Dallas Bar Association
HEADNOTES Focus Tort & Insurance Practice
June 2016 Volume 41 Number 6
Bar None Presents Straight Outta Uptown: The World’s Most Dangerous Lawyers BY MICHELLE M. ALDEN
Join the cast and crew of Bar None June 15-18 as they present Bar None XXXI – Straight Outta Uptown: The World’s Most Dangerous Lawyers. This is the 31st year for the Bar None variety show and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance, and make you laugh so hard your sides hurt. As much as the cast and crew love performing and making people laugh, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation. The Hughes Scholarship provides tuition and fees for deserving minority students each year. Students at SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M School of Law are eligible to apply for the scholarship. The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you have ever met a Hughes Scholar, you know how impressive these
students are. Support them by coming to Bar None. Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex including 31-year-veteran Director Martha Hardwick Hofmeister and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors, and numerous behind-the-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 15-18. To purchase tickets, visit www.barnoneshow.com, or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar.org for sponsorship and ticket information. HN Michelle Alden is the Managing Attorney of the Dallas Volunteer Attorney Program and a Member of the Marketing Committee of the Bar None Production Company. She can be reached at aldenm@ lanwt.org.
DBA to Dedicate Two Habitat Houses STAFF REPORT
Every year, for the past 24 years, the Dallas Bar Association has raised funds for, and built, an entire home for a family in need. The DBA is the longest running wholehouse sponsor in Dallas. This year marks our 25th anniversary, and to highlight that milestone, we partnered with AT&T to build not one, but two Habitat homes. The second home is already fully funded, thanks to the generosity of AT&T, through its Senior Executive Vice President and General Counsel David McAtee, and the work of DBA President Jerry Alexander and DBA First Vice President Michael Hurst. The additional home was funded by DBA members, firms, and other organizations that support this life-changing program. Both homes, which are located near each other at 2031 Nomas Street and 2015 Nomas Street,
Focus
Dallas, will be dedicated on Saturday, June 11, at 9:00 a.m. All members are welcome to join us as we help present these homes to two deserving families who have worked alongside us to build their new homes—the Reh Meh family consists of Pray and Len and their children Poe, Pray, and Nga; and the Campos family, which consists of Jose and Fancisa and their children Danilo, Darwin, and Angelique. The DBA Home Project Committee coordinates the build and is led by co-chairs David Fisk, of Kane Russell Coleman & Logan PC, and Ethan Minshull, of Wick Phillips. If you still need to make your charitable donation, please make the donation payable to Dallas Area Habitat for Humanity and send to DBA Home Project, ATTN: Yedenia Hinojos, Dallas Bar Association, 2101 Ross Avenue, Dallas, Texas 75201. HN
Tort & Insurance Practice
Collaborative Law Strategies for the Insurance Defense Practice BY DWAYNE J. HERMES AND ERICA R. LAY
Although collaborative law has traditionally only been utilized in the family law context, there are opportunities to adapt the collaborative law framework for an insurance defense practice. In the insurance defense context, collaborative law can be utilized as a means of reducing the cost of litigation. Regular reporting to the insured and carrier that includes analysis of whether collaborative law is an option is a method of demonstrating to the carrier the firm’s ability to achieve resolutions creatively and in a way that furthers objectives of all involved. According to the 2015 Claims & Litigation Management Alliance Litigation Management Study General Report, risk industry executives indicated that they wished their panel
firms did a better job of demonstrating creativity, focusing more on resolution, and utilizing non-discovery and nontraditional methods. Simply put, carriers are looking for defense firms to ‘think outside the box’ in achieving resolutions. This is where collaborative process comes into play. The goal of this article is to share a few strategies for adapting the collaborative law framework for an insurance defense practice. The process described is a robust version that can be modified based on the particular case. The first step is to educate the insured and the carrier regarding the collaborative process. Make sure that the insured and the carrier agree to expectations of conduct and sign the participation agreement. If they are unwilling to sign the participation
continued on page 10
Inside 5
Fine Art Insurance – A Horse of a Different Color
11
New Damages Law with Total Destructions
13
DBA Pro Bono Golf Tournament
17
Mass Torts 101 for Smarties
Register now for the SBOT 2016 Annual Meeting The 2016 State Bar Annual Meeting is in Fort Worth, June 16-17. For more information and to register, visit www.texasbar.com/annualmeeting.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2016
Calendar June Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS JUNE 3-BELO Noon
“Contingency Fee Agreements—Ethics and Enforceability,” Dan Sheehan. (Ethics 1.00)* RSVP to kzack@ dallasbar.org.
Remediation Standard Applies?” Andrew Stakelum. (MCLE 1.00)*
WEDNESDAY, JUNE 22
Health Law Section “Maximizing Your Mediation,” Jay C. Zeleskey. (MCLE 1.00)*
Noon
JUNE 10-NORTH DALLAS**
Library Committee
Noon
Pro Bono Activities Committee
“Using Turnovers and Receiverships to Collect Debts and Judgments,” Michael Bernstein. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.
JUNE 17-BELO Noon
“Presentation of Evidence: Tips, Techniques and Common Pitfalls,” Hon. Jim Jordan. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
WEDNESDAY, JUNE 1 Noon
Employee Benefits & Executive Compensation Section “Requirements and Challenges in Establishing Wellness Programs,” Virginia Mimmack and Henry Talavera. (MCLE 1.00)* Solo & Small Firm Section Topic Not Yet Available Minority Participation Committee “Networking Series Part II: Building Your Brand Through Speaking & Writing.” (MCLE 1.00, Ethics 0.25)* RSVP to ahernandez@ dallabar.org.
DAYL Assisting Lawyers in Transition Committee 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Noon
CLE Committee Publications Committee
Family Law Section Board Meeting 2:00 p.m. Law Student Professionalism Program “A Program for Law Students & Recent Law Graduates,” Keynote speaker: Hon. Tonya Parker. Additional speakers: Darrian Campbell, Stephanie Gause, Justice Douglas S. Lang and Frank Stevenson. (MCLE 3.00)* RSVP to ahernandez@dallasbar.org. Sponsored by Morris Harrell Professionalism Committee.
Friday Clinic—North Dallas** “Using Turnovers and Receiverships to Collect Debts and Judgments,” Michael Bernstein. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.
Minority Clerkship Luncheon Learn about the broad range of opportunities in Dallas. Speakers: Dimitri Dube, Jennifer Salim Richards, Ashlie Alaman Stamper, Emmanuel Urbinas, and Glen Hill, moderator. RSVP to bavina@dallasbar.org.
Friday Clinic—Belo “Contingency Fee Agreements—Ethics and Enforceability,” Dan Sheehan. (Ethics 1.00)* RSVP to kzack@dallasbar.org.
DAYL Freedom Run Committee
7:30 p.m. Bar None XXXI: Straight Outta Uptown at Greer Garson Theatre, SMU Campus. www. barnoneshow.com.
Noon
Friday Clinic—Belo “Presentation of Evidence: Tips, Techniques and Common Pitfalls,” Hon. Jim Jordan. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
SATURDAY, JUNE 18 8:00 p.m. Bar None XXXI: Straight Outta Uptown at Greer Garson Theatre, SMU Campus. www. barnoneshow.com.
Tax Law Section “Federal Transferee Liability Related to Estate and Gift Taxes,” Bill Elliott. (Ethics 1.00)*
Peer Assistance Committee
TUESDAY, JUNE 14 Noon
Business Litigation Section “Tips for the Business Litigator on Expedited and Extraordinary Relief,” Aaron Tobin and Sara Witmeyer. (MCLE 1.00)* Franchise & Distribution Law Section “Arbitrating Franchise and Distribution Law Disputes: Practice Points from Start to Finish,” Jay Allen and Greg Dimmick. (MCLE 1.00)*
6:00 p.m. DAYL Board of Directors
WEDNESDAY, JUNE 8
Intellectual Property Law Section “Ethical Landscape in PTAB Practice,” Gregory Huh and Thomas Kelton. (Ethics 1.00)*
MONDAY, JUNE 27 Noon
8:00 p.m. Bar None XXXI: Straight Outta Uptown at Greer Garson Theatre, SMU Campus. www. barnoneshow.com.
Securities Section “Trends in Securities Litigation,” Vanessa Beckstrom, Saleema Damji and Marissa Wilson. (MCLE 1.00)* DAYL Solo & Small Firm Committee
TUESDAY, JUNE 28 Noon
American Immigration Lawyers Association DAYL Lawyers Promoting Diversity
MONDAY, JUNE 20
WEDNESDAY, JUNE 29
Noon
Noon
Labor & Employment Law Section “NLRB and Employee Handbooks: Making Sure Your Clients Comply with Ever-Changing Agency Guidance,” Mike Birrer. (MCLE 1.00)*
DAYL Assisting Lawyers in Transition Program DAYL Equal Access to Justice Committee Municipal Justice Bar Association
TUESDAY, JUNE 21
THURSDAY, JUNE 30
Noon
Noon
International Law Section “The Use of International Treaties in Texas Practice,” Prof. Paul George. (MCLE 1.00)* DAYL Elder Law Committee
6:00 p.m. Dallas Hispanic Bar Association
DAYL CLE Committee
FRIDAY, JULY 1 No DBA Events Scheduled
BENCH BAR CONFERENCE
Alternative Dispute Resolution Section “Mediation Security in an Open Carry World,” Brian Harpole and Greg Shaffer. (MCLE 1.00)* Real Property Law Section “Recent Developments in Construction Law,” Jason L. Cagle. (MCLE 1.00)*
FRIDAY, JUNE 24 Noon
MONDAY, JUNE 13
MONDAY, JUNE 6
Just a Few of the CLE topics: x
What We Learned From the O.J. Simpson Trial
x
State Judges Panel
x
Status of the Dallas Jury: What Are They Thinking?
x
Federal Magistrate Judges Panel
x
Social Media and the Cloud
Thursday, September 29– Saturday, October 1
Legal Ethics Committee
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
DAYL Business & Career Development Committee
11:30 a.m. House Committee Walk Through
DAYL Debt Reduction Program
Family Law Section “Business Valuations in Texas Family Law – Dilemma(s) for Attorneys, Attorneys’ Clients, and Trier of Fact,” R. Scott Downing and Robert P. Gray. (MCLE 1.00)*
1:00 p.m. DWLA Board of Directors Meeting 3:30 p.m. DBA Board of Directors Meeting
Noon
Trial Skills Section/TIPS “Medical Malpractice is Not Dead: Candid Conversation with Plaintiff’s Counsel, Defense Counsel and the Judiciary,” Robert Greening, Jennifer King, Kirk Pittard, Pamela Sieja, Caleena Svatek, and Hon. Martin Hoffman, moderator. (MCLE 1.00)
FRIDAY, JUNE 3
Noon
Federal Bar Association
DAYL Animal Welfare Committee
6:00 p.m. J.L. Turner Legal Association
Judiciary Committee “Applying the Law When There Isn’t Any: Challenges Facing Today’s Family Courts,” Hon. Dennise Garcia and Hon. Tena Callahan. (MCLE 1.00)*
Corporate Counsel Section “Crisis in the Oil Patch: Restructuring Hot Topics,” Eric M. English and John F. Higgins. (MCLE 1.00)*
DWLA General Meeting “Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World,” Linda Hirshman.
