and the State Bar. Approximately 750 people attended from throughout the Western Hemisphere to hear speakers such as President Herbert Hoover.

It was a busy year for the DBA, as the organization also welcomed 8,000 guests to Dallas for the American Bar Association annual meeting; it was the first ABA meeting to ever be held in the Southwest.

Mr. Simmons was determined to establish an adequate free legal clinic in Dallas, and he appointed a committee to tackle this project. Within a few months, with overwhelming support of the membership, articles of incorporation were drafted to establish the Dallas Legal Aid Society. Using offices in the Old Red Courthouse, and funded in part by the DBA and various grants, the offices

were officially opened in March 1957. Mr. Simmons served as DLAS president from 1957 until his death in 1970.

In 1957, under the leadership of DBA President John Louis Shook, a fourth-generation lawyer, the DBA renovated its headquarters at the Adolphus and provided members with a lounge room equipped with a television and a highfidelity phonograph. The association’s relocation in the mid-1950s enhanced the “cohesiveness and solidarity among members,” according to author Darwin Payne.

In 1958, Conan Cantwell assumed the presidency of the DBA. He had been a law partner to U.S. District Judge Joe Estes, and later worked at Jackson, Walker, Winstead, Cantwell & Miller. As DBA president, he promoted Law Day in Dallas, which was established that year by President Dwight D. Eisenhower. Later, Mr. Cantwell served as chair of the State Bar Grievance Committee.

By the end of the decade, a “large firm” in Dallas might include 20 or 30 lawyers, and rarely did a lawyer leave a firm, which created very few openings for other lawyers. “Someone had to die, or quit practicing for some other reason, such as retirement to create an

‘opening’ in a law firm,” according to John L. (Jack) Hauer, who served as DBA president in 1981. Also in the late 1950s, the association ceased publication of its The Dallas Bar Speaks series, which had become a time-consuming venture.

In 1959, with DBA President John N. Jackson at the helm, the organization moved its traditional Saturday clinics to Fridays. Many years later, after his tenure as DBA president was over, Mr. Jackson chaired a committee to “study and make recommendations for the creation of a non-profit foundation as a vehicle for sponsoring research, forums, scholarships, legal aid for the indigent” that could accept donations and grants.

A few months later, the committee’s report led to the creation of the Dallas Bar Foundation in 1971.

Ed Lee Gossett served as president of the DBA in 1960, after having served 14 years as district attorney for the 46th Judicial District, and 13 years in Congress. From 1968 to 1976, he served as a criminal district court judge, and then transitioned to a parttime role on the bench for many more years.

Next month, we’ll look at the DBA and its presidents during the HN 1960s.

A CPA and member of the DBA Publications Committee, Paul F. Wright practices law in the areas of business litigation, estate-planning, tax and probate. He can be reached at paul@thewrightfirmllp.com.

Lawyers Rockin' For Pro Bono Saturday, August 8 Ŷ Granada Theater Ŷ 7 Lawyer Bands Ŷ One Night Only!

FEATURING OUTSTANDING LAWYER BANDS Ŷ The Usuals Ŷ Independent George Ŷ The Wrecking Crew Ŷ The Catdaddies Ŷ Ŷ Blue Collar Crime Ŷ FlashCube Ŷ Second Hand Noise Ŷ SPECIAL SPONSORSHIPS AVAILABLE.

Tickets are limited. Purchase your tickets today at http://www.dbalawjam.org.

HALL OF FAME — Your $10,000 contribution includes 20 admission tickets, 20 commemorative t-shirts, complimentary beverages and special recognition.

ROCK STAR — Your $5,000 contribution includes 10 admission tickets, 10 commemorative t-shirts, complimentary beverages and special recognition.

PROMOTER — Your $2,500 contribution includes 6 admission tickets, 6 commemorative t-shirts, complimentary beverages and special recognition.

ROADIE — Your $1,000 contribution includes 4 admission tickets, 4 commemorative t-shirts, complimentary beverages and special recognition.

BOUNCER — Your $500 contribution includes 2 admission tickets, 2 commemorative t-shirts, complimentary beverages and special recognition.

GROUPIE — Your $100 contribution includes event admission, a commemorative t-shirt, three drink tickets and special recognition.

GENERAL ADMISSION TICKET — $25

Because Equal Access Equals Justice Currently, hundreds of Dallas lawyers donate their time to help low-income residents in our city — but we need thousands of lawyers to volunteer! This unique musical event will promote awareness of, participation in and fundraising for the Dallas Volunteer Attorney Program, which coordinates and provides pro bono legal services to the poor. All net proceeds from Law Jam benefit DVAP, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas.

6 He a d n o t e s l D a l l a s B a r A s s o c iation

Jul y 2009

Bar None Performers Deliver Laughs & Scholarship Funds

In its 24th year, the Bar None cast once again proved that their talents extend beyond practicing law, as nearly 50 performers entertained audiences for four nights in June, led by show director Martha Hardwick Hofmeister and producer Tom Mighell. Thanks to the Dallas Bar Foundation and these hard-working singers, dancers and actors, more than $1.2 million has been contributed to the Sarah T. Hughes Diversity Scholarships at SMU Dedman School of Law, and benefited 43 students.

For more information, visit http:// www.barnoneshow.com.

Thank You, Bar None Sponsors!

On behalf of the Sarah T. Hughes Diversity Scholarship, the Dallas Bar Foundation salutes and thanks the following sponsors of Bar None 24: Scumbag Billionaire. Their generous contributions not only benefit the scholarships, but they made this year’s show possible.

Mogul DBA Business Litigation Section Directors: Altrusa Int’l of Downtown Dallas, Inc. Baker Botts, LLP Burdin Mediations Cooper & Scully, P.C.

Stars:

Fulbright & Jaworski Sarah T. Hughes Alumni Scholars Texas Lawyer Waters & Kraus, LLP

n Ardent Creative n Lisa Blue, Baron & Blue n Bracewell & Giuliani, LLP n Century Printing n Christina Melton Crain n Cowles & Thompson, P.C. n DBA Appellate Law Section n DBA Real Property Section n DBA Trial Skills Section n Al Ellis n Federal Bar Association, Dallas Chapter n Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy n Hance & Wickham, P.C. n John K. Horany, P.C. n Jones Day n Hon. Marty Lowy, 101st Judicial District Court n McClure, Duffee & Eitzen n Siemens PLM Software n Winstead, PC n Dale Wootton Friends of Bar None:

Joel & Terilyn Winful* *Inadvertently omitted from Bar None Program.

Jul y 2 0 0 9

D al l as Bar A ssoci ati on l Headnotes 7

New Law Protects Journalists in Civil & Criminal Cases

By Paul C. Watler

T

he Texas Free Flow of Information Act was signed into law on May 13, 2009, by Gov. Rick Perry. The FFOIA creates a qualified privilege for journalists in both civil and criminal proceedings against the compelled disclosure of confidential news sources, non-published material and other journalistic work product.

The qualified privilege provided in the act may be overcome only in narrow, compelling circumstances after considerable due process for the journalist.

With the 81st Legislature’s enactment of HB 670, Texas joins 37 other states and the District of Columbia with similar statutes. Also known as a “shield law,” the act became effective immediately upon the governor’s signing.

The official bill analysis prepared by the Senate Research Center notes the need to protect persons who come forward to journalists to disclose wrongdoing. The act itself declares that its

purpose is “to increase the free flow of information and preserve a free and active press and, at the same time, protect the right of the public to effective law enforcement and the fair administration of justice.”

By providing a testimonial privilege for journalists, the legislators necessarily had to define who a “journalist” is. This was controversial, because of the long First Amendment tradition of journalism as a profession unlicensed or unregulated by the government. It was also a flash point because of the burgeoning ranks of bloggers and citizen journalists. Under the Texas shield law, the definition includes a person “who for a substantial portion of the person’s livelihood or for substantial financial gain” gathers or publishes news or information that is disseminated by a “news medium.”

While the Legislature chose a fairly narrow, practical definition of a “journalist,” its definition of “news medium” was more expansive. “News medium”

VOLUNTEERS ARE NEEDED! Volunteer to tutor students confined to the Henry Wade Juvenile Justice Center once a week. For more information, contact Alicia Hernandez at AHernandez@dallasbar.org. Many other mentoring opportunities exist through the DBA. For more information, contact Cathy Maher at CMaher@dallasbar.org.

includes traditional newspapers and broadcasters, as well as Internet-based media and news dissemination by “other means, known or unknown, that are accessible to the public.”

Codified on the civil side at Texas Civil Practices & Remedies Code sections 22.021 – 22.027, the journalist’s privilege prevails unless there is a clear and specific showing that alternative sources have been exhausted, that the subpoena is not overly broad, that reasonable notice was provided to the journalist, that the interest in disclosure outweighs the public interest in news gathering and reporting, and that information or materials sought from a journalist is essential to the proceeding.

