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Dallas Bar Association


Focus ADR/Trial Skills

March 2015 Volume 40 Number 3

Frank Stevenson Candidate for President-Elect of the State Bar of Texas mer Law Intern Program which offers law firm internships to minorFrank Stevenson, a partner ity students in the Dallas ISD. Mr. at Locke Lord Edwards, has been Stevenson was awarded the State named a candidate for President- Bar’s “Best Series of Articles” for his Elect of the State Bar of Texas. Headnotes President’s Columns. Mr. Stevenson is a Randy Howry, of Ausmember of the Dallas tin, is also a candidate. Bar Foundation Board Ballots will be sent to of Trustees where he all State Bar members. served as SecretaryVoting will take place Treasurer. He is a SusApril 1-30. taining Life Fellow of Mr. Stevenson the Dallas Bar Foundaserved on the State tion, a Sustaining Life Bar of Texas Board of Fellow of the Dallas Directors (2010-2014) Association of Young and served as its chair Lawyers, a Sustainin 2012-2013. He has ing Life Fellow of the chaired the Campaign Frank Stevenson Texas Bar Foundation for Equal Access to Justice and currently serves on the and a Fellow of the American Bar Legislative Advisory Committee of Association. An active participant in his the Texas Access to Justice Commission. He is a member of the Pro community, he serves as an AssociBono Work Group of the State Bar ate Member of the Dallas Citizens Board of Directors and is a member Council, a Director of the North of the College of the State Bar of Dallas Chamber of Commerce, a member of the Dallas Foundation’s Texas. In 2008, Mr. Stevenson served Scholarship Committee and as as president of the Dallas Bar Asso- President of the Sammons Center ciation. During his tenure, he co- for the Arts. Mr. Stevenson is AV Preemifounded with Justice Douglas Lang the Transition to Law Practice Pro- nent© in Banking and Finance gram, a mentoring program that Law and in Transportation Law also trains new lawyers through by American Lawyer magazine and targeted CLE regarding law prac- Martindale-Hubbell. Mr. Stevenson was raised in Fort tice management, effective client representation, pro bono opportu- Worth, Texas, and is a graduate of nities, wellness issues and career the University of Virginia School of development. Mr. Stevenson is also Law and a magna cum laude graduthe Founding Chair of the Sum- ate of Amherst College.    HN Staff Report

Leon and Debra Carter

Leon & Debra Carter Donate $20,000 to EAJ Campaign by Alicia Hernandez

Hard working, humble, compassionate, committed to service and giving without expectation, these are some of the qualities that describe many pro bono volunteers who donate their time and talents to provide access to justice for the poor. These are qualities that are also shared by many Equal Access to Justice Campaign donors. Donors like Leon and Debra Carter, who give not to receive but to support a cause and a community that are near and dear to their hearts. “Leon and Debra exemplify everything that lawyers should be doing to promote equal access to justice,” said Robert Tobey, Co-Chair of the 2015 Campaign. “Without any prompting, they have

been major Campaign donors the past several years and are making a big difference in the lives of so many. In a word, their help with the Campaign has been invaluable!” “The Carters have been extraordinarily generous in their efforts to assist low-income families obtain access to justice,” continued Laura Geisler, Co-Chair. “We are incredibly grateful for their continued support of the Campaign.” With their Diamond Sponsorship of the Equal Access to Justice Campaign at the $20,000 level, Leon and Debra Carter continue their commitment to legal aid to the poor in Dallas. Leon Carter, a partner in the law firm of Carter, Scholer, Arnett, continued on page 16

Jim Cowles Selected for 2015 DBF Fellows Justinian Award by Kathryne M. Morris

The Dallas Bar Foundation will honor Jim E. Cowles by presenting him with the prestigious Fellows Justinian Award at the 24th Annual Fellows Luncheon at the Belo Mansion on Wednesday, April 1, 2015. Each year, the award is presented to an attorney “who has adhered to the highest principles and traditions of the legal profession, and has served the community and the profession with the highest ethical standards.” There is no greater honor, and it is fittingly conferred upon Mr. Cowles. As one of this state’s most successful and seasoned litigators, Mr. Cowles has now practiced law for over 50 years. By the time he graduated from The University of Texas Law School in 1961, he had already served as an officer in the United States Navy, and with the court’s permission, tried 10 cases to a jury verdict, winning all of them. Since that time, Mr.

Cowles has tried over 500 civil trials to verdict, winning most. When asked to explain why Mr. Cowles deserves to be honored for his professionalism, Auston Cherry, of Cowles & Thompson, P.C., said the following: “Call it respect, call it courtesy, or call it professionalism— it’s all the same to Jim Cowles. All he knows and has known his whole life is that you treat everyone with dignity. Walking to the office every morning around 7 a.m. you can hear him call out, Jim Cowles ‘Hey Ron, how’s it going?’ to the man who has a shoe shine business in the building. Or asking Jimmy, the off duty police officer, how his wife and kids are.”  John Scully, of Cooper and Scully, P.C., emphasized Mr. Cowles’s humility and respect

for the profession with a similar story: “Many years ago, before our courthouse was renovated, the hallway walls were discolored and dirty. I got to court early one day for trial with Jim to find him alone in the hallway scrubbing the walls with a brush and soapy water. Pride in our profession.” Additionally, Mr. Cowles is regarded as an exemplary mentor. Trey Dowdy, of Strasburger & Price, LLP, noted the sheer number of lawyers who have been trained by Mr. Cowles: “As a young lawyer I had the privilege of practicing with Jim at what was then Touchstone, Bernays and Johnston… Besides being an excellent trial lawyer, Jim was always more than willing to train young lawyers regarding the preparation for and the trial of lawsuits.

I would venture to say that there are literally hundreds of lawyers today who were mentored by Jim Cowles.” Jim Grau, of the Grau Law Group, described the impact of Mr. Cowles’s mentorship as follows: “For as long as I have known him, Jim Cowles has embodied the noble tradition of the servant mentor, teaching by word and deed that law could indeed be practiced ethically, honorably, and with fierce excellence. Much of the best legal instruction I ever received came early in my career on Saturday mornings in the coffee room at Cowles & Thompson where Mr. Cowles consistently engaged young lawyers in discussions of new law developments, client care, case strategy, and ethical pitfalls, always spiced with plenty of war stories. It should come as no surprise that many of the most effective continued on page 12

Inside 6 Voir Dire and Separating the Sheep from the Goats 8 The Importance of Legal Aid 13 Cognitive Bias: It Happens to You! 17 To Arbitrate or Not to Arbitrate

Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or

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

March 2015

Calendar March Events FRIDAY CLINICS


Visit for updates on Friday Clinics and other CLEs. Committee Noon

“Class Actions: A Primer and Update,” Katherine Compton. (MCLE 1.00)* RSVP to


“Technology and File Management: Best Practices for Reducing, Managing and Storing Your ‘Paper’,” Laura McClellan. (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


Noon “What To Do When Lawyers Exhibit Signs of Incapacity.” (Ethics 1.00)* RSVP to Cosponsored by the CLE & Peer Assistance Committees.


Tax Law Section “The Hottest Topic in 1031 Exchange ‘Drop & Swaps’,” Kevin Thomason. (MCLE 1.00)*


Corporate Counsel Section “Ethical Concerns for General Counsel When You and Your Company Find a Cyber Intrusion,” Peter S. Vogel. (Ethics 1.00)* Tort & Insurance Practice Section “Ethical Concerns in Attorney Use and Misuse of Social Media,” John G. Browning. (Ethics 1.00)*

Morris Harrell Professionalism Committee