Christian Legal Society
DAYL Lunch & Learn CLE
Noon
Noon
Dallas Gay & Lesbian Bar Association
Minority Participation Committee
FRIDAY, JUNE 17
Noon
TUESDAY, JUNE 7
Environmental Law Section Topic Not Yet Available
Appellate Law Section “Litigating as the Texas Solicitor General,” Scott Keller. (MCLE 1.00)*
Christian Lawyers Fellowship
FRIDAY, JUNE 10
Noon
Noon
Criminal Law Section “Criminal Justice Reform in Dallas County,” Dallas District Attorney Susan Hawk. (MCLE 1.00)*
DAYL Wellness Program
THURSDAY, JUNE 2
Summer Associates Pro Bono Luncheon Speakers: Jeremy D. Aleman, Sam Peca and Hon. Craig Smith. (MCLE 1.00, Ethics 0.25)* To RSVP, email vallejod@lanwt.org. Sponsored by DVAP and the DBA Pro Bono Activities Committee.
Noon
THURSDAY, JUNE 16
Government Law Section “Representing Governmental Bodies at Trial,” Jason Schuette. (MCLE 1.00)* Transition to Law Practice Committee “Managing Your Career,” Stephanie Gause, Bill Holston and Emmanuel Obi. (MCLE 1.00)*
DAYL Judiciary Committee
Noon
THURSDAY, JUNE 23
7:30 p.m. Bar None XXXI: Straight Outta Uptown at Greer Garson Theatre, SMU Campus. www. barnoneshow.com.
THURSDAY, JUNE 9
Public Forum Committee
Construction Law Section “Venerable or Viable - Recent Developments in Subcontractor Default Insurance,” Rodney Moss. (MCLE 1.00)*
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Bench Bar Conference Committee
Juvenile Justice Committee
5:30 p.m. Bankruptcy & Commercial Law Section “What the Kardashians Can Teach Us About Bankruptcy,” panel of DFW Association of Young Bankruptcy Lawyers moderated by Michael Cooley. (MCLE 1.00)*
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
DAYL Foundation Board Meeting Non-Profit Law Study Group
Sports & Entertainment Law Section “Have Your People Call My People: Common Legal Issues When Hiring Talent,” Trish Avery, John Kolinofsky, Adam Litwin and Linda McAlister. (MCLE 1.00)*
WEDNESDAY, JUNE 15 Noon
Energy Law Section “Environmental Oilfield Disputes: What
REGISTER NOW for the discounted EARLY BIRD RATE!
www.dallasbar.org or 214-220-7403 Events/Activities: Plan to Stay Friday Night! Sporting Clays, Game Plan, Golf, Tennis, Yoga and more! More than 7 hours CLE, including 1.00 hour ethics. | Casual Attire Only!
June 2 0 1 6
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2016
President's Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Are There Too Many Lawyers? As we continue our talk about legal legends and myths and their basis or lack thereof, let’s move on to the question “Are there too many lawyers?” I, for one, have never understood that question. Too many lawyers for what? The better question would be, “Are there more lawyers than are necessary to fulfill the legal needs of the community which they attempt to serve?” The answer to that question would be impossible to find, or at least impossible to find for purposes of writing this article, but there can be a comparison made between the number of lawyers who have practiced in this “Dallas Community,” historically, and the number of lawyers that are trying to do so now.
Dallas was 904,000. In 2010, while the number of members of the Dallas Bar Association had more than doubled to 10,307, the population of the city of Dallas had only grown around 30 percent to 1.2 million. The comparative growth rates from 2010 to the present are much closer or even approximately the same. In 2016 there are now 11,388 members of the Dallas Bar Association, approximately a 10 percent increase from 2010, and the City of Dallas added approximately 100,000 more people to 1.3 million, approximately an 8.5 percent increase from 2010. The Liberal Arts Math totals would be: While the number of lawyers has increased 2-1/2-fold from 1980 to the present, the population of the City of Dallas has only increased about 44 percent. Remember, that is only for the City of Dallas.
“Liberal Arts Math”
DPI Metroplex
BY JERRY C. ALEXANDER
This exercise, however, takes us down a dangerous path that I call “Liberal Arts Math.” Liberal Arts Math is inexact, at best, and takes different data from different sources, mixes them up with a lot of words of explanation, and sometimes comes to a conclusion. (It is the same thing that economists do in big antitrust cases and charge a lot of money for!) I am not sure, though, that this gets to the answer. However, there is a prevailing perception that relatively speaking, there are more lawyers now trying to serve the Dallas Community than there have been historically. Here is the Liberal Arts Math analysis of that perception. The problem, as far as available data are concerned, is that the City of Dallas itself, i.e. within the city limits, simply has not grown very much. When the number of lawyers in the Dallas Bar Association is compared to the population of the City of Dallas, the conclusion is easy to draw that there are too many lawyers, or, certainly more lawyers percentagewise competing for business in the Dallas Community than were previously trying to serve that community. To the last point, in 1980 there were 4,500 members of the Dallas Bar Association and the population of the City of
Bring Your Summer Clerks to Belo Learn about the broad range of opportunities in Dallas. Law Student Professionalism Program (MCLE 3.00) Thursday, June 2, at 2:00 p.m. RSVP to ahernandez@dallasbar.org Speakers: Darrian Campbell, Stephanie Gause, Justice Douglas S. Lang, and Frank Stevenson Keynote speaker: Hon. Tonya Parker
However, the Dallas Community that Dallas lawyers serve is much more than just the City of Dallas. If one looks at the population growth in the “DPI” Metroplex (Dallas/Plano/ Irving), the population number goes from a little over a million in 1980 to 4-1/2 million in 2016, an increase of roughly four-fold! While it is true there are some lawyers in Collin County who are not members of the Dallas Bar Association (and an even lesser number of Irving lawyers who are not members), the Dallas/Plano/Irving “DPI” is the “Dallas Community” serviced by the Dallas attorneys. To a large extent, there is also legal work in other surrounding counties serviced by Dallas lawyers. Therefore, insofar as just the number of people is concerned, the lawyers increased 2-1/2-fold from 1980 to 2016, the number of people increased four-fold. This also does not take into account the corporate population, probably the largest total payor of legal fees in this area. Corporations and businesses of all legal forms have increased greatly in the area served by the attorneys of the Dallas Bar Association during this same 36-year period (1980 to 2016).
Conclusion As with any exercise in Liberal Arts Math, the conclusions reached are not scientific nor exact, but the following is apparent. It simply does not seem to be the case that at least since 1980, anyway, that there has been an oversupply of lawyers serving the Dallas Community compared to the 1980 ratios. There is absolutely a separate question of whether or not the 1980 ratios were already at oversupply, but that answer would most likely be, “probably not.” Nor is it likely that the lawyers who were practicing in 1968, whatever those ratios, were enjoying a time of over-demand or that their practicing law, financially, was easier then than it is now. The concept and the constant complaint that more lawyers are coming to this area than new people or new businesses, while a persistent one, is probably not the case. We simply cannot wait for things to “get better” or return to the “good ole days” because our days now may actually be the same as the “good ole days.” So here’s to today, the future, and the “good ole days.” See you at the Belo. HN Jerry
Minority Clerkship Luncheons Friday, June 10 and July 8, at Noon. RSVP to bavina@dallasbar.org June 10 Speakers: Dimitri Dube, Jennifer Salim Richards, Ashlie Alaman Stamper, Emmanuel Urbinas and Glen Hill, moderator.
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: Jerry C. Alexander President-Elect: Rob D. Crain First Vice President: Michael K. Hurst Second Vice President: Laura Benitez Geisler Secretary-Treasurer: Sakina Rasheed Foster Immediate Past President: Bradley C. Weber Directors: A. Shonn Brown, Hon. Rob Cañas, Jonathan Childers, Dawn Estes, Rocio Cristina Garcia (President, Dallas Hispanic Bar Association), Stephanie Gause (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Krisi Kastl, Bill Mateja, Karen McCloud, Kate Morris, Cheryl Camin Murray, Emmanuel Obi (President, J.L. Turner Legal Association), Monika Sanford (President, Dallas Asian American Bar Association), Diane M. Sumoski, Robert L. Tobey (Chair), Aaron Tobin (Vice Chair) and Victor D. Vital Advisory Directors: Christopher Kang (President-Elect, Dallas Asian American Bar Association), Angelina LaPenotiere (President-Elect, Dallas Hispanic Bar Association), Tramaine Scott (President-Elect, J.L. Turner Legal Association), and Paul Simon (President-Elect, Dallas Association of Young Lawyers) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Wm. Frank Carroll, Leon Carter, John Jansonius, Florentino A. Ramirez and Scott Stolley
HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Meghan Hausler and Keith Pillers Vice-Chairs: Alexander Farr and Carl Roberts Members: Timothy Ackermann, Logan Adock, Jerry C. Alexander, Wes Alost, Jason Bloom, Andrew Botts, Charles Coleman, Shannon Conway, Jess Davis, James Deets, Leiza Dolghih, Dawn Fowler, Susan Halpern, Jeremy Hawpe, Mary Louise Hopson, Lindsay Hedrick, Brad Jackson, Andrew Jones, Kristi Kautz, Amanda Kelley, Michelle Koledi, Kevin Koron-ka, Susan Kravick, Lawrence Maxwell, R. Sean McDonald, Tyler Mendez, Terah Moxley, Jessica Nathan, Eugene Ol-shevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Kathy Roux, Jared Slade, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Ashely Swenson, Michael Tristan, Pryce Tucker, Peter Vogel, Suzanne Westerheim, Yuki Whitmire DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins Program Assistant: Patsy Quinn Secretary: Ellie Pope
Summer Associates Pro Bono Luncheon (MCLE 1.00, Ethics 0.25) Friday, June 3, at Noon. RSVP to vallejod@lanwt.org Speakers: Jeremy D. Aleman, Sam Peca, and Hon. Craig Smith
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
Dedication of DBA’s 25th & 26th Habitat for Humanity Houses Saturday, June 11, 9:00 a.m. 2301 Nomas Street and 2015 Nomas Street, Dallas Please join us as we turn over the keys to the homeowners—the Campos and Rey Meh families.