In criminal cases, where the act is codified at Texas Code of Criminal Procedure article 38.11 and 38.111, the Texas shield law includes limited exceptions to the privilege involving a journalist as an eyewitness to a felony, a person confessing a felony to a journalist, where probable cause exists that a confidential source committed a felony and the prosecutor has exhausted all efforts to obtain the source’s identity, or if disclosure is necessary to pre-

vent certain death or substantial bodily harm.

The bill also relaxes evidentiary requirements for proving the authenticity of broadcast tapes. By making it simpler for civil and criminal litigants to prove-up broadcast material, there will be an incentive not to disturb confidential source relationships.

The act is the culmination of advocacy efforts by a coalition of Texas news media during the past three legislative sessions. State Sen. Rodney Ellis of Houston introduced the legislation in 2005 where it failed on a close vote on the floor of the Senate. In 2007, the bill passed the Senate but died late in the legislative session on a point of order on the House floor. Finally this session, after extensive negotiation with Texas prosecutors who were the last active opponents, the bill was passed by super-majorities in both houses and was one of the first bills signed by the HN governor.

Paul C. Watler is a partner in Jackson Walker L.L.P. and a boardcertified specialist in civil trial law. During several legislative sessions, we worked closely with the media coalition supporting the shield law. Any opinions expressed in this article are solely those of the author. He can be reached at pwatler@jw.com.

Justinian Award for Mr. Bramblett

This spring, the Dallas Lawyers Auxiliary presented the 27th Justinian Award to George Bramblett, in recognition for his long-standing dedication to volunteer service benefitting the Dallas community in the area of civic, cultural, educational, health, welfare, religious or philanthropic endeavors. Mr. Bramblett is pictured with Therese Rourk, Jan Lamoreaux and Susan McCombs (left to right).

Ted M. Akin ) 4,000+ cases mediated ) Full-Time Mediator since 1989 ) 90%+ settlement rate ) 35 years of judicial experience ) Justice retired 5th Court of Appeals ) Chair - The Civil Collaborative Group ) Member - The Association of Attorney-Mediators ) Distinguished Mediator - Texas Mediator Credentialing Association

3023 Hester Avenue Dallas, Texas 75205-3525 (214) 821-6370 www.judgeakin.com

) Panel - FINRA Dispute Resolution ) Panel - CPR: International Institute for Conflict Prevention & Resolution

Mediator ) Arbitrator ) Special Judge

8 He a d n o t e s l D a l l a s B a r A s s o c iation

Jul y 2009

100 Club Membership Is Growing!

What is the 100 Club? The 100 Club is an elite group of Dallas law firms, ADR providers, and corporate legal departments with two or more attorneys, in which 100% of their lawyers are members of the Dallas Bar Association. Many firms have hired new lawyers recently who are encouraged to join the DBA and take advantage of our many member benefits. Membership in the 100 Club is renewable by each firm annually. We do not automatically renew a firm’s membership. Monthly recognition for 100% support will be given to these firms through August 2009 in HEADNOTES. Don’t see your name on this list? It is not too late to join! To become a new member of the 100 Club for 2009, please fax a list of the names of all the attorneys in your Dallas office or corporate legal department to Kay von Westernhagen at 214220-7414, or e-mail the list to kvw@dallasbar.org. We will then check your list against our membership records.

100 Club Members as of June 17, 2009 Law Firms With 6 or More Attorneys Ackels & Ackels, L.L.P. Baker & McKenzie LLP Baker Botts L.L.P. Beasley, Hightower & Hartmann, P.C. Bell Nunnally & Martin LLP Blanscet Sutherland Hooper & Hale, LLP Brice, Vander Linden & Wernick, P.C. Brown & Hofmeister, L.L.P. Burford & Ryburn, L.L.P. Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos, Hendricks, Poirot & Smitham, P.C. Clark & Milby, PLLC Cobb Martinez Woodward PLLC Collins Basinger Pullman Cowles & Thompson, P.C. Cox Smith Matthews Inc. Curran Tomko Tarski LLP David, Goodman & Madole, P.C. ELROD, PLLC Ford, Nassen & Baldwin, P.C. Fulbright & Jaworski L.L.P. Godwin Ronquillo PC Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC Griffith Nixon Davison, P.C. Gruber Hurst Johansen & Hail, LLP

Guida, Slavich & Flores, P.C. Hiersche, Hayward, Drakeley & Urbach, P.C. Johnson, Jordan, Nipper & Monk, P.C. Klemchuk Kubasta LLP Koons Real Estate Law Koons, Fuller, Vanden Eykel & Robertson P.C. Kraft & Associates Krage & Janvey, L.L.P. Kroney Morse Lan, PC Little Pedersen Fankhauser LLP Locke Lord Bissell & Liddell LLP Loewinsohn Flegle Deary L.L.P. Malouf Lynch Jackson & Swinson, P.C. McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins & Blau, LLP Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Sandbote, Waggoner & Zopolsky, P.C. Sayles Werbner, P.C. SettlePou Shackelford, Melton & McKinley, LLP Sorrels, Udashen & Anton Stanley, Mandel & Iola, LLP Staubus & Randall, L.L.P. Susman Godfrey L.L.P. The Bassett Firm, P.C. The Hartnett Law Firm Thomas, Feldman & Wilshusen, L.L.P. Winstead PC Law Firms With 2 to 5 Attorneys Ackerman & Savage, L.L.P.

Allison & Johnson Anderson & Brocious P.C. Andrew Lee, P.C. Ashley & Laird Blankenship, Wiland & O’Connor, P.C. Brousseau Graham & Dooley Bruegger & McCullough, P.C. Calloway, Norris, Burdette & Weber Campbell & Chadwick, P.C. Carlock & Gormley, LLP Condon Thornton Sladek Harrell LLP Crain Lewis, L.L.P. Dallas Baptist University Daniel Sheehan & Associates, LLP Deans & Lyons, LLP Dedman & Handschuch PLLC Dement Roach & Stern PLLC Garlitz Bell, LLP Hamilton & Squibb, LLP Hance & Wickham, P.C. Holmes Firm PC Horton & Archibald, P.C Johnson & Silver, LLP Johnston * Tobey, P.C. Keane, Fowler & Donohue Kurzner PC Law Office of Emily Horton PLLC Law Office of Lynn Davis Ward Law Office of Stewart & Behbahani Law Offices of Shelly B. West Law Offices of Terrence G. Turzinski, P.C. Lidji & Dorey Maris & Lanier, P.C.

McTaggart & Associates Mincey-Carter, PC Peters Smith Law Firm Prager & Miller, P.C. Quaid & Quaid, L.L.C. Ramirez & Associates, P.C. Ray & Elliott, Attorneys at Law P.C. Sessions Fishman Nathan & Israel LLP Sheils Winnubst, PC Simpson Woolley, L.L.P. Smith, Stern, Friedman & Nelms, P.C. Spencer & Waterbury Stoddard & Northam, PLLC Taber Estes Thorne & Carr PLLC Tailim Song Law Firm The Gibson Law Group The Law Office of Dan E. Martens The Law Offices of Richard A. Gump, Jr., P.C. Thomas & Dees, PLLC Tobolowsky & Burk, P.C. Walker & Long Winn, Beaudry & Winn, L.L.P. Corporate Legal Departments Belo Corp.

Contran Corporation Debt Settlement America Gearbox Software, LLC Genesco Sports Enterprises Morgan Management Corporation Natural Wellness USA, Inc. Pinnacle Partners In Medicine Tenaska Power Services Co.

Book Chronicles L.A. Bedford’s 58-Year Career continued from page 1

early days as a 16-year-old freshman, slightly immature and unfocused, to a more seasoned college senior, tempered by World War II and preparing for eventual admission to law school.

He was active in a variety of activities on the Prairie View campus, but upon graduation in 1946, Judge Bedford was ready to pursue his law degree.

He knew that the prospect of pursuing a law degree would entail leaving the state, as Texas did not offer graduate school admission to blacks, nor was there a law school established specifically for blacks to attend. At first, he applied to only two law schools, but eventually his friends persuaded him to apply to Brooklyn Law School, where he ultimately enrolled. Quest vividly describes Judge Bedford’s law school days and his desire to return to Texas, be admitted to the bar, and become a well-respected attorney.

Upon his admission to the bar in 1951 and the opening of his office at his home on Thomas Avenue, he began a legal odyssey that has spanned nearly 60 years. Throughout the years, his work address may have changed, but his commitment to excellence within the profession, and justice for all, was unwavering.