Copyright Dallas Bar Association 2016. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publica-tion. 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 nec-essarily 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.
June 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Tort & Insurance Practice
Fine Art Insurance – A Horse of a Different Color BY JAMIE K. BAKER AND LINDSEY SHINE LAWRENCE
While it is common knowledge that insurance is needed to protect property, many may not realize that insuring fine art involves unique risks and coverage considerations. Fine art insurance is used by museums, galleries, and notable collectors. It may also be used by anyone interested in protecting the value of unique property. This article addresses some of the reasons why fine art insurance is distinct from a typical homeowner’s policy. Fine art insurance provides protections that may make all the difference when a specialized loss occurs. A standard homeowner’s insurance policy provides limited coverage for home and contents, plus finite general liability. It typically covers named perils, restricts coverage for fine art under personal property limits, and requires the application of a deductible. Standard homeowner’s policies typically do not protect fine art against certain causes of loss or for the full value of the artwork. Homeowner’s insurance generally restricts coverage for losses away from the home, which creates real problems for fine art that is damaged while on loan or in transit. The fine art policy (“valuable articles” policy) is an “all risk” property/ casualty contract that provides much broader coverage for artwork than the standard homeowner’s policy. Generally, fine art insurance covers losses from theft, breakage, fire, water, and damage to art in transit or on loan without application of a deductible. Fine art poli-
cies also include costs of expert restoration that are not included in a standard homeowner’s policy. Art losses can happen anywhere. A well-known Vegas casino magnate put his elbow through a Picasso while it was hanging in his own office. Homeowner’s policies usually cover artwork only up to personal property limits and for actual cash value. If an artwork is “scheduled” (specifically listed in a rider), there may be a specific maximum amount the homeowner’s carrier will pay in case of loss. In contrast, fine art insurance is generally based on an appraised retail replacement value of the piece; it may even allow for a market value increase up to 150 percent that serves as a builtin cushion in the event of loss. Unlike a homeowner’s policy, art appraisals are essential to substantiate loss valuation for a fine art policy. Given the fluctuating nature of the art market and skyrocketing values for particular artists and genres, an appraisal at policy inception, and then a renewal appraisal every few years, may significantly impact coverage and recovery on a loss. Updated appraisals ensure appreciation is covered in a rising market, unneeded coverage is not purchased in a falling market, and that owners have reliable valuation evidence in the event of loss. Take the cautionary tale of a Rothko owner who insured the painting for $3 million but failed to update the appraisal. When a water leak ruined the painting ten years later, the painting’s value had jumped to $18 million. Unfortunately, the policy only provided $3 million in coverage pursuant to the outdated appraisal of record.
Claims handling is another key issue setting fine art insurance apart from homeowner’s insurance. Carriers offering fine art coverage often employ adjusters with expertise in handling art losses and who have access to specialized resources for valuation and restoration. Anyone can Google the replacement value of a broken window pane. The same is not true with regard to the value of a damaged Warhol. There are deluxe “private group” homeowner’s polices that offer coverage similar to fine art policies, although they can be expensive and sometimes difficult to navigate. Valuation difficulties may arise if the homeowner’s carrier does not have knowledgeable adjusters. In such cases, appraisals evidencing recent market values are especially important.
and at the settlement table. “She’s a fearless contender in the courtroom,” says Aubrey Connatser. “Abby is so smart and hard-working that she instills great confidence in her clients with her intense preparation and skill.” To retain Abby Gregory for a family law matter, call 214 306-8441 or email abby@connatserfamilylaw.com.
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com
Jamie K. Baker is of counsel and Lindsey Lawrence is a senior attorney at Thompson Coe. They can be reached at jbaker@thompsoncoe.com and llawrence@thompsoncoe.com, respectively.
Excerpt from the Texas Lawyers Creed Find the complete Creed online at http: //txbf.org/texas-lawyers-creed/.
“...A FEARLESS CONTENDER IN THE COURTROOM...” Princeton grad is the iron fist in a silk glove in family court
An Art Law Study Group has been formed for attorneys interested in discussing art law issues and serves as a legal resource for the Dallas arts community. For more information on the group and upcoming events, contact Andrea Perez at aperez@ kesslercollins.com. HN
I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
Trained in Collaborative Law Aubrey M. Connatser, PLLC
Even-tempered with a calm demeanor, the Hockaday and
Calling All Art Enthusiasts:
Professionalism Tip
ABBY GREGORY
ABBY GREGORY IS A PLEASANT SURPRISE FOR CLIENTS.
Homeowner’s and fine art coverage varies from company to company and form to form. Shop around for the risks to be covered, make sure to understand the contents of your policy, and remember to keep the appraisal up to date.
6 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2016
DBA Athletic Director
Fitness as Team Building, Part I BY KENNETH G. RAGGIO
Most lawyers spend at least as much time at the office or dealing with their “day job” activities as with any other activity in their daily lives. It make sense to have that block of one’s time as enjoyable as possible. And many have used fitness to strengthen the bonds between individuals sharing that part of life, which can be called your “legal team.” The book Younger Next Year contains author Chris Crowley’s seven rules; the first rules are about exercise, etc. Rule six is: Care. Rule seven is: Connect and Commit. Chapter 17 of the book stands for the proposition that if we do not care, we are making a huge mistake that puts us back
For years, Strasburger & Price, LLP (photo 1) has put together a team of firm members who travel to Oregon each summer to run the Hood to Coast Relay. Strasburger’s “Lawyers on the Lam” relay team has 12 runners doing multiple legs in the 200 mile relay, which is the largest and longest relay race in the world. Since 2010, more than 40 Strasburger attorneys, their friends and family—as well as a group of clients who have become friends—have taken to the road for fun, fitness, and fundraising. All of the runners maintain a rigorous training regimen to prepare for the race. The team’s fitness goals are just one aspect of Strasburger’s wellness initiatives, which range from a formal wellness program to subsidizing healthy snacks in the office.
those with Medicare cards—and all are still reasonably, if not more, fit. The SBOT still sponsors Basketball and Softball leagues; perhaps there will be some new ones featured in Part II. Another example of fitness as team building is the arcane sport (?) of stair racing. (Or is it cruel and unusual punishment?) A couple of times each year, there are races organized to benefit the various charitable organizations. In these races, the participants walk (or double step) up the stairs in buildings such as the Bank of America Tower—70 stories and 1254 steps. It is hard. Some call it a vertical marathon; while such a description may underappreciate the commitment and fortitude necessary to undertake a marathon, it recognizes that pulling your body weight up 900
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on the slope of continual life decline that vigorous physical exercise routine was meant to forestall. “Caring means caring about other people and being involved with them. . . . Acting like the pack animals we are, right to the end,” the book says, continuing the explanation in earlier chapters that biologically we are not much different from other animals. And that we need to act like it. We can combine our “day job” with caring and fitness. This column and the upcoming June column feature several examples of caring and committing.
Another example that caring and committing demonstrates a lifelong benefit of participating is an athletic team activity. Photo 2, which appeared in the Texas Bar Journal some 35 years ago, shows the State Bar of Texas (SBOT) state champion football team, which just happens to be from Dallas. This particular team was not from the same firm. But the guys in the picture will tell you that the commitment of competing for the team was a commitment to the others and that caring has formed lifetime friendships. Virtually everyone in the picture is still practicing in Dallas—even
feet in 11 minutes—or 25 minutes—is a HUGE accomplishment. Stair races really tell you how good your quads, lungs, and heart are. (Younger Next Year has a box in Chapter 10—“Default to Quads”— reminding us that fit quadriceps—the largest muscle in the body—is the key to staying out of strollers and wheelchairs). One needs to train to do a stair climb. And the firms of Andrews Kurth (photo 3) and Goranson Bain (photo 4) formed teams to do just that. Led by Aimee Pingenot Key, Goranson Bain runners—and other firm members
who do not compete in the race—regularly walk up the 14 flights of stairs in their building at Campbell Center. The team— and other members of the firm—even eat healthy meals together regularly, and, like Strasburger, the firm emphasizes healthy snacks. A good job of combining fitness with esprit de corps. The DBA is your TEAM—or at least one of your teams. To show that we are all on the same team when it comes to fitness, the DBA has arranged for members who wish to try out one of the leading gyms in the area—the LA Fitness Signature Club at Cityplace—to have a two-week complimentary membership. It is a really good gym. So is the downtown YMCA, and most of the suburban Y’s, which will also offer DBA members a one-week free trial
including no joining fee the entire month of June. Due to the issues of non-DBA members getting wind of the offer, we have agreed to screen and aggregate them. If you are interested in finding out more about the free trial memberships, email fitness@dallasbar.org and we will fill you in on the details. Look for more information and additional legal team spotlights in the June issue, Fitness as Team Building, Part II. HN Kenneth G. Raggio is a partner at Raggio & Raggio, P.L.L.C. and can be reached at kenneth@raggiolaw.com.
A multi-office national law firm is seeking Attorneys for its Dallas Office. Litigation department is looking for Attorneys in the following areas: Professional Liability Defense, General Liability, Workers Compensation Defense, Construction, and Employment Liability Defense. Corporate Law, Commercial Litigation and Financial Services departments are looking for Attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus. Also seeking 1-4 year Associates. Email resume to RESUME@QPWBLAW.com
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D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2016
2016 DBA 100 CLUB - Get on the LIST! The Dallas Bar Association would like to recognize the following Firms, Government agencies, Organizations and Corporate legal departments for their support of the DBA along with their commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club is a distinguished membership recognition category that consists of Firms, Law Schools, Organizations and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition is given to the 2016 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs each year, networking opportunities, community projects and many other member benefits as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. How do you get on the list? To become a 2016 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2016 DBA 100 Club! If we receive your list by June 3rd, your firm will be included on the July and August DBA 100 Club recognition list in Headnotes.
Send in your list TODAY! DBA 100 Club Members as of May 12, 2016 Law Firms with 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Ackerman & Ramos, L.L.P. Adair, Morris & Osborn, P.C. Aldous \ Walker Alexander Dubose Jefferson & Townsend LLP Altaffer & Chen PLLC Anderson & Brocious P.C. Anderson Beakley, PLLC Ashcraft Law Firm Ashley & Laird Atwood Gameros LLP Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Chen Dotson, PLLC Clark, Malouf & White, LLC Connatser Family Law Crain Lewis Brogdon, LLP Darrell W. Cook & Associates PC Dunn Sheehan LLP Edison, McDowell & Hetherington LLP Fisher & Welch, P.C. Franklin Hayward LLP Gauntt, Koen, Binney, Woodall & Kidd, LLP Gillespie Sanford LLP Goggin Law Firm Grogan & Brawner P.C. Hamilton & Squibb, LLP
Hance Law Group Hollingsworth Walker Horton & Archibald, P.C. Hyden + Hyden Iola Galerston, LLP Johnston Tobey Baruch, P.C. Juneau, Boll, Stacy & Ucherek, PLLC Kabani & Kabani, PLLC Kellett & Bartholow PLLC Kevin Buchanan & Associates, P.L.L.C. Koning Rubarts LLP Langley LLP Law Office of Andrew & Mark Cohn Law Offices of Carmen S. Mitchell, LLP Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lee & Braziel, LLP Lemons & Hallbauer, LLC Lidji Dorey & Hooper Lira Bravo Law, PLLC Malouf & Nockels LLP Marshall & Kellow, LLP McElree | Smith McTaggart & Beasley, PLLC Miller Mentzer Walker, P.C. Mincey-Carter, PC Pace & Pace, L.L.P. Peckar & Abramson, P.C. Quaid Farish, LLC RegitzMauck PLLC Rosenberg Paschall Johnson LLP Smith, Stern, Friedman & Nelms, P.C.
Spencer Scott pllc Talcott Franklin PC The Courtney Firm Travis Law Group, P.C. Van Every Creedon PLLC Ward & Turton, PLLC Winn, Beaudry & Winn, L.L.P. Woodward & Shaw Woolley <> Wilson, LLP. Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Anderson Tobin, PLLC Baker Botts, L.L.P. Bragalone Conroy PC Brown Fox PLLC Calloway, Norris, Burdette & Weber, PLLC Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos, Hendricks, Poirot & Smitham, P.C. Coats Rose Cobb Martinez Woodward PLLC Cooper & Scully, P.C. Cowles & Thompson, P.C. Cozen O’Connor Cutler Smith, PC Duffee + Eitzen LLP Estes Okon Thorne & Carr PLLC Farrow-Gillespie & Heath LLP Fletcher, Farley, Shipman & Salinas, LLP
Texas Insurance Coverage Litigation — The Litigator’s Practice Guide, by Amy Elizabeth Stewart is the definitive ve resource for any litigator handling an insurance coverage dispute. Part I Practical guidance for: t Reviewing and analyzing insurance policies t Understanding the various types of business and management liability coverages that may be available to commercial insureds Part II Indispensable easy-reference overview of Texas law governing i iinsurance coverage disputes Part III Practical strategies for litigating an insurance coverage case: t Dispute resolution and Call 1.800.756.8993 to order. pre-litigation considerations t Discovery tips t Case management ideas www.TexasLawyerBooks.com t And more! Amy Elizabeth Stewart is the founding shareholder of Amy Stewart PC, a boutique law firm in Dallas that represents corporations in disputes with their insurers. Amy conducts an active litigation practice involving complex insurance coverage and bad faith cases. She also provides advice on matters relating to risk management, policy procurement and renewals, pre-litigation disputes, and other contract issues implicating insurance or indemnity agreements. Having spent many years representing insurance companies in coverage litigation, Amy has insight into the perspectives of both the insurer and the insured. Her experience and understanding of insurance law make her an invaluable resource to clients facing insurance coverage disputes, evaluating and renewing their insurance programs, managing communications with their insurers, and addressing other complex insurance issues.
Fox Rothschild LLP Godwin PC Goranson Bain, PLLC Gruber Elrod Johansen Hail Shank LLP Hankinson LLP Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Hoge & Gameros, L.L.P. Jordan Cresswell Monk Reber, PC Kessler Collins, P.C. Lynn Pinker Cox & Hurst, LLP Macdonald Devin, P.C. Malouf Nakos Jackson & Swinson, P.C. McCathern, LLP McGuire, Craddock & Strother, P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Orsinger, Nelson, Downing & Anderson L.L.P. Sayles Werbner, P.C. SettlePou Shannon, Gracey, Ratliff & Miller, L.L.P. Sorrels, Udashen & Anton Stacy & Conder, L.L.P. Stanton Law Firm PC Staubus & Randall, L.L.P. Stuber Cooper Voge, PLLC The Bassett Firm, P.C. The Hartnett Law Firm Thiebaud Remington Thornton Bailey LLP Touchstone Bernays
Verner Brumley McCurley Mueller & Parker, PC Winstead PC Zelle LLP Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Borden Dairy Company Buckner International Compatriot Capitol Inc. Dunhill Partners, Inc. Fair Texas Title, LLC Front Burner Restaurants, LP Gaedeke Group HighGround Advisors Morgan Management Corporation Neuberger Berman Oak Highlands Brewery PrimeLending, a PlainsCapital Company Tenaska, Inc. Government Agencies, Organizations & Law Schools City of Irving Dallas Children’s Advocacy Center Dallas County Probate Court DII Industries, LLC Asbestos PI Trust UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law
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Focus
D al l as Bar A ssoci ati on l Headnotes 9
Tort & Insurance Practice
Maximizing Business Insurance Recovery Following a Natural Disaster BY NATALIE DUBOSE
When disaster strikes, following these five practices will make it easier for businesses to get up and running again and for insureds to maximize their insurance recovery with the least amount of stress: 1. Take Emergency Measures. Hire emergency services personnel and take actions to secure property immediately. This may involve hiring a debris clean-up crew, engaging security to guard against theft, boarding up and tarping roofs and windows to minimize further damage, or engaging HazMat response teams. Have a go-to list of emergency response personnel who can be called upon to assist immediately. 2. Organize Internal and External Responses Teams. The insured’s team typically involves both internal and external professionals, organized into a “claims team” and a “business continuation team.” The business continuation team consists of key employees, as well as suppliers, shippers, and others, who can keep the business running as smoothly as possible following a disaster. Whether this involves developing alternative shipping routes, negotiating extensions on delivery, telephoning customers, or managing press communications, create a plan and a team in advance so that everyone knows their role and can act immediately. Consider setting up a group email or intranet for instant team communication. Identify employees in different geographic areas which may be able to provide coverage for a downed regional operation. The “claims team” involves key internal personnel and retained experts who
will interact directly with the insurer’s team or provide substantive support for the claim. Internally, in addition to claims personnel, this will likely include accounting employees who can keep track of repairs costs and advise on anticipated lost revenue. Identify a company pointperson to communicate with the insurer to make sure the company is presenting a unified position. 3. Consider Retaining Experts. After a carrier sends a loss adjuster out to view damage and prepare an estimate, they will then set reserves on the claim. Many businesses are unaware that once reserves are set, they can be very difficult to change if the damage is more extensive or the repair more complex than originally thought. Thus, consider retaining experts early to assist in maximizing the estimate from the beginning. For example, a claims-management company or independent appraiser can aid in preparing an estimate of loss and appraisal, taking into account the various coverages available. Additionally, engineering/ reconstruction experts may also be key in navigating the claim. They can identify not only the extent and cost of property repairs, but also pinpoint the cause of loss (or dispute the carrier’s cause-of-loss determination). 4. Engage Coverage Counsel Early. If your claim is complex or you think coverage may be an issue, its best to contact coverage counsel early and get them up-to-speed on your claim. They can suggest experts and help quarterback your internal and external teams. Most importantly, they can review your policy and advise everyone working on
the team on ways to maximize different coverages (for example, property loss, business interruption, extra expense, code upgrades, etc.) and avoid potential coverage pitfalls. Coverage implications under the policy and any potential exclusions must be understood by everyone on the claims team, from accountants to engineers. Coverage counsel can work silently behind the scenes, or if negotiations with the insurer fail, they can act quickly in initiating litigation or arbitration on the insured’s behalf. 5. Record Loss Carefully and Prepare Claim. Immediately following the loss, you should take an inventory of all damaged property, along with copious photographs. Be sure to retain all invoices from emergency repairs and claims experts, as those costs are often covered. Claims counsel, along with retained experts, can help identify other records needed to support the claim. After the
insured completes its investigation of the scope of loss, it will, often with the assistance of counsel, submit a Proof of Loss to the carrier. The Proof of Loss will include all estimates, inventories, photographs, receipts, invoices, and other support documents to substantiate the claim. Be aware that the Proof of Loss must be filed by a specific date. If an extension is necessary, be sure to get one in writing from the carrier. Navigating coverage issues following a catastrophe can be tricky, but having the right procedures and people in place will go a long way towards maximizing the company’s payment on the claim and getting the business up and running smoothly as quickly as possible. HN Natalie DuBose is an associate at Haynes and Boone, LLP, and serves on the board of the DBA Trial and Insurance Practice Section. She can be reached at nataliedubose@haynesboone.com.
SUMMER ASSOCIATES PRO BONO LUNCHEON Friday, June 3, at Noon | MCLE 1.00, Ethics 0.25 Speakers: Jeremy D. Aleman, Grau Law Group Sam Peca, Weil, Gotshal & Manges LLP Hon. Craig Smith, 192nd District Court RSVP to vallejod@lanwt.org
10 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2016
DBA Celebrates Law Day On April 29, local judiciary and attorneys attended the 2016 Law Day Luncheon at which Judge Catharina Haynes, of the Fifth Circuit U.S. Court of Appeals, was the keynote speaker. In addition to awards presented to the winners of the Law Day Dallas ISD art and essay contests, the Dallas Association of Young Lawyers presented awards for Outstanding Mentor, Outstanding Young Lawyer and the Liberty Bell Award.
DBA President Jerry Alexander and Judge Catharina Haynes.
(Left to right) Cassidy Baker, DAYL Liberty Bell Award recipient; Hon. Christine Nowak, DAYL Outstanding Young Lawyer Award recipient; and Tricia DeLeon, DAYL Outstanding Mentor Award recipient.
Mr. Alexander and the Dallas ISD winning students of the Law Day art and essay contests.
Sign up to Volunteer at the DBA Community Day of Service Saturday, October 22, 2016
A day of community service hosted by the DBA’s Community Involvement Committee. For more information, visit www.dallasbar.org/dbacommunitydayofservice. If your firm or group has an idea for a project that you would like to organize, please contact acavazos@velaw.com.com, belwood@dykema.com, or kzack@dallasbar.org.