In addition, Quest conveys the history of integration within the American Bar Association and the Dallas Bar Association and the formation of the Barristers Club in 1952, the precursor to what is today known at the J.L. Turner Legal Association. Judge Bedford was a founder of the Barristers Club, serving as its secretary, and in later years as the historian of the JLTLA. Quest explains the many legal chal-

lenges to segregation in Dallas and in Texas – including Smith v. Allwright (1944) and Sweatt v. Painter (1950) – originating through the efforts of key Texas attorneys like W. J. Durham (one of Judge Bedford’s role models) and other prominent attorneys from the NAACP, including Thurgood Marshall.

Professor Payne’s book also characterizes the 1960s as time for sit-in demonstrations, pickets and peaceful protests to effectuate change, and L.A. Bedford was an integral component of this movement toward equality. Then, as now, he was active in his community, wellknown and well-regarded.

The commitment of Judge Bedford and others, however, was often overshadowed by the inherent danger of following one’s conscience for the purpose of social justice. As Quest quotes young Mattie Mae Etta Johnson, who was arrested and jailed in the aftermath of the 1960 Marshall, Texas, sit-in demonstrations, “...I have lifted a burden from my heart because of my stand.

In God’s name we are going to get our freedom.”

Following an unsuccessful run for a seat in the Texas Legislature in 1964, and after contemplating another run for the Legislature in 1966, Louis A. Bedford Jr. was appointed a Dallas associate municipal and corporate judge. Upon taking the oath of office on July 19, 1966, he became the first African-American judge in Dallas County history, holding the position

of municipal judge until 1980, when he resigned for an unsuccessful run for Dallas City Council.

Quest recounts the thoughtful and thought-provoking article that Judge Bedford wrote for DBA Headnotes in November 1990 entitled “When I Become an Old Lawyer and Can No Longer Stand Before the Bar,” in which he said he would someday “walk slowly away, my sun setting, but in my heart, I will be watching the sun rise as I see young African American lawyers taking my place before

the Bar.” As a role model and mentor to countless attorneys, minority and non-minority alike, Louis A. Bedford Jr. can rest assured that when he does walk away, the sun of inspired generations will continue to rise.

Editor’s Note: To purchase a copy of Quest for Justice, contact Elizabeth Philipp, executive director of the Dallas Bar Foundation, at ephilipp@ dallasbar.org or 214-220-7487. Each copy is $24.35, including tax (plus $5 for postage and handling). Or books can be purchased by visiting the second-floor offices at the Belo Mansion. HN Paul K. Stafford practices commercial, business, and insurance (policyholder) litigation at The Stafford Law Firm. Mr. Stafford currently serves as the DBA’s Second Vice President, and is forever grateful for Judge Bedford’s mentoring throughout the years.

CHRISTMAS IN JULY

Friday, July 31 ~ 9 a.m. to 4 p.m. ~ The Belo Mansion ~ The DBA Community Involvement Committee is coordinating a drive to benefit local charities, including the North Texas Food Bank, Genesis Women’s Shelter and the Family Place. Please bring donated items (including cash contributions, non-perishable food, bed linens, school supplies, clothing and toiletries) to the Belo Mansion on Friday, July 31. For more information, contact Teddi Rivas at 214-220-7447 or Elaine Mosher at jemmosher@aol.com.

Jul y 2 0 0 9

Focus

D al l as Bar A ssoci ati on l Headnotes 9

Intellectual Property Law

Copyright Fair Use and the Online World

by Dyan M. House

T

he explosion of user-driven content on Web sites such as YouTube, MySpace and Second Life has dramatically increased the opportunity for copyright infringement. While blatant copyright infringement certainly exists online, there are, nevertheless, many uses of copyrighted material that fall under fair use, which allows one to use copyrighted material without the copyright holder’s permission.

An author acquires rights in a work the moment that the creative expression is reduced to a tangible form – whether that creative expression is a book, poem, painting, photograph, song or source code. The author’s “bundle of rights” consists of the right to reproduce the work, the right to display the work publicly, the right to perform the work publicly, and the right to make derivative works. Another person may not copy, display, perform or make derivative works without the copyright holder’s permission. The exception to this, of course, is that a person or entity may use copyrighted material without permission if such use falls within the category of fair use.

Section 107 of the Copyright Act lists the purposes for which reproducing a particular work may be considered fair: criticism, comment, news reporting, teaching, scholarship and research.

This same section delineates four factors to be considered in determining whether or not a particular use is fair: n the purpose and character of the use (including whether the use is of a

commercial nature or is for nonprofit educational purposes); n the nature of the copyrighted work; n amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and n the effect of the use upon the potential market for or value of the copyrighted work.

Simply put, fair use is any copying of copyrighted material for a limited and “transformative” purpose and is a defense to a copyright infringement claim. In determining whether a use is transformative, the analysis focuses on whether the work adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.

In the past few years, fair use has been raised as a defense in a variety of copyright infringement lawsuits. Many of these cases have involved online content providers and social networking sites such as Second Life and YouTube. Real-life people have sued Second Life avatars (graphical images that represent persons) for copyright infringement in the virtual world. And Linden Lab, Second Life’s developer, actively removes content and suspends user accounts in response to takedown notices issued under the Digital Millennium Copyright Act. In February 2007, Stephanie Lenz posted a 29-second video on YouTube of her young children dancing to Prince’s song “Let’s Go Crazy.”

Universal Music, the song’s copyright holder, issued a DMCA takedown

notice. YouTube complied by immediately removing the video from its site.

Ms. Lenz responded by sending a counter-notification to YouTube asserting that her video constituted fair use of the song; therefore it did not infringe Universal’s copyrights. Additionally, she demanded that YouTube re-post the video, which it did weeks later.

She then filed suit against Universal for DMCA abuses.

The case between Ms. Lenz and Universal raised the issue of how vigilant – and thorough – a copyright holder must be in protecting its rights in the digital arena. Universal asserted that it is too burdensome to perform a fair use review of all instances of third parties’ use of their copyrighted materials. Yet the DMCA requires a good faith belief that the use of the material is not authorized by the copyright owner, its agent or the law. Therefore, the court said, the DMCA clearly requires copyright owners to conduct an initial review of the copyrighted materials, including taking fair use into consideration, before issuing a takedown notice.

Finally, how much of copyrighted material can one use and how far can

one go with that use? Despite myths that arbitrary word limits or acknowledgment of the source makes copying acceptable, there are no clear-cut guidelines on fair use. Rather, it is a balancing test. The four elements listed in Section 107 of the Copyright Act described above should guide the evaluation.

Several resources are available to assist in a fair use analysis. n Stanford University posts resources at http://fairuse.stanford.edu. n The Center for Social Media at American University has released a Code of Best Practices for Online Video, which may be found at http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/.

At the end of the day, attorneys and clients should remember that the purpose of copyright is to protect creative expression, which includes allowing others to use copyrighted material for HN fair use purposes.

Dyan House is an intellectual property attorney with Munck Carter, LLP. Her practice focuses on trademark, copyright, licensing and franchising. Ms. House currently serves on the advisory council to the DBA’s Franchise & Distribution Law Section. She can be reached at dhouse@munckcarter.com.

Firms, groups and/or individual lawyers are needed to advise

Dallas ISD Mock Trial teams.

Interested? Please contact Amy Smith at asmith@dallasbar.org.

The Dallas Jewish Community Foundation Presents the 14th Annual Professional Advisors Seminar: What’s Hot, What’s Not: 2010 Edition Stephan R. Leimberg is CEO of Leimberg and LeClair, Inc., an estate and financial planning software company, President of Leimberg Associates, Inc., a publishing and software company in Bryn Mawr, Pennsylvania, and Publisher of Leimberg Information Services, Inc. which provides e-mail based news, opinion, and information for tax professionals.

Stephan R. Leimberg Leimberg is the author of numerous books on estate, financial, and employee benefit and retirement planning and a nationally known speaker. Leimberg is the creator and principal author of the entire Tools & Techniques series.

A nationally known speaker, Professor Leimberg has addressed the Miami Tax Institute, the NYU Tax Institute, the Notre Dame Law School and Duke University Law School's Estate Planning Conference, the National Association of Estate Planners and Councils, and the AICPA's National Estate Planning Forum. Leimberg has also spoken to the Federal Bureau of Investigation, and the National Aeronautics and Space Administration.

Leimberg was named 1998 Edward N. Polisher Lecturer of the Dickinson School of Law and was a featured speaker at the American Bar Association's Tax Sections Annual Meeting.

Thursday, September 17 2009 7:30 a.m.

Our 2009 Seminar has a new location: Westin Park Central 12720 Merit Drive Dallas, TX 75251 Valet parking $10 Surface self-parking is complimentary.

Earn 2 CE Hours

Register online at www.DJCF.org Early Registration: $50. After September 1, $60.