Minority Clerkship Luncheons Friday, June 10 and July 8, Noon at Belo June 10 Speakers: Dimitri Dube, Jennifer Salim Richards, Ashlie Alaman Stamper, Emmanuel Urbinas and Glen Hill, moderator. RSVP to bavina@dallasbar.org
Collaborative Law Strategies for the Insurance Defense Practice continued from page 1 agreement, the collaborative tools can still be utilized informally. Defense counsel should then contact the counsel for the other party and gauge the other party’s receptiveness. Assuming that the other party agrees to engage in the collaborative process, ask the insured and carrier to identify their goals for the collaborative law process and their reasons for identifying each goal. Also, ask the insured and the carrier to identify what they believe are the goals of the other party. Finally, ask the insured and carrier to identify their greatest concerns regarding the lawsuit/matter. These steps ensure that you as the attorney are fully cognizant of your client’s position. These steps also help the client begin to think about the case from the perspective of the other party. After both parties have had a chance to individually determine their goals, the parties should schedule the first joint meeting. This meeting is an opportunity for both parties to share their respective goals for the process and to share any pressing needs. It is best for the parties to refrain from actual negotiations at this meeting. After the initial meeting, the next phase is information gathering. First, decide what information is needed and assign information gatherer(s). Then review all information shared by the other party. After gathering all the necessary information, identify the hot button issues based on the investigation. Develop various options for resolution by making a list of all possible options. Evaluate the various options and discuss probable outcomes of each. Now that you and your client have evaluated the various options, it is time to
negotiate the agreement. Another joint session should be scheduled to allow the parties to discuss the various options they have identified. Narrow down the options to those that meet the most important goals of both parties. After the parties have agreed on the best option, begin preparation of the legal documents. Exchange drafts with the other party’s counsel, and schedule a joint session to present the document to both parties for their review and comments. Jointly determine whether all closing documents have been prepared and finalized. The meeting concludes after all closing documents have been signed. The collaborative process described in this article can be modified based on the particular case and the parties involved. The collaborative process can also be used to resolve disputes that arise within the case as opposed to the case as a whole. In the insurance defense practice, the collaborative process is an opportunity to demonstrate to carriers that you, as defense panel counsel, have a vested interest in partnering with the carrier to reach a desired outcome and that you have the ability to formulate creative solutions to complex legal issues. Collaborative process is generally underutilized and therefore, carriers are unlikely to request it. However, the typical benefits of collaborative process, namely, reduction in defense costs and more timely resolution, are benefits that resonate with all carriers. In addition, the fact that the process is designed to promote civility among litigants is a benefit to all parties involved. HN Dwayne Hermes is the founding partner of Hermes Law, P.C. and can be reached at dwayne@hermes-law.com. Erica Lay is an associate at the firm and can be reached at erica@hermes-law.com.
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D al l as Bar A ssoci ati on l Headnotes 11
Tort & Insurance Practice
New Damages Law with Total Destructions BY JON GODOY
The Texas Supreme Court’s decision in J & D Towing, LLC v. Am. Alternative Ins. Corp., 478 S.W.3d 649 (Tex. 2016) issued on January 8, 2016, changed a longstanding principle in property damage law. In the State of Texas, it had long been understood that loss-of-use damages were recoverable when property was partially destroyed in addition to repair costs, but were not recoverable when property was completely destroyed. In cases of complete destruction, the property owner was limited to recovering the diminution in the fair market value of the property. However, in J & D Towing, LLC v. Am. Alternative Ins. Corp. the Texas Supreme Court ruled that “the owner of personal property that has been totally destroyed may recover loss-of-use damages in addition to the fair market value of the property immediately before the injury.” The most ordinary application of the old rule occurred when a motor vehicle owner who suffered a total destruction of his vehicle could not be compensated for his rental car expenses in the days or per-
haps weeks following the collision while he was researching, locating, and test driving a replacement vehicle. While the owner of a vehicle involved in a less severe accident, whose vehicle only sustained repairable damage, could recover her rental car expenses while her vehicle was being repaired. However, this rule reaches farther than just vehicular claims. Operators of commercial equipment will now be able to recover lost profits if their commercial property is destroyed by, for example, fire or flood. J & D Towing, LLC v. Am. Alternative Ins. Corp. relates to a tow truck owned and operated by a one-truck towing company, J & D Towing, LLC, that was damaged in a motor vehicle collision. J & D was without its tow truck for approximately two months while it was negotiating a policy limits settlement with the negligent driver’s insurer. J & D filed suit against American Alternative Insurance Company (AAIC), its insurer, seeking underinsured-motorist coverage because, J & D contended, its policy limit settlement with the negligent driver did not adequately compensate J & D for its loss-
of-use damages. The jury awarded J & D loss-of-use damages and AAIC responded with a motion for a judgment notwithstanding the verdict arguing that (a) Texas law does not allow for the recovery of lossof-use damages in total destruction cases, and (b) the terms of J & D’s insurance policy with AAIC only require AAIC to compensate J & D for damages it was “legally entitled” to recover. The Walker County trial court denied AAIC’s motion for a judgment notwithstanding the verdict. The Tenth Court of Appeals reversed and rendered judgment for AAIC. The Texas Supreme Court in turn reversed and rendered judgment for J & D. While many defense attorneys and claims professionals in Texas prior to this opinion would have argued that it was “the law” that a claimant could not recover loss-of-use damages for a total destruction, interestingly, the Texas Supreme Court stated in this opinion that it has never expressly permitted or prohibited the recovery of loss-of-use damages in total destruction cases. The Court went on to state that it
believed that lower appellate courts had ruled against the recovery of lossof-use damages in total loss scenarios in an effort to prevent double recovery on the “assumption” that property could be replaced immediately. However, the Court points out that this assumption is erroneous because “[t]he owner of totally destroyed personal property may suffer loss-of-use damages to the same extent that the owner of partially destroyed personal property may suffer loss-of-use damages – permitting the damages in the latter case and not the former is, therefore, illogical.” The Court also noted that the modern national trend was shifting away from prohibiting the recovery of loss-ofuse damages in total destruction cases. In coming to its decision, the Court stated the awarding of actual damages functions as “an instrument of corrective justice, an effort to put the plaintiff in his or her rightful position.” But the Court cautioned, the awarded loss-of-use damages cannot be “too remote,” speculative, or for a period longer than reasonably needed to replace the destroyed property. HN Jon Godoy is an attorney at Downs Stanford, PC. He can be reached at jgodoy@downsstanford.com.
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2nd Annual L.A. Bedford, Jr. Awards Luncheon Friday, August 5, Noon at Belo
DBA Home Project Fundraising Happy Hour Wednesday, June 1, 5:30 p.m. The Tower Club Dallas, 1601 Elm St, Dallas, TX
Law Student Professionalism Program Thursday, June 2, at 2:00 p.m. | MCLE 3.00 Speakers: Keynote speaker: Hon. Tonya Parker, 116th District Court Darrian Campbell, Locke Lord LLP Stephanie Gause, Frost Brown Todd LLC Justice Douglas S. Lang, Fifth District Court of Appeals Frank Stevenson, SBOT President-Elect, Locke Lord LLP
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JUNE’S FRIDAY CLINICS Friday, June 3, Noon at Belo “Contingency Fee Agreements—Ethics and Enforceability,” Dan Sheehan. Ethics 1.00 | RSVP to kzack@dallasbar.org. Friday, June 10, Noon at At Two Lincoln Centre (5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240) “Using Turnovers & Receiverships to Collect Debts and Judgments,” Michael Bernstein. MCLE 1.00 | RSVP to kzack@dallasbar.org. Thank you to our sponsor Fox Rothschild LLP. Friday, June 17, Noon at Belo “Presentation of Evidence: Tips, Techniques and Common Pitfalls,” Hon. Jim Jordan. MCLE 1.00 | RSVP to kzack@dallasbar.org.
Ron Massingill & Maryann Brousseau
Powerful results delivered with a personal touch. That’s what you get when you partner with Brousseau Naftis & Massingill. When your firm requires co-counsel, has a conflict or needs a referral, we are there for you and your clients. We can achieve results on a broad range of matters, from business litigation, real estate transactions and corporate law to family law and bankruptcy. Learn more at bnmdallas.com
Personal approach. Proven results.
12 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2016
DBA Pro Bono Golf Classic On April 28, nearly 100 golfers participated in the 24th Annual DBA Pro Bono Golf Classic at Brookhaven Country Club to benefit the Dallas Volunteer Attorney Program and Legal Aid of NorthWest Texas. All proceeds will be used to help provide pro bono legal services to low-income residents of Dallas. Thank you to our Golf Committee Co-Chairs Tom Goranson, David Kent, Kyle Mandeville and Chris Robinson. And a big thank you to all of our sponsors! We appreciate you!
THANK YOU TO OUR 2016 DBA PRO BONO GOLF TOURNAMENT VENDOR SPONSORS Crockett, McBride & Associates at Merrill Lynch Wealth Management Wealth Management Advisors | (214) 750-2144 http://fa.ml.com/crockett_mcbride
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June 2 0 1 6
D al l as Bar A ssoci ati on l Headnotes 13
DBA Pro Bono Golf Classic
Focus
Tort & Insurance Practice
Probate Pitfalls for PI Lawyers BY PRICE L. JOHNSON AND MATTHEW BOURQUE
Do you handle cases that involve deceased parties or catastrophic injuries? Do you want to? If the answer to either of those questions is yes, then read on, because probate issues will affect your practice. Probate issues lurk beneath every facet of personal injury cases. They can create additional venue opportunities, render your settlement release invalid, or make your judgment unenforceable. Whether you represent plaintiffs or defendants, a basic understanding of probate pitfalls can save you time, money, and potential malpractice exposure.
Name the Correct Parties
We often see lawsuits incorrectly name “the estate” or an incapacitated person as a party. The proper party is the personal representative (the executor or administrator of a deceased person’s estate) or the guardian of an incapacitated person’s estate. With few exceptions, only a properly appointed personal representative may sue or be sued on behalf of the estate, and only the guardian of the estate may sue on behalf of an incapacitated person. A lawyer who names the incorrect party may expose himself or herself to malpractice, sanctions, or contempt.
The Dangerous Exception
Intrepid lawyers sometimes rely on Texas Rule of Civil Procedure 151 to avoid the probate process. This rule and related case law provide a narrow exception to the principles discussed in the previous paragraph in allowing the heirs—instead of the personal representative—to assert claims of an estate. While we applaud the creativity of lawyers using this rule, its use is almost never appropriate. First, lawyers who use Rule 151 must state that no estate administration is pending and none is necessary. If a single creditor exists, an estate administration is probably necessary; if an estate has two or more creditors, necessity of administration always exists. Does your deceased party have any medical bills? Funeral expenses? Credit cards? Phone bills? Utilities? A mortgage? You get the picture. And even if no creditors exist, the Estates Code broadly defines necessity of administration. In short, lack of necessity is a longshot. Second, lawyers who invoke the Rule 151 exception must claim to represent all of the deceased’s heirs. We frequently see common-law spouses, children born outside marriage, and children adopted-by-estoppel crash the heirship party. If those parties show up during your Rule 151 proceeding, then
you made a misrepresentation to the court. And if those parties show up after you settle your case, expect a claim for their portion of the estate settlement, including fee forfeiture.
Get Your Fees Approved… or Else
Personal injury lawyers often present engagement agreements that suggest their client is the personal representative of an estate when no probate proceeding exists. In these situations, no such client exists. A lawyer must take three steps in order to actually represent an estate or incapacitated person. First, a probate court must appoint a personal representative of the estate. Second, a probate court must approve the engagement of counsel in dependent administrations, which include all guardianships and most intestate proceedings. Finally, the probate court must specifically approve any contingent fee in excess of 1/3 of the estate’s recovery. Failure to follow any of these steps may result in a frustrating amount of lost time, effort, and money for your practice.
Respect the Estate at Settlement
Probate issues are particularly impor-
tant to settlement. Only a properly appointed personal representative can settle on behalf of the estate. In dependent administrations, the probate court must approve the settlement. If your plaintiff or defendant settles or releases estate claims with or on behalf of an unauthorized party, the consequences can be devastating. A defendant who settles estate claims with a plaintiff who merely claims to represent the estate is exposed to additional claims. When the actual personal representative is appointed, the defendant will have a worthless release. Plaintiffs who release estate claims without authority also incur great risk. When the authorized personal representative properly brings claims, the defendant will run to the original plaintiff with an indemnity agreement in hand.
Final Note Please note that most of the issues above apply to incapacitated persons as HN well as deceased persons. Price L. Johnson is the president of The Johnson Firm and a past chair of the Tort & Insurance Practice Section. He can be reached at price@johnsonbusinesslaw.com. Matthew Bourque is an attorney at The Johnson Firm. He can be reached at matt@johnsonbusinesslaw.com.
14 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2016
A Modern Solution for an Age-Old Payment Problem BY TRACEY GAVIN
There was a time when lawyers refused to use dictation equipment or copy machines. Why should they? They have carbon paper and shorthand. Likewise, lawyers and firms have often shied away from taking credit cards. Yet, if firms wish to be seen as “modern” they must concern themselves with the needs of their current or prospective card-wielding clients. In 2016, it is estimated that over 55 percent of all bills will be paid online. Not surprisingly, today’s legal clients expect the option to pay bills with credit, online, at their own discretion. Law firms need to heed this and immediately adopt online payment technology. Firms accepting credit cards report having done so in response to client requests, and in the process have made their payment process easier, and more up to date. It may come as no surprise that legal fees can often act as a point of dispute and general distraction from the case at
hand. So improving a firm’s collections process can be a great way to ensure client relationships are never compromised. Law firms that offer the credit card option to clients report having fewer uncomfortable discussions about past due bills and less guilt when asking for earned fees. These firms believe that when clients know they have more than one way to pay, the list of potential excuses for not doing so gets shorter. If the prospect of having an invoice paid within 24 hours does not excite you, then increased cash flow should do the trick. On top of having fewer write-offs, less discounting, and more upfront payments for the full amount, credit card payments save time and effort. Firms not accepting credit cards spend up to 4-5 hours a week on
collections, calling clients, following up on past due accounts, and cashing checks. How much is your firm’s time worth? When it comes to choosing your payment provider, make sure you are given the ability to direct card payments
into your operating and trust accounts, to preserve the character of payments made. Any service charge related to a trust account deposit must be paid from the firm’s operating account. This further promotes the efficient financial operations of the firm and secures better cash flow.
Consider the benefits of a more lean and efficient collection process. In an increasingly cashless society with clients looking to stretch their budgets, give your clients an easy option to pay. Do not let a payment method, or lack thereof, be an impediment to prospective clients seeking the counsel of your law firm. The bottom line is credit cards are good for business and more importantly, the business of law. LawPay is leading this progression online by being the preferred payment solution for attorneys. Designed specifically for the legal industry, LawPay offers a user-friendly tool for receiving credit card payments—the fastest way to get paid. Our secure solution is quick and simple, allowing clients to make payments anytime, anywhere. For more information, visit us online at https://lawpay.com/dallasbar or give us a call at (866) 376-0950. HN Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
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June 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 15
Tort & Insurance Practice
Conducting Net Worth Discovery in Texas: Ushering in a New Procedure BY MICHAEL LYONS, BRIAN LAUTEN, AND CHRISTOPHER SIMMONS
The Texas Supreme Court has held that net worth is relevant to the award of exemplary damages and is, therefore, discoverable. Senate Bill 735 was signed into law on June 19, 2015, changing the way discovery is conducted concerning a defendant’s net worth. Act of June 19, 2015, 84th Leg., R.S., ch. 1159, § 2, 2015 Tex. Sess. Law Serv., 3923, 3923 (West 2015). Codified as section 41.0115 of the Texas Civil Practice and Remedies Code, the statute requires a party seeking discovery regarding net worth to first demonstrate and obtain a finding from the trial court that there is a “substantial likelihood” of success on the merits of a claim for exemplary damages. This is a significant departure from conventional methods for the discovery of this information. In the past, many intermediate appellate courts adopted definitions for net worth, holding, in essence, that net worth is the difference between total assets and liabilities as determined by generally accepted accounting principles. That definition is now a statutorily defined term. “Net worth” now means the total assets of a person minus the total liabilities of the person on a date determined appropriate by the trial court.
The new procedure prevents discovery of net worth information without authorization of the trial court upon motion, notice, and hearing. Parties are required to submit evidence in the form of an affidavit or a response to discovery in support of or opposition to net worth discovery, and the court is only permitted to consider evidence presented in the motion, in the response, or at the hearing. There is a presumption that “adequate time for discovery” has elapsed for the filing of such a motion. While the statute does not define what an adequate time for discovery is, it does provide that an adequate time for discovery means enough discovery of the facts has been conducted such that the defendant has sufficient information to prepare a no-evidence motion for summary judgment on the plaintiff’s exemplary damage claim. Thus, trial courts must now consider a defendant’s argument that insufficient time has elapsed for discovery of the plaintiff’s claims to permit the discovery of net worth information. The statute itself provides little clarity on how the plaintiff can meet the burden to prove “substantial likelihood of success on the merits.” The plaintiffs’ trial burden on exemplary damages is by “clear and convincing” evidence, and there is ample case authority demonstrating how a plaintiff can meet this burden. A close investigation of
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the legislative history for Senate Bill 735 makes it clear that the discovery burden of “substantial likelihood” was intended as a lower standard. It was the intent of the legislature that the plaintiff merely demonstrate a “prima facie” showing and not that “he is certain to win.” As such, a claimant need only “raise questions on the merits” to make them “fair ground for more deliberative investigation.” It is clear the legislature’s intent was a lower standard than even a “preponderance standard.” If the trial court determines that net worth discovery is appropriate, it is required that any order of net worth information permit discovery only in the “least burdensome” method. The Dallas Court of Appeals held as recently as March of 2016 (in a case that pre-dated the effective date of Senate Bill 735) that net worth inquiries should be limited to inquiry into a defendant’s current net worth, holding
that requiring a defendant to produce more than its current financial information was an abuse of discretion by the trial court. It is important to underscore that while Senate Bill 735 became effective September 1, 2015, and presently only applies to cases filed on or after the effective date, a case pending before the Texas Supreme Court will decide whether section 41.0115 should be applied retroactively. See In re Robinson Helicopter Co., No. 01-15-00594CV, 2015 WL 4623939 (Tex. App.— Houston [1st Dist.] Aug, 4, 2015 orig. proceeding [mand. pending]). Full briefing has been ordered in this case, and the decision could impact cases filed even before the effective date of the provision. HN Michael Lyons, Brian Lauten, and Christopher Simmons are partners at Deans & Lyons, LLP. They can be reached at mlyons@ deanslyons.com; blauten@deanslyons.com; and csimmons@ deanslyons.com, respectively.
Applying the Law when There Isn’t Any: Changes Facing Today’s Family Courts Thursday, June 2, Noon at Belo | MCLE 1.00 Speakers: Judge Tena Callahan, 302nd District Court Judge Dennise Garcia, 303rd District Court Sponsored by the Judiciary Committee
Volunteer to build a Habitat House, contact dfisk@krcl.com or eminshull@wickphillips.com.
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Participate in mentor2.0, contact whall@bbbstx.org.
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Tutor a Child Confined to the Henry Wade Juvenile Justice Center, contact ahernandez@dallasbar.org.
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Volunteer to help at a Dallas Volunteer Attorney Program free legal clinic, contact reed-brownc@lanwt.org.
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Speak to a Community or Civic Group on a Law-Related Topic, contact mjohnson@dallasbar.org.
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16 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2016
Hon. Barbara M.G. Lynn Becomes Chief Judge STAFF REPORT
As of May 1, 2016, the Honorable Barbara M.G. Lynn became Chief Judge of the U.S. District Court for the Northern District of Texas. She replaced Chief Judge Jorge Solis, who retired from the bench after 24 years of service. Judge Lynn is the 14th judge and the first female to hold the position of Chief Judge. Judge Lynn has been a federal district judge since November 22, 1999. She was nominated by President William J. Clinton to fill a seat vacated by
Column
tion of Litigation and of its Harold Barefoot Sanders, Jr. Judicial Division, and has A summa cum laude graduchaired the Committee on ate of the University of Virthe Administration of the ginia, Judge Lynn graduated Bankruptcy System of the first in her class at SMU’s Judicial Conference of the Dedman School of Law in United States and the Dal1976. Upon her graduation las Chapter of the Internafrom law school, she joined tional Women’s Forum. She the Dallas law firm of Caris a member, and was Presirington, Coleman, Sloman dent, of the Patrick E. Hig& Blumenthal, LLP, and Hon. Barbara M.G. Lynn ginbotham Inn of Court, remained there until she and she is an American Inn of Court took the bench. Judge Lynn has served as the Chair Foundation board member. She is also of the American Bar Association’s Sec- a member of the Executive Board at
SMU’s Dedman School of Law, a Fellow of the American College of Trial Lawyers, and a member of the American Law Institute. The recipient of numerous awards, Judge Lynn has received the Distinguished Alumni Award for private practice from SMU’s Dedman School of Law, the State Bar of Texas Women and the Law Section’s Sarah T. Hughes Woman Lawyer of Achievement Award, and was the recipient of the 2012 Dallas Bar Foundation Fellows Award, just to name a few. HN
Ethics
The Ethics of “Conflicting Out” Experts and Lawyers BY PROF. FRED C. MOSS
Lawyer A hires an expert for a client’s case and then discusses the case with other experts on the pretext that Lawyer A is considering whether to retain them. Actually, Lawyer A’s only purpose is to ensure his client’s adversary cannot hire them. Husband hires Lawyer B to handle his divorce. Husband’s spouse has no lawyer yet. Lawyer B instructs Husband to discuss the case with Lawyers C and D, two of the best divorce lawyers in town, on the pretext of possibly retaining them. The client does so. Have these lawyers acted unethically? Yes.