Call 214-615-9351 or e-mail info@djcf.org

2009 Sponsors

Prescott Pailet Benefits LP Bessemer Trust Cole & Reed, P.C. Financial Planning Associates Gardere Wynne Sewell LLP Hunton & Williams LLP Kroney Morse Lan PC Lane Gorman Trubitt, LLP Philip Vogel & Co. PC Silverman Goodwin LLP

Stanford M. Kaufman and Associates The Blum Firm, PC, Attorneys at Law TravisWolff Independent Advisors & Accountants Weaver and Tidwell LLP Winstead PC Waldman Bros.

10 H e a d n o t e s l D a l l a s B a r A ss ociation

Focus

Jul y 2009

Intellectual Property Law

Common IP-Related Mistakes Made in Corporate Web Sites

By Kelly Kubasta, Bhaveeni Parmar and Roxana Sullivan

M

ost businesses maintain a presence on the Internet – some simply provide a passive site intended to convey general information, while others offer a more sophisticated site allowing consumers to review and purchase the business’s goods or services.

Regardless of the complexity, an Internet presence can provide substantial benefits in terms of brand recognition and sales revenue, but many pitfalls exist relating to the intellectual property rights of the business and/or its competitors.

Following is a brief overview of some of the most common IP-related mistakes that occur when creating or modifying a business Web site.

Not marking patented products, trademarks and copyrighted materials.

Notice and proper marking are important steps in protecting IP both in the physical world and on the Internet. Counsel should regularly review corporate Web sites to ensure that any patented products, patent-pending products, trademarks and copyrighted materials are clearly designated as such. Failure to comply with marking requirements can hinder efforts to obtain damages when enforcing the IP and, in a worst case scenario, could result in a loss of exclusive rights in the IP. Using third-party trademarks without permission. Web sites that use third-party marks without permission or that divert traffic from a competitor’s Web sites by embedding the competitor’s trademark in their own sites, either as metatags or white lettering on

a white background, could be held liable for trademark infringement. The use of metatags and white lettering has not uniformly been held to be an act that can be trademark infringement under the federal trademark statute, the Lanham Act. In 2008, however, the First Circuit did find that these actions constituted trademark infringement despite the lack of actual confusion among consumers (Venture Tape Corp. v. McGills Glass Warehouse).

Bidding on a competitor’s trademarks for advertising. While courts are split on whether the keyword and AdWords® advertising incorporating a competitor’s trademarks constitutes trademark infringement, some have found infringement even when the marks were not visible in the advertisement. Although such actions can result in initial interest confusion, a recent decision in federal court in the District of Massachusetts held that the confusion must amount to more than a mere diversion to a sponsored link (Hearts on Fire Company, LLC v. Blue Nile, Inc.). Web sites should use discretion when engaging in keyword bidding.

Not policing licensed trademark usage. Distributor and franchise agreements typically specify how trademarks should appear on products, packaging and advertising materials and delineate what rights the distributor or the franchisee has in the marks. Likewise, franchise agreements need to specify how the marks should be used on Web sites and in third-party sponsored advertising. Failing to police trademark usage by distributors and franchisees can result in

Redefining ‘News’ in the Digital Age

The DBA Media Relations Committee hosted a panel discussion in May about evolving newsrooms and the effects on investigative reporting. The panel included Bennett Cunningham, Channel 11 investigative reporter; Doug Swanson, Dallas Morning News projects editor; former prosecutor Toby Shook; media lawyer Tom Williams; and Shawn Williams, publisher of DallasSouthBlog.com (left to right, photo above), who are pictured with DBA President Christina Melton Crain (center).

the trademark losing its ability to function as a source identifier and a loss of goodwill – and loss of the mark itself.

Not addressing user-generated content issues. Web sites that promote and incorporate user-generated content can qualify for immunity from copyright liability as a service provider under the Digital Millennium Copyright Act. To qualify under the safe harbor provisions of the DMCA, the Web site must outline a notice and takedown procedure and the Web site operator must register a “copyright agent” with the U.S. Copyright Office. Service providers need to be cautious, however, because exercising too much control over user-generated content can result in the site being classified as a content provider and losing its immunity under the DMCA. Overlooking patent issues for e-commerce sites. Most e-commerce sites use certain business practices, data managing systems, and graphical user interfaces that distinguish the site from competitors. Consider performing a professional patent search relating to the technologies driving the e-commerce site. Depending on results of the patent search, the business may discover: (a) that a third party has already sought and obtained patent protection, thus revealing the possibility of a future dispute; or (b) that the technologies could potentially qualify for patent protection, thus providing an opportunity to further strengthen any competitive advantage. Both results provide valuable insight that may provide long-term financial benefits.

Not addressing IP rights in 9:02:52 userAM Commercial Properties Ad_finalHR.pdf 5/22/09 agreements. A terms of use and con-

ditions agreement discloses the policies and practices of the company and its Web site. Such agreements should clearly describe and denote ownership and use of any IP available through or on the Web site. In particular, social networking, content sharing, or any other Web sites offering message board functionality should consider providing a procedure to handle any disputes related to the ownership of IP on the site.

Finally, many other potential problems can easily be avoided by taking simple precautions.

For instance, costly litigation or arbitration disputes can be prevented by preemptively registering domains incorporating the company’s trademark or variations thereof.

A regular review of the Web site’s procedures and policies set forth in the online privacy policy, and careful compliance with that policy, can also help to avoid future disputes. Similarly, a periodic audit of any software used on the Web site should be performed to ensure that any required licenses have been obtained.

Companies are encouraged to seek legal counsel to address these and many other issues that could arise with the launch or modification of a corporate Web site. A bit of forward-thinking early in the process can avoid many costly HN headaches in the future.

Kelly Kubasta is a founding partner of Klemchuk Kubasta LLP, an intellectual property boutique specializing in IP protection and prosecution, commercial and business litigation, and negotiation of technology and entertainment-related agreements.

Bhaveeni Parmar and Roxana Sullivan are associates at Klemchuk Kubasta LLP. They can be reached at kelly@kk-llp.com, bhaveeni@kk-llp.com and roxana@kk-llp.com, respectively.

Jul y 2 0 0 9

Focus

Dal l as Bar A ssoci ati on l Headnotes 11

Intellectual Property Law

Protect IP Against Counterfeiters in the U.S. and Abroad J. F. (Jim) Chester

T

he U.S. government estimates that American companies lose $250 billion every year to intellectual property theft via piracy and counterfeit goods, which translates into the loss of 750,000 U.S. jobs.

Although the law may be on their side, IP owners have significant challenges to protecting their intellectual property from piracy, particularly when producers and purveyors of counterfeit goods are foreign. Nevertheless, there are a number of measures owners can take to minimize theft by counterfeiters.

This article recommends a three-step approach.

Identify Assets

IP assets include trademarks, copyrights, patents and trade secrets. Many companies assume that only high-tech or entertainment businesses have such assets. In fact, all companies have these assets – although many fail to adequately identify or protect them.

Secure IP Rights

Once an IP owner has identified those assets, it should secure the IP rights directly and indirectly.

Owners can secure IP rights directly through contractual agreements with vendors, affiliates, employees and other persons and entities with whom they do business. Such agreements include non-

disclosure agreements, joint venture agreements, licenses and development agreements. The main benefit of using contracts to secure IP rights is that owners can define their rights broadly.

A significant weakness of this method is that the agreements will only be enforceable against those who enter into these agreements.

Securing IP rights indirectly generally involves registering the intellectual property (e.g., trademarks and patents with the U.S. Patent & Trademark Office, and copyrights with the U.S. Copyright Office) and relying on state and federal statutes with respect to trade secrets.

Many owners mistakenly believe that securing these rights in the U.S. will give them protection in other countries, as well. However, in most cases, IP rights in the U.S. have little to no impact internationally. Owners must avail themselves of the national laws of each country where they seek protection. This usually involves registration of IP rights in these countries.

Under various treaty regimes, many countries agree to give U.S. owners IP rights equal to the rights of their own nationals – but only if they satisfy the requirements applicable to those nationals.

Police & Enforce IP Rights

Once rights to the IP assets have

Bench Bar: Outstanding Lawyer Award to Be Presented continued from page 1

Her name regularly appears on local, state and national “top lawyer” lists, and the judiciary looks to Ms. Cortell to help shape evolving policies and procedures.

She has chaired a committee overseeing the appointment of a U.S. magistrate judge and a task force studying the efficiency of federal courts. She is also a member of the prestigious Texas Supreme Court Advisory Committee.

Mike Hatchell, an Austin lawyer who works with Ms. Cortell on the Advisory Committee and as co-counsel, says she “has the rare combination of a superb intellect, keen insight, and wise counsel applied in a sure, firm yet mature demeanor that makes a forceful, credible advocate for her clients.”

The bar also benefits from her efforts.