Texas Disciplinary Rule of Professional Conduct 8.04(a)(3) prohibits a lawyer from engaging in “dishonesty, fraud, deceit or misrepresentation.” In “neutralizing” the experts, Lawyer A has lied with the intent to deceive. Lawyer B has done the same via Rule 8.04(a) (1), which prohibits violating ethics rules “through the acts of another.” See In re Ositis, 40 P.3d 500 (Or. 2002) (unethical for a lawyer to permit his investigator to misrepresent himself as a journalist). Some may argue that these deceptions are just part of the “litigation game” and “everyone does it.” But, as we teach our children, “everyone does
it” doesn’t make it right. These deceptions reduce the supply of available experts and attorneys for nothing more than a tactical advantage. Rule 8.04(a) (3) does not require the misrepresentation to be “material.” Eureste v. C.L.D., 76 S.W.3d 184 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Courts have disapproved of such tactics. In Kenney v. Superior Court, 255 Cal. App. 2d 106, 113 (1967), an attorney recruited local doctors to be on a “medical committee” that would review claims against the lawyer’s medmal clients. The court noted, “We are aware of possible abuses of the so-called ‘medical committee’ system. Obviously, it is not in the interests of justice to countenance any attempt by defendant or his counsel in a medical malpractice action to ‘corner’ the supply of ‘top-drawer’ medical experts, silencing them as potential plaintiff ’s witnesses.” The court observed that “the evils” of this practice are particularly aggravated when plaintiffs must offer expert testimony on the standard of medical practice in that community. In Shadow Traffic Network v. Superior Court, 24 Cal. App. 2d 1067, 1080 n. 9 (1994), the court commented that “allow[ing] a party to deplete the pool of available experts simply by quickly interviewing all of the available experts, even though it had no intention of retaining them . . . . is a legitimate concern.” The court in Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D.Va. 1991), discussed “the impermissible practice of retaining consultants merely to preclude opposing counsel from doing so.” Oregon Ethics Opinion 2005-132, 2005 WL 5679556 (2005), advised, “[A] lawyer cannot misrepresent the identity or motive of the interviewer.” See also Va. Ethics Op. 1738 (2000) (A lawyer may supervise investigations that use “pretexting” methods, but only in
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otherwise lawful investigations into possible violations of civil or criminal law.) As for inducing clients to neutralize potential opposing lawyers, New Jersey Ethics Opinion 703 (2006) declared such conduct to be a violation of that state’s rule against conduct prejudicial to the administration of justice. Moreover, attempts to neutralize opposing lawyers may be ineffective. Authorities indicate that if a party shares confidential information with an attorney solely to create a conflict of interest, the attorney may represent the party’s adversary in the same matter since the confidences were not disclosed in a good faith effort to obtain legal assistance. See Va. Ethics Opinion 1794 (2004); Kentucky Ethics Opinion KBA E-316 (1987); and Vermont Ethics Opinion 84-05 (1984); A.B.A. Model Rules of Professional Conduct 1.18, cmt. [2] (“[A] person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.’”); Restatement of Law Governing Lawyers §15, cmt. c. (In deciding whether to disqualify counsel, the court may consider whether the now-adverse party disclosed confidences in a good faith effort to determine whether to hire the lawyer or for the purpose of preventing the lawyer from representing an adversary). Again, that these tactics may be common says nothing about whether they are ethical and should be tolerated. They violate Rule 8.04(a)(3). HN Professor Moss taught legal ethics for more than twenty years the SMU Dedman School of Law before he retired. He is a member of the State Bar’s Committee on the Rules of Ethics. The opinions expressed here are his alone. He can be reached at fmoss@smu.edu.
Support the DBA Home Project Help us reach our goal of $80,000 to build our 25th house for Habitat for Humanity. For more information, log on to www.facebook.com/DBAHomeProject or contact Co-Chairs David Fisk (dfisk@krcl.com) or Ethan Minshull (eminshull@wickphillips.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Yedenia Hinojos, Dallas Bar Association, 2101 Ross Avenue, Dallas, TX 75201
June 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Tort & Insurance Practice
Mass Torts 101 for Smarties BY KAY L. VAN WEY
A booming voice from your television beckons… “HAVE YOU OR A LOVED ONE BEEN INJURED BY (fill in the name of the drug or medical device of your choice). IF SO, YOU MAY BE ENTITLED TO A CASH AWARD!” For tort lawyers who do not do these types of cases, this area of law may be a mystery. Are they class actions? Where are these cases filed? What should I do if one of these cases comes across my desk? Here are the six very basic things you should know about mass torts. 1. Although the television commercials may seem distasteful to some they are a necessary means of reaching victims who have been seriously injured by dangerous drugs or defective medical devices. It is not uncommon for these drugs and devices to affect tens of thousands of patients. So, for those of you who do not handle these types of tort cases, here is a very, very basic overview. 2. Mass torts are not class action lawsuits. Rather, they are consolidated actions, typically filed and litigated under the auspices of the U.S. Judicial Panel on Multidistrict Litigation (JPML), pursuant to 28 U.S.C. § 1407 et seq. The purpose is to consolidate all of the cases for pretrial proceedings and streamlined discovery. The cases are often filed as individual cases. They involve common issues of fact, and
are typically against one or a few defendants. The JPML selects a federal district court to handle the proceedings in what is known as Multidistrict Litigation (MDL). The litigants are allowed to suggest where they believe the action should be transferred, and this is a very important part of the process to both sides of the litigation. 3. These cases may be filed in any U.S. District Court, but will be transferred to an existing MDL. These are commonly referred to as “tag-along actions.” In many MDLs, the Court will enter a Case Management Order (CMO) to allow cases to be “direct filed” into the MDL. Also, in many instances, the Court will allow “short form complaints” to be filed so that only the basic information about the claim needs to be provided. A lawyer who is in good standing in any U.S. District Court may practice before the JPML court without the need to obtain local counsel. 4. Because the cases are consolidated for pre-trial proceedings, you may not perform any discovery, other than what has been provided for by the MDL. Typically, this means that rather than doing individualized written discovery, the Plaintiffs will answer set questions and provide standardized information, usually referred to as “Plaintiff Fact Sheets” (PFS) or “Plaintiff Profile Forms” (PPF). Defendants will also provide information and responsive documents to a single standardized discovery tool. Oral depositions are certainly allowed, but the oral
depositions are typically taken by a member of the Plaintiffs’ Steering Committee. 5. As the litigation progresses, certain cases may be selected for either a discovery pool or for bellwether trials. These are useful to both sides to assess how juries respond to the evidence, and hopefully, to help both sides evaluate the cases for settlement. 6. Settlements in mass tort cases can occur in several different ways. The Plaintiffs’ Steering Committee has the authority to enter into a global settlement on behalf of all the cases filed in the MDL. Each case is evaluated individually to determine what percentage of the award the litigant should receive. A matrix, formula, or points system is often used to make the process more impartial. Settlements may also be offered in individual cases, or more typically, large groups of cases. In either case, every litigant has the opportunity to “opt out” of any settlement and ask that their case be remanded
to the court with appropriate venue for a jury trial. In this scenario, the trial lawyer has access to the entire pre-trial discovery already done in the case. If this is enough to make your head swim, do not worry—the wonderful thing about mass torts is that they can be a collaborative process. And despite the sour taste that some of those television commercials leave with some people, this is truly litigation that often helps tens of thousands of people who have been harmed by a dangerous drug or medical device. Without this type of litigation, individual litigants would often have no recourse, and defendants would have a very difficult time litigating massive numbers of individually filed cases throughout the country with conflicting rulings and multiple depositions. HN Kay L. Van Wey, of Van Wey Law, PLLC, is a board certified Personal Injury Trial Lawyer and patient safety advocate. She can be reached at kay@vanweylaw.com.
You are Invited! Wednesday, June 8, Noon at Belo | MCLE 1.00 “Managing Your Career” Speakers: Stephanie Gause, DAYL President, Frost Brown Todd LLC Bill Holston, Human Rights Initiative of North Texas, Inc. Emmanuel Obi, JLTLA President, The Obi Law Firm, PLLC Sponsored by the Transition to Law Practice Committee
Belo Reminder Please remember that food and beverage services shall be provided exclusively by Culinaire International. Group/patrons are prohibited from bringing their own food and/or beverages onto the premises. Thank you for your assistance! WANTING TO RETIRE?
DVAP’s Finest Samuel C. Peca
Samuel C. Peca is an associate in the corporate department of Weil, Gotshal and Manges LLP who served with the Dallas Volunteer Attorney Program as a “Lend-A-Lawyer.” As the 2016 Lend-ALawyer, Samuel spent two months working full-time with DVAP on a variety of cases, including family law, probate, and expunction matters. Samuel also assisted at DVAP’s neighborhood legal clinics, prove-up clinics, wills clinic, and veterans’ clinic. Since his time as a Lend-A-Lawyer has ended, Samuel has helped to coordinate connecting Weil volunteers with DVAP needs. Prior to his experience as a Lend-A-Lawyer, Samuel assisted DVAP by attending several intake clinics and accepting and resolving an advertised DVAP pro bono matter. Thank you for all you do, Samuel!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
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18 H e a d n o t e s l D a l l a s B a r A s s ociation
In the News
June 2016
June
FROM THE DAIS
Colin Cahoon, of Carstens & Cahoon, LLP, was quoted in Bloomberg BNA as he discussed the Axcess v. Baker Botts case.