She has chaired the State Bar Advanced Appellate Course and the DBA Bench Bar Conference. In 2007, Ms. Cortell chaired the State Bar Task Force on Women and Minorities, which earned her the State Bar of Texas Presidential Citation for leadership. She has also served on the DBA’s Task Force on Racial & Ethnic Bias in the Courts, and as president of the Patrick E. Higginbotham Inn of Court.

Ms. Cortell’s profound commitment to mentoring young lawyers, particularly women lawyers, is one of her greatest legacies. Together with an impressive group of women who graduated from the University of Texas School of Law in the 1970s, She co-founded the UT Center for Women in the Law, which is dedicated to advocating for change and improving the status of all women in law. She explains: “We envision the center serving women in several ways.

It will be a resource for women who are law students or who have graduated and are in the profession. We will also work with law

firms, businesses, and academia to help assess and encourage the advancement of women in whatever paths they choose.”

No account of Ms. Cortell’s accomplishments would be complete without mentioning her 33-year marriage to Dr. Robert L. Fine (a physician and renowned expert in medical ethics and end-of-life care) and their three amazing daughters. She had her first daughter when she was a fourth-year associate and has had at least one child at home during 28 years of her practice. Lauren is now a second-year emergency room resident and accomplished singer/songwriter, Rachel is a personal trainer (to several DBA members, no less), and Becca is a sophomore at Columbia University.

Ms. Cortell asked that her family be mentioned in this article not so much because of her pride (which is immeasurable), but because she wants women lawyers to know that raising a healthy, happy family and pursuing a legal career are not mutually exclusive.

The message women so often hear is that they can’t do it all, but Ms. Cortell is living proof that they can – and do it well.

It comes as no surprise that when Ms. Cortell received the prestigious Louise B. Raggio Award from the Dallas Women Lawyers Association in recognition of her contribution toward the advancement of women in the legal profession, all three of her daughters looked on with just as much pride for their mother as she has for them.

The Outstanding Lawyer of the Year Award will be presented to Nina Cortell on Thursday, September 24 at the DBA Bench Bar Conference in the Hill Country. To register, visit www.dallasbar.org. Space is lim HN ited.

Heather Bailey New is a past co-chair of the DBA Publications Committee, and an appellate lawyer with Haynes and Boone LLP. She can be reached at heather.new@haynesboone.com.

been effectively secured in the U.S. and abroad, owners must police against infringement and piracy, and must take action against counterfeiters and infringers once the infractions are discovered.

IP policing includes investigating instances involving potential infringement or piracy. These may include monitoring domain registrations, online auction sites, responding to tips from various sources, and even shopping at competitors suspected of producing or selling counterfeit merchandise.

Upon discovering piracy or other infringement, owners can send “cease and desist” letters or initiate infringement lawsuits. In some cases, allegations of piracy can be reported to legal authorities, who may initiate criminal proceedings against the counterfeiters.

Outside the U.S., enforcement of owners’ IP rights will be limited to those provided by the laws of the countries in which the counterfeiters operate, and will be limited to those countries in which owners have effectively secured their rights. Moreover, in many instances, the IP laws of foreign countries are not as actively and effectively enforced as those in the U.S. However, if foreign-made counterfeits arrive at the U.S. border, IP owners can enlist the assistance of the U.S. government to identify and stop them from entering the U.S. market by recording their U.S.-registered trademarks and copyrights, as well as trade names, with U.S. Customs & Border Protection. Once a trademark, trade

name or copyright has been recorded, CBP has the authority to deny entry to or seize goods that infringe upon the recorded rights.

CBP’s authority to help patent owners protect their rights is limited. However, CBP enforces exclusion orders issued by the International Trade Commission under Section 337 of the Tariff Act of 1930. Exclusion orders are issued if the ITC determines that Section 337 has been violated through unlawful, unfair methods of competition or unfair acts involving the importation of goods. Once CBP receives a seizure-and-forfeiture order from the ITC, the goods would be subject to seizure.

According to CBP, the domestic value of goods seized for IP violations in 2008 increased by 38.6 percent over 2007 to $272.7 million. China was the top source country for seizures of infringing products in 2008, accounting for 81 percent of the total domestic value seized. Footwear was the top commodity seized, accounting for 38 percent of the total domestic value.

Intellectual property piracy is a multi-billion dollar global industry.

While it may be impossible to completely eliminate piracy, if owners in the U.S. implement strategies to identify, secure and enforce their intellectual property here and abroad, they can significantly minimize their losses HN to IP theft.

J. F. (Jim) Chester, JD/LL.M, chairs the Intellectual Property and International Practice Groups at Cowles & Thompson, PC. He is also an adjunct professor at Baylor University School of Law. He can be reached at jchester@cowlesthompson.com.

REGISTER FOR SPANISH CLASSES Sign up for the next round of “Spanish for Lawyers” courses, including: * Beginners Spanish * Intermediate Spanish * Advanced Spanish * Each 10-week course is $180, and held at the Belo Mansion Classes begin the week of August 17, and are held from 6 to 7:30 p.m.

Contact Teddi Rivas at TRivas@dallasbar.org or 214-220-7447 for an enrollment form and information about textbooks.

CALL TODAY TO SCHEDULE A TOUR

ADOLPHUS

TOWER A HENRY S. MILLER PROPERTY

www.henrysmiller.com

12 H e a d n o t e s l D a l l a s B a r A ss ociation

Focus

Jul y 2009

Intellectual Property Law

Movin’ Out: Escape from the Eastern District?

by Sarah M. Paxson

I

n the world of patent infringement, all roads may no longer lead to the Eastern District of Texas. While defendants may have to pass through the area, recent venue transfer decisions by the Fifth and Federal Circuits have widened the opportunity for an early exit.

A district court can transfer a civil case to any other district in which it could have been brought, “[f]or the convenience of parties and witnesses, in the interest of justice.”

Prior to the Fifth Circuit Volkswagen en banc decision in October 2008, Eastern District courts had gained some notoriety for keeping cases with arguably little connection to the venue outside of the plaintiff’s desire to be there.

However, in Volkswagen, the Fifth Circuit expressly rejected the lower court’s practice of weighing plaintiff’s choice of venue as a separate factor in its transfer analysis, explaining instead that the plaintiff’s choice is reflected in the “good cause” burden that a moving party bears to show that the transferee venue is a “clearly more convenient” venue.

While criticizing the lower court’s application of certain private and public interest transfer analysis factors, the Volkswagen court left the factors themselves unchanged. The private interest factors are: (1) the relative ease of access to sources of proof; (2) the cost of attendance for willing witnesses; (3) the availability of compulsory process to secure the attendance of witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.

The public interest factors are: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law. No single factor is of dispositive weight.

Interestingly in this electronic age, the Fifth Circuit said the district court erred in finding neutrality of the ease of access to proof factor — a finding based on the documents electronic availability. In a statement arguably out of step with the reality of electronic discovery, the court noted that while access may be more convenient now, the access factor is not rendered superfluous due to technology.

Addressing the second private interest factor, the court reiterated the 100mile rule enunciated in a prior Volkswagen decision, which establishes a relationship between witness distance and venue in which inconvenience increases as witness distance increases.

The court also sharply critiqued a rationale for which the lower court is wellknown — the finding of localized interest based on the fact that the subject products were sold in the district. The Fifth Circuit rejected that rationale, noting that accepting it eviscerated the second public interest factor by weighing against transfer in every case involving national sales.

In the December 2008 In Re TS Tech decision, the Federal Circuit applied Fifth Circuit law in reversing an Eastern District denial of a transfer motion in a patent case. While finding the same lower court errors in applying the transfer factors as in Volkswagen, the Federal Circuit also noted that the fact that it was a patent case based on nationwide sales did not change the

way that localized interest should be assessed under Volkswagen, which was a products liability case.

The Eastern District has transferred about half of the dozen so patent cases considered since Volkswagen and TS Tech. All successful transfer motions have involved foreign plaintiffs and foreign defendants whose primary connection to the district was alleged product sales. The Eastern District’s recent decisions are instructive in several respects.

First, movants should assess the electronic nature of the likely documentary evidence. Judges within the district have uniformly interpreted Volkswagen and TS Tech’s comments on

weighing the relative access to proof factor to refer primarily to physical objects/documents that are not stored electronically. If most evidence will be exchanged and stored electronically, this factor will likely be neutral.

Second, parties should submit specific evidence identifying key witness locations to allow assessment of witness convenience under the 100-mile rule.

Parties can expect analysis of this factor to be dominated by a literal count of the actual number of witnesses who would have to travel further if the case were transferred. Third, even in a case involving product sales in the district, if the movant seeks to transfer the case to its home venue, the localized inter-

est factor will likely weigh in its favor.

Finally, considerations of judicial economy could potentially subsume the transfer analysis. The presence of multiple related matters pending in the district has been found to weigh heavily against transfer, while judicial experience with the patents in the transferee venue has weighed strongly in favor of transfer. Although Volkswagen and TS Tech should help more defendants move out of the Eastern District, transfer analysis remains factor-based HN and fact-specific.

Sarah M. Paxson is an attorney with the intellectual property boutique of Storm LLP and is a member of the DBA IP Section. She can be reached at spaxson@stormllp.com.

COURT OF CRIMINAL APPEALS TO HEAR ORAL ARGUMENT AT BELO

JUDICIAL EVALUATION POLL

The Texas Court of Criminal Appeals will be at the Belo Mansion on Friday, September 11 to hear Oral Arguments, beginning at 12:30 p.m.

Look for the JEP results

All members are invited to attend.

www.dallasbar.org

RSVP to Amy Smith at: asmith@dallasbar.org.

in late July.

online at

Coming Soon!

Trial lawyers on both sides of the aisle agree there is no better way to prepare for trial than to research your judge through

The 2009 Dallas County * Bench Book *A portion of the proceeds from the sale of this book goes directly to the Dallas Bar Association.

Call 800-456-5484 to order your copy today!

Jul y 2 0 0 9

Focus

Dal l as Bar A ssoci ati on l Headnotes 13

Intellectual Property Law

Software Anti-Piracy Group Targets Dallas

By Robert J. Scott

R

eport software piracy, get rewards” is the theme of frequent Dallas-area radio ads by the Business Software Alliance, a global software industry group including companies such as Adobe, Microsoft, Autodesk and Symantec.

The BSA has been offering to pay for software piracy tips on local radio stations since February 9, as reported

by TNS Media’s AdScope. The tips can be anonymous and can result in rewards of up to $1 million.

Software license agreements are often unique, and may be lengthy and complex. In light of the BSA’s efforts to protect the intellectual property rights of its software publisher members, it is important for counsel to be able to offer recommendations for reducing the risks of external software audits by the BSA, by the Software Information and Industry Association, or by software publishers themselves.

Companies facing a software audit often make the following mistakes.

Failing to compile and produce accurate installation information.

Even in small environments, a manual process to review the software on each computer is time-consuming and unreliable. Personnel should carefully select an automated software discovery tool that will produce results in a format that can be easily interpreted.

Discovery tool selection is critical to the success of the audit initiative.

Trade associations may provide free tools; however, personnel must ensure that any tool used accurately reports the data and excludes information that is outside the scope of the audit request.

Relying on internal IT staff to

“

respond to a software audit request.

Employees in IT departments may prepare audit reports containing information that is incorrect or beyond the scope of what is required to adequately respond. Improperly reporting the software installations may inflate the monetary portion of the settlement.

Submitting improper documentation to prove ownership. BSA generally only accepts dated proofs of purchase with an entity name matching that of the audited company. Company personnel should avoid the kneejerk purchase of additional licenses in response to a request for an audit as these purchases will be irrelevant to the audit.

Failing to involve counsel. When responding to an audit, it is important to avoid common mistakes that may jeopardize a company’s legal position. Any automated discovery that is conducted under the supervision of legal counsel should be protected by attorney-client and work-product privileges, in the event that an outof-court resolution is not be possible.

Also, lawyers should interpret the installation information gathered by the automated discovery tool, reconcile that data with all available proof-of-purchase information and determine whether it includes only information within the scope of the audit. Note that licensing models are often dependent on the actual use of the product in the company’s specific environment. And experienced counsel will be able to provide the audited company with an accurate estimate of the likely monetary aspects of a proposed settlement.

Company personnel should consider the following tasks to mitigate

~ In Memoriam ~ Since 1875, the DBA has honored deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To volunteer with this committee, contact Cathy Maher at cmaher@dallasbar.org. To view the Memorial Resolutions presented to the families of deceased members, visit http://www.dallasbar.org/inmemoriam.

Stephen Lourens Bowman (1964-2008), a 1992 graduate of J. Reuben Clark Law School at Brigham Young University.

Hon. Leonard E. Hoffman (1919-2009), a 1947 graduate of University of Texas Law School.

Richard M. “Dick” Hull (1940-2009), a 1964 graduate of SMU Law School.

Mark G. Magilow (1943-2009), a 1968 graduate of Harvard Law School.

Elbert M. Morrow (1928-2009), a 1950 graduate of SMU Law School.

Robert B. Payne (1924-2009), a 1949 graduate of University of Texas Law School.

Richard Lanier Thomas (1926-2009), a 1955 graduate of SMU Law School.

risks in software audits: n Negotiate “no-audit” provisions into license agreements. n Leverage services offered by software resellers. n Retain proofs of purchase and keep accurate records. n Educate business users regarding licensing rules. n Avoid “scope creep” when audited. n Choose integrated IT asset management tools.

Companies are not required to cooperate with a request for a software audit either from the publisher

or their trade associations, but avoiding litigation is unlikely without an agreement to participate in a voluntary audit of some type. The legal and financial implications of software audits can be enormous, and the public relations risk should not be underestimated. The costs, even for those that are resolved successfully, are substantial. Businesses that are most prepared will have the greatest success in defending a software license audit and HN saving money.

Robert J. Scott is managing partner of Scott & Scott, LLP. He can be reached at rjscott@scottandscottllp.com.

ExxonMobil Foundation Provides Intern to DVAP careers in the nonprofit sector.

Charanya, a senior at Southern haranya Krishnaswami has joined Methodist University, is majoring in the Dallas Volunteer Attorney political science, finance, and French Program as an ExxonMobil Com- and plans to attend law school. She munity Summer believes that this Jobs Program suminternship will help mer intern. For eight her gain a better weeks this summer, understanding of she will be responsible nonprofit organizafor assisting with case tions and how they management, intake make a difference in at evening clinics, the community, as organization of conwell as enhancing tinuing legal educaher understanding of tion and recruiting the legal system. events, and helping Launched in 1993, plan DVAP’s annual DVAP is a joint proPro Bono Awards celgram of the Dallas ebration.

Bar Association and The Dallas VolLegal Aid of NorthCharanya Krishnaswami unteer Attorney ProWest Texas. DVAP gram was selected as one of 75 non- recruits, trains and supports pro bono profit agencies in Dallas County to attorneys; last year approximately participate in the 2009 ExxonMobil 3,475 families in Dallas County were Community Summer Jobs Program, assisted. which is funded by the ExxonMobil DVAP welcomes Charanya to the HN Foundation. This program provides team. agencies with additional help during the summer months and gives stu- Michelle Alden is the managing attorney for the Dallas dents the opportunity to learn about Volunteer Attorney Program.

by Michelle M. Alden

C

14 H e a d n o t e s l D a l l a s B a r A ss ociation

In the News

Jul y 2009

July

ON THE MOVE

John E. Bloomer and Gardner Savage have joined Curran Tomko Tarski LLP in the real estate and finance section. Jack Luckett has joined the firm’s litigation section, and Craig Pritzlaff has joined the environmental section.

Yesenia Cardenas-Colenso has joined Kane Russell Coleman & Logan as an associate.

Steven E. Clark and Mitchell S. Milby have formed Clark & Milby, P.L.L.C., with associates Melissa de la Garza, William I. Gardner, and W. Zac Duffy. The firm is located at 1401 Elm St., Suite 3404, Dallas, TX 75202.

Allen J. Dickey has joined Munsch Hardt Kopf & Harr, PC. Shane M. Egan has joined the new firm of Miller, Egan, Molter & Nelson LLP located at 4514 Cole Avenue, Suite 1250, Dallas, TX 75205.

Steven L. Green and Eric G. Walraven have joined Underwood, Perkins & Ralston, P.C. as senior counsel.

Natalie Gregg is now officing at 8144 Walnut Hill Lane, Suite 1080, Dallas, TX 75231.

Mark Habbinga has joined Epiq Systems Inc. as a director in the e-discovery group.

Leslye E. Moseley has joined Sessions Fishman Nathan & Israel LLP.

John Mark Stephens has joined Kane, Russell, Coleman & Logan, P.C. as an associate.

Mark D. Wigder has joined Looper Reed & McGraw in the securities and corporate sections.

KUDOS

mittee which is drafting a Uniform Collaborative Law Act. Frank E. Stevenson II, of Locke Lord Bissell & Liddell LLP, has received the Medal for Eminent Service from his alma mater Amherst College.

George C. Chapman, of Thompson & Knight LLP, is the recipient of The University of Texas School of Law’s Lifetime Achievement Award.

Lynnette R. Warman, of Hunton & Williams LLP, has been elected an executive committee member-at-large for the American Bankruptcy Institute’s board of directors.

Lea F. Courington, of Curran Tomko Tarski LLP, has been selected as a fellow of the Litigation Counsel of America.

John A. Zervopoulos, of PsychologyLaw Partners, has written Confronting Mental Health Evidence published by the ABA.

Byron F. Egan, of Jackson Walker, L.L.P., has received the Franklin Jones Best Continuing Legal Education Article Award from the State Bar College.