KUDOS
Angela Oliver and Allison Stewart, students at SMU Dedman School of Law, won the national title defense at the 24th Annual Conrad Duberstein National Bankruptcy Moot Court Competition in New York, N.Y. Chris Deskin and Glenn T. Singleton, of Gardere Wynne Sewell LLP, have been elected to partnership. Cynthia Brotman Nelson, also of the firm, has been named chair of the Firm’s hospitality industry team.
Nancy Furney, John Nolan, and Michelle Rieger, of Winstead PC, have been elected to the firm’s board of directors. Jennifer Kinney Parnell, of Locke Lord, received the National Diversity Council’s Texas Most Powerful & Influential Woman award. Curtis W. Harrison II, of GoransonBain, PLLC, has been named Managing Partner. Kathryn Murphy, also of the firm, has been honored with UT Tyler’s Distinguished Alumni award. Phill Geheb and Aryn Self, of Munsch Hardt Kopf & Harr, have been promoted to Shareholders. Kathryne (“Kate”) M. Morris, of Strasburger & Price, LLP, has earned the ANSI-
accredited Certified Information Privacy Professional/United States (CIPP/US) credential through the International Association of Privacy Professionals.
& Thornburg LLP’s Dallas office as Partner.
ON THE MOVE
Laura Whiting has joined Gardere Wynne Sewell LLP as Partner.
Greg Brassfield has joined Wick Phillips as Associate. Carrie T. Carter has joined Carter Scholer Arnett Hamada & Mockler PLLC as Of Counsel. Bryce Benson has joined Akerman LLP as Partner. Alicia S. Voltmer has joined Lillard Wise Szygenda PLLC. John A. Willding II has joined Barnes
Benjamin L. Leffler and Jack J. Stone have joined Winstead PC as Associates.
Bruce Steckler, Dean Gresham, and Stuart Cochran have formed the firm of Steckler Gresham Cochran, located at 12720 Hillcrest Rd., Suite 1045, Dallas, TX 75230. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@ dallasbar.org. HN
NO PARKING AT BELO Parking at Belo is only allowed if members have business in the Belo Mansion. Due to the high demand of our parking garage for breakfasts and noon hour programs we ask that you not use the Belo garage and walk to adjacent offices. Thank you for your cooperation.
BAR NONE XXXI
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SIGN UP FOR THE 2016 DBA 100 CLUB! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association. What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are a member of the Dallas Bar Association. To join the 2016 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2016 DBA 100 Club membership list! What are the perks? Our 2016 DBA 100 Club members will be recognized in Headnotes, the 2017 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.
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June 2 0 1 6
Classifieds
D al l as Bar A ssoci ati on l Headnotes 19
June
EXPERT WITNESS
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OFFICE SPACE
North Dallas/Farmers Branch - Law firm has several offices for lease. $400/month. Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (972) 2435297 or ilene@texasinjurylaw.com. Turtle Creek Blvd. Upscale law firm has class A office space available with highend decor. Located at 3811 Turtle Creek, high floor, Office is 240 sq. ft., and rents for $1600.00 a month. Garage Parking, gym, and access to conference room available. Please inquire to Heather at hwoodard@ baronandblue.com. Uptown Dallas. Elegant 1200 square foot four office suite with reception area and extensive file room storage room with built-ins. Available August in small office building near Crescent with tall ceilings, large windows and other amenities. Contact jackcirwin@earthlink.net or (214) 855-0127. Uptown - Executive Office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour. Uptown/Harwood/McKinnon. Spacious window office in Rolex building. Steps away from dining, the arts, and sports & outdoor venues. Amenities include: Wi-Fi, 24/7 secured lobby access, conference room, kitchen, garage parking, and fitness facility. Email: theresa@jmarassociates.com. Richardson - Spring Valley & 75. Private Professional Office Space for Lease in Richardson Attorney’s Building. Located off Spring Valley two blocks east of U.S.75.
Amenities Include: Receptionist service to greet your guests/clients, Use of standard conference room, Complimentary coffee service and use of full kitchen, Copier/ scanner available for an added charge, Flexible lease terms, All utilities included, Free parking and 24/7 access, Available immediately! Please contact David at (214) 7206658 or dzoller@weitzmangroup.com. Executive Suites, Subleases, Home Offices & Coffee Shops are No Place for A Lawyer! Attorneys need a Professional & Secure place to work, meet clients, and network. VENUE is an All-Inclusive “working clubhouse” built By Attorneys, For Attorneys. In addition to fully-furnished, private window offices, VENUE offers virtual offices, dedicated workspaces and attorney co-working space at a prestigious downtown Dallas address. VENUE also provides secure mail/parcel handling, guest reception, conference rooms, phone booths, event space, as well as a full coffee bar and media lounge. Plus, VENUE members have access to 30+ hours CLE & management/development training annually, exclusive networking & social events, discounts from vetted service providers, and membership to an elite network of 100+ local partner-level peers . VENUE is the “Practice of Law Made Perfect.” For info or to schedule a tour: www. attorneyvenue.com. McKinney Avenue. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600 Addison A/V Rated law firm with great location at Belt Line and Dallas North Tollway has two, adjacent offices and secretary bay for lease. One office is partner-size, and one is partner/associate size. Offices come with telephone service and receptionist, use of conference rooms and kitchen area, work/copy room, some additional storage, covered parking and Wi-Fi. Kelly@crb-law.com. Walnut Glen Tower (Walnut Hill/Central). Great Deal! Terrific offices in Class A building near NorthPark with views of downtown over lake with fountains. Convenient access to DART station. Prized, central location wherever you need to go in the Metroplex. Do business in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. A larger executive office and/or smaller offices/flex space for as little as $500/ month. Why not have a professional location for your business and quality of life at work? Please call (214) 373-0404 for details. Downtown Dallas – Office Sharing for 2 attorneys. Downtown law firm near Court House and public transportation has 2 Private Offices with Floor to Ceiling Windows and great view (furnished or unfurnished). Will provide access to conference rooms, kitchen, copy/scan to network access, private phone number, voice mail to email, Wi-Fi, shared receptionist, basic office amenities. Additional services available for fee. Covered parking nearby for as little as $6/day (with covered walkway access). Minimum 6 month term. Prefer complimentary specialty. Please send resume via email to jjiral@kjpllc.com.
POSITIONS AVAILABLE
An Established 15 Attorney Civil Firm. Palmer & Manuel, LLP, seeks to add one or two experienced attorneys with portable business. Our formula based compensation system allows attorneys to keep a substantial portion of their earned fees. For a confidential discussion about your practice and our firm, please contact Steve Palmer at (214) 265-1951 or email spalmer@pamlaw. com. www.pamlaw.com
Experienced Legal Secretary. Thiebaud Remington Thornton Bailey, a law firm specializing in medical malpractice defense and healthcare law, has an immediate opening for an experienced legal secretary. Candidates must have a minimum of 5 years litigation secretarial experience. Responsibilities will include, but not be limited to: transcription of correspondence, pleadings, discovery etc.; electronic filing of documents with the Appellate, Federal, District and County Courts; calendaring of meetings, trial settings and scheduling order dates; work closely with attorneys and/or legal nurse consultants in the day-to-day handling of litigation files. Familiarity with Microsoft Word, Outlook and Timeslips is required. Please e-mail resume to: CSantosuosso@trtblaw.com or mail to Christine Santosuosso, Thiebaud Remington Thornton Bailey LLP, 4849 Greenville Ave., Ste. 1150, Dallas, TX 75206. Associate Attorney - Dallas Office. National law firm who is the largest collection firm in the country is seeking a dynamic, highly organized associate attorney to join our legal team in the representation of governmental entities in the collection of government delinquent receivables, primarily in the area of property tax. The individual is required to have 3-5 years of general civil litigation experience which includes non-jury trial motion(s) and bench trials, depositions, discovery and familiarity with the appellate process. Experience as a municipal prosecutor or county attorney/prosecutor will also be considered as equivalent to the civil litigation experience. Minimum job requirements: Licensed to practice law in the State of Texas, and Federal License for the Northern District preferred; A minimum of 3-5 years of civil litigation experience with preferred experience in motion/non-jury/jury trial(s) or equivalent municipal or county prosecutorial experience; Background in real estate, property tax or government a plus; Bilingual/Multilingual a plus. Interested Applicants please send resume, salary history, (3) references and writing sample to francine.harris@lgbs.com. Civil Litigator. Boutique construction law firm seeks experienced civil litigator with trial experience. Strong writing skills required. Compensation negotiable. Send cover letter and resume in confidence to oaklawnfirm@aol.com. Oil and Gas Attorney. Boutique oil and gas law firm seeks oil and gas title attorney. Must be board certified. Minimum five years direct experience. Please submit cover letter and resume to MR.resumes1@ gmail.com Experienced Paralegal with litigation experience needed in North Dallas Law firm. Must be able to assist with Personal Injury Matters from Intake to Settlement Demands. Position Available immediately. Please email your resume and salary qualifications to Amy Robinson, Marketing Manager at arobinson@englishpllc.com. Associate Attorney. English Law Group, Dallas Firm specializing in Personal Injury, Premise Liability, Medical Malpractice and Wrongful death cases is currently seeking an Associate to join their Dallas Team. Federal Briefing experience required. Position available June, 2016. Please email
your resume and salary qualifications to Amy Robinson, Marketing Manager at arobinson@englishpllc.com. KMDA is a small boutique construction litigation firm located in Lewisville. We have an opening for an attorney position. The attorney needs to have deposition, hearing and first chair trial experience. Attorney will be handling the litigation matters and must work independently. This is a partnership track position. Some portable book of business would be helpful. Position is full-time on a base plus percentage pay scale commensurate with litigation and construction experience and ability to be self-sufficient and bring in additional business. 5+ years construction litigation experience is preferred. Submit resume and cover letter via email at kelly@kmdalegal.com only. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
SERVICES
Trial Preparation Stress Relief: Licensed litigation attorney (20 years) available for hourly projects: court appearances, trial preparation, drafting pleadings/discovery/ motions, attending depositions, mediations. Large firm and complex litigation experience, first and second chair trials and arbitrations, law review. (972) 665-9834. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch. com. Wanda Smith, (972) 836-9091. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089.
FOR SALE
East Texas Law Office; County Seat, Courthouse Square; 35 years general practice, same location; 3,000 s/f building; $225,000 for the building, practice, equipment and furniture. Serious buyers only, please reply to attawaylaw@yahoo.com. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org. HN
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
20 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2016