Marcus A. Helt, of Gardere Wynne Sewell LLP, has been named partner in the firm’s bankruptcy and business reorganization section.

Allyson N. Ho, a partner at Morgan Lewis & Bockius LLP, has been appointed to serve on the Texas Judicial Council.

Lawrence R. Maxwell Jr., a solo practitioner, has been appointed co-chair of the Collaborative Law Committee of the ABA Section of Dispute Resolution. He also serves as the section’s advisor to the Uniform Law Commission Drafting Com-

Law Students Discuss Core Values

In May, for the fifth consecutive year, the Dallas Bar Association hosted nearly 150 law clerks at the Belo Mansion for the Law Students & Professionalism Program. The afternoon event brought students in touch with more than 20 judges and lawyers who discussed hypothetical dilemmas in small breakout groups, prompting the students to consider the best plan of action in the scenarios. The three-hour program also addressed mentoring and business etiquette, and encouraged students to develop a strong standard of professionalism early in their careers. After DBA President Christina Melton Crain (photo above left) welcomed the students, Betsy Whitaker, past president of the State Bar of Texas, discussed the traits of the lawyers who had the greatest impact on her professional career (photo, below right).

FROM THE DAIS

Hartman, Leito & Bolt, LLP. William E. Hartsfield, of Hamilton & Hartsfield, spoke to the American Corporate Counsel Association on “Investigating Employee Conduct and Reductions in Force.”

Willie Hornberger, of Jackson Walker LLP, spoke at the “Doing Business in Texas” conference in Monterrey, Mexico, hosted by the State of Texas.

Michele Wong Krause, of The Wong Krause Law Firm, was the keynote speaker at the spring banquet of the SMU Asian American Law Students Association.

Vincent Allen, of Carstens & Cahoon, gave a presentation on design patents at the State Bar of Texas Representing Small Business CLE.

Beth M. Maultsby and Kathryn J. Murphy, of Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC, spoke at the State Bar of Texas Marriage Dissolution Course in Fort Worth.

Alex Frutos and Jim Griffin, of Jackson Walker LLP, spoke at the annual Presidents’ Forum hosted by The Entrepreneurship Institute. Mr. Griffin also spoke at an Employee Benefit Plan Update hosted by

News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send announcements to Judi Smalling at jsmalling@dallasbar.org.

Minority Clerkship Luncheon Friday, July 10 ~ Noon ~ The Belo Mansion Keynote speaker: Craig Watkins, Dallas County District Attorney RSVP to BAvina@dallasbar.org.

Jul y 2 0 0 9

Classifieds

Dal l as Bar A ssoci ati on l Headnotes 15

July

POSITIONS AVAILABLE

Downtown Fort Worth AV-rated boutique firm seeking litigation paralegal with 3 to 5 years experience in heavy volume of civil litigation. Any fiduciary litigation experience a plus.

Respond to Dallas Bar Association, Box 07-09A, 2101 Ross Ave, Dallas, TX 75201.

Small full-service law firm serving Texas, New York, and California, seeks an experienced, motivated commercial litigation associate for its office near the Las Colinas area of Dallas-Ft. Worth. Candidate with 2 to 4 years of experience preferred.

The firm offers a negotiable salary, a bonus, and the opportunity to work on large matters for important clients, with early responsibility, in a highly active, but fun, environment. A resume, transcript, and writing sample are required. Submit to cvreply222@ yahoo.com.

AV-rated boutique downtown Fort Worth law firm specializing in estate planning, probate, tax, guardianship, and probate litigation seeking associate with three to five years experience in estate planning, probate, and closely held entities to assist in drafting estate plans, business re-structuring and transactional work. Some exposure to oil and gas issues and probate litigation a plus. Respond to Dallas Bar Association, Box 07-09B, 2101 Ross Ave., Dallas, TX 75201.

Energetic lawyer with passion? Share offices with established counsel and professional staff. Plenty of overflow business. Centrally located to three county seats. Tremendous opportunity for right person. Bring your staff and be ready to eat what you kill. E-mail resume, cover letter and any questions to reallawyer@charterinternet.com.

Mid-size, dynamic, AV-rated litigation law firm seeks bright, energetic associate attorney. 2 to 4 years of litigation experience and top 1/3 of class

MANDATORY. Great opportunity to grow with our firm. Excellent benefits. Compensation DOE. Fax (214369-8393) or e-mail (rosteen@tfandw. com) your resume only to Ms. Regan O’Steen. NO phone calls please. See our Web site at www.tfandw.com for more info.

Small firm seeking part-time contract lawyers with at least 6 years of experience in employment law, general business litigation, corporate work, and probate. Respond to Dallas Bar Association, Box 07-09C, 2101 Ross Ave., Dallas, TX 75201.

Paralegal – Recovery Team. ORIX USA Corporation is seeking a paralegal in our Dallas headquarters to assist in litigation efforts on a receivable/ judgment portfolio, working directly with law firms across the country.

Qualified candidates will have experience in collection law in multiple states and in civil litigation process from service of process to post judgment recovery in federal and state courts, as well as bankruptcy procedures. Excellent verbal/written communication skills and the ability to manage attorneys and their staffs with time sensitive matters are required.

Must also be able to multi-task and work well with others. FUNCTIONS include: (a) working with outside attorneys, paralegals and staff, (b) prepare retention packages and case/budget management, submit legal bills for payment, (c) cases will include legal research, domestications, garnishments, discovery, motion documents, executions, real-estate foreclosures by judgment creditor, Chapter 7,11,& 13 bankruptcy mainly from a creditor right’s prospective & responding to 3rd party litigation where ORIX is defendant, (d) organize and maintain case file updates utilizing Legal Files System and traditional legal file systems. SKILLS include: (a) quick learner, (b) excellent organizational skills, (c) understanding of general accounting, (d) solid analytical and critical thinking skills, (e) ability to

DVAP’s Finest Akash Sethi

Akash Sethi is a partner at Patton Boggs LLP, practicing in corporate finance, securities, and mergers and acquisitions. Since joining the firm in 2003, he has accepted 31 DVAP cases, involving drafting wills, healthcare powers of attorney and physicians’ directives for low-income clients. Akash has donated more than 350 hours to DVAP in the last six years. He finds that drafting estate-planning documents is a perfect pro bono opportunity for a transactional attorney. His secretary, Dawn Marsden, and many other staff members and associates at Patton Boggs also volunteer their time to draft documents and act as notaries and witnesses; this is among the many contributions the firm makes to the community. Akash’s work with DVAP has helped him learn more about an area of law that has been helpful to his family, and the experience has been extremely rewarding, he says. Thanks for all you do, Akash!

Pro Bono: It’s Like Billable Hours for Your Soul.

To volunteer or make a donation, call 214/748-1234, x3316.

A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).

work independently, plan well and take initiative to accomplish objectives in a timely manner, (f) flexibility, (g) requires occasional travel during first year. ORIX offers very competitive compensation and benefits with performance-based incentives in a dynamic, exciting, fast paced environment. Please forward your resume to mpickle@orix.com. Visit our website at www.orix.com.

Small AV-rated trial firm, Central/ Mockingbird, seeks contract or fulltime attorney with minimum 3 years commercial litigation and plaintiff personal injury experience. Good academics, writing skills, and research required. Send resume to mmerritt@ the-johnson-firm.com.

POSITION WANTED

Help for the solo and small firm practitioner. Outstanding research, writing and oral advocacy skills. Work experience includes business litigation, tort and insurance cases. Former judicial clerk, law review, appellate experience. Very competitive rates.

214-866-0026.

floor at Knox/Henderson & Central Expy to share with CPA or attorney.

Space includes administrative assistant, conference room, kitchen, telephones, high-speed DSL and copier.

Available January 1, 2010. Call Dana at 214-559-3690.

Move-in special. 3 months free rent in Preston Tower. 2 offices. Shared amenities (kitchen, conference room, reception area, private bath, copier). Call 214-369-1171 or e-mail herbhooks@ aol.com.

North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. One office (approx.

13.5 x 13.5) with built-in mahogany secretarial carrel (located in outer office area). Access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available. Please call Kristi at 972934-4100.

Attorney starting own practice with 4+ years experience in banking, real estate, and business entities seeks overflow work. Compensation variable based on other factors in arrangement.

E-mail inquiries to AndrewKJenkins@ gmail.com or call 214-886-6039.

Executive suites. All amenities bundled at one reasonable rate including conference, kitchen, high-speed Internet, T-1 phone rates, Internet fax, receptionist, 24/7 HVAC, 24/7 access, etc. Beautiful ‘A’ garden building in Richardson directly at the DART stop near 75 Central and Spring Valley. Current tenant roster is largely attorneys. 972-367-6540 or 972-367-6527.

OFFICE SPACE

SERVICES

Crescent – Fabulous space with view to share with litigation shop accommodating 1 to 3 lawyers. Giant conference room; elevator exposure and all infrastructure ready. E-mail inquiries to busch@buschmyers.com.

North Central – University Park area.

Penthouse of the Meadows Bldg., spacious window office, balcony. Share office with small AV-rated law firm.

Conference room/library, reception area, secretarial station, voicemail, copier, fax, high-speed Internet, covered parking and DART station available. Call Sandy at 214-363-6633.

CPA firm has corner office on 8th

Mexican Law Expert. Attorney/former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues – Mexican claims/defenses; personal injury; moral damages; forum non conveniens. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez 210-222-9494 / dlopez@ pulmanlaw.com.

FOR LEASE

Hunting lease. 500-acre pasture about 25 miles southeast of Wichita Falls near Henrietta, Texas. Waterfowl, doves, quails. Occasional deer and feral hogs. Lease begins in September.

Call Travis at 214-862-0552 for more information.

16 H e a d n o t e s l D a l l a s B a r A ss ociation

Focus

Jul y 2009

Intellectual Property Law

Women Patent-Holders: 200 Years of Innovation

by Sherry Talton

T

his year marks the 200th anniversary of the first patent awarded to a woman in the U.S. In 1809, Mary Kies invented a process for weaving straw with silk or thread that made manufacturing work bonnets more cost-effective. In fact, First Lady Dolley Madison honored Ms. Kies for boosting the nation’s hat industry.

Although the Patent Act of 1790 allowed inventors to obtain a patent to enforce their rights, various legal, cultural, economic and educational barriers initially prevented women from patenting their inventions.

The Lady Edisons

Early industrial-era women were inventive by necessity. One of those women, known only as “Mary S.” of St. Louis, was both a genius and impoverished. Mary’s father was a talented inventor and a chronic drunk.

She inherited his skill for invention but lacked confidence. Not having the support and education that men of her time had, she sold one very valu-

able mechanical invention to a male attorney because she believed that “if it had been known the invention of a woman, it would have been regarded as a failure.” The lawyer paid Mary $5 and then enjoyed “grand financial success” after patenting it in his name. Ultimately, Mary sold at least 53 patents to men who earned untold riches, but she died a pauper.

In 1875, Mary met a women’s suffragist named Charlotte Smith.

Shocked by Mary’s plight, Ms. Smith became a champion of female inventors. In 1891, Ms. Smith established a magazine called The Woman Inventor to support innovative women because Mary had “implored me before she died to see that in the future justice was done to women inventors.”

Ms. Smith also convinced the PTO to publish an official List of Women Patentees, which is the primary source of information on 19th century female inventors, who were then dubbed “Lady Edisons.”

The woman most often described as “The Lady Edison,” Beulah Henry, held 49 patents and invented at least

110 technologies, including the vacuum ice cream freezer; an umbrella with removable cloth covers to compliment dresses; a sewing machine with no bobbin; the “Protograph,” which made four copies of a document from a typewriter; continuously attached envelopes; soap-filled sponges; a doll with eyes that closed and changed colors; and many more interesting devices.

Margaret Knight has 22 patents and approximately 90 inventions to her credit, including the first machine to make the square-bottomed paper bags that are still used occasionally in grocery stores today.

Helen Augusta Blanchard obtained at least 28 patents relating mostly to improvements to sewing machines, one of which is on display at the Smithsonian’s Museum of American History.

Other Great Inventions

by Women

Not all inventions by women were domestic novelties. Gertrude B. Elion

Jones Day ‘Lends Lawyers’ for Pro Bono

by Darlene Hutchinson Biehl

N

early 1,000 Dallas lawyers will donate their time to pro bono legal services in a calendar year, but still the need is so great. Nearly 400 families who meet the low-income requirements will not receive the legal aid they seek this year because of a lack of resources.

Dallas law firms are working to fill the gap. Jones Day is offering the services of associate Sean M. Whyte for three months during the summer, as he works fulltime in the Main Street legal aid office for the Dallas Volunteer Attorney Program.

In 2005, Weil Gotshal & Manges and DVAP launched the Lend-A-Lawyer program.

Since then, lawyers from Weil Gotshal & Manges and Jones Day have eagerly Sean Whyte participated. For 90 days, the firm pays an attorney’s normal salary and benefits, while that lawyer dedicates 100 percent of their work day to meeting the civil legal needs of our community.

DVAP provides the lawyer with office space, training and support services.

“Lend-A-Lawyer is an incredible program that not only benefits the community, but it also gives associates valuable experience as they interview clients, build case files, and spend time in court,” according to DBA President Christina Melton Crain. “Simultaneously, these lawyers witness the needs of our community firsthand.

Certainly, the lawyers who participate in this program – as well as their firms – have reaped immeasurable benefits.”

Mr. Whyte’s practice at Jones Day includes civil litigation, including the defense of toxic tort, intellectual property and securities cases. A 2004 graduate of the University of Texas School of Law, Mr. Whyte’s cases during these summer months have ranged from family law to commercial law. He represented a man who had prosecuted his own commercial case for eight months pro se in justice court. After a jury trial was scheduled, the client sought assistance from DVAP, and with Mr. Whyte’s assistance, the client won.

Thanks to the Lend-A-Lawyer pro-

gram, Mr. Whyte has “enjoyed being able to level the playing field for people who were previously pro se in cases where the opponent had counsel.”

Additionally, Mr. Whyte has interviewed applicants at DVAP’s clinics in South Dallas, East Dallas, Garland, and at its wills clinic.

“Many of the associates at Jones Day

Mandy Childs

have said they would jump at the chance to devote three months representing pro bono clients at DVAP because so many of the firm’s associates have a strong commitment to pro bono,” he added.

In the fall of 2008, Jones Day offered the services of Mandy Childs, a litigation associate. During her three-month LendA-Lawyer tenure, Ms. Childs handled 27 cases at various stages of litigation, including pleading, discovery management, dispositive motion practice, settlement negotiation and mediation, trial preparation and trial.

Ms. Childs says that the highlight of her time in the DVAP Lend-A-Lawyer program was helping reunite a mother with her kidnapped child. Although her term with the Lend-A-Lawyer program has ended, she continues to be actively involved with DVAP, where she represents pro bono clients in various civil matters, as well as helps staff the South Dallas, proveup, and wills and trusts clinics.

“We appreciate the opportunity that DVAP affords both us and our talented young lawyers,” said George Manning, Jones Day managing partner. “As professionals we understand that we are in a unique position to learn more about our community and to give back in a variety

of ways. DVAP has allowed Mandy and Sean wonderful opportunities to not only assist the underserved of Dallas, but to gain significant in-court experience on matters of consequence to individuals and their families.”

Assisting those who are at or below 125 percent of the federal poverty level, DVAP is a joint pro bono program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Established in 1997, the program recruits, trains and supports attorneys in their efforts to provide free legal aid to the poor.

Other Dallas-area firms are encouraged to “lend” a lawyer to DVAP. For more information on this program, contact Alicia Hernandez at ahernandez@dallasbar.org. HN Darlene Hutchinson Biehl serves as the DBA communications/media director.

patented a leukemia-fighting drug called 6-mercaptopurine and has a total of 45 patents. Grace Hopper developed COBOL, the first widely used high-level programming language for business applications.

In 1966, Stephanie Louise Kwolek patented a synthetic fiber based upon research for the DuPont Company.

That fiber, now known as Kevlar, is extremely lightweight, five times stronger than steel, and does not corrode or rust. Its use in bullet-resistant vests is credited with saving the lives of thousands of law enforcement officers and military personnel. She was inducted into the National Inventors’ Hall of Fame.

Stars On & Off the Screen

Hollywood has also had its fair share of inventors. Lillian Russell, an actress of the early 1900s, patented a combination dresser/trunk that served as luggage, storage and a portable dressing room.

Hedy Lamarr, who first became famous for appearing nude in a Czech film in 1933, became a huge MGM star who made about 20 films between 1938 and 1949, including Algiers, Boom Town and Tortilla Flat. In the midst of her film career, she patented a frequency-switching communication system that guided torpedoes and helped the Allies defeat the Germans in World War II. That system is now considered the basis for modern satellite communications.

Julie Newmar, the former Catwoman, patented “Nudemar,” which was a novel design for sheer and snug pantyhose. Stephen Spielberg’s company later produced a well-known film called To Wong Foo: Thanks for Everything, Julie Newmar.

So this year, as we use our dishwashers, brassieres, Scotchguard, disposable diapers and windshield wipers, we should reflect on the women from all walks of life who followed Mary Kies’ footsteps to patent inventions that have forever changed our HN world.

Sherry L. Talton is an attorney in Dallas, and a member of the DBA Publications Committee. She can be reached at sherrytalton@gmail.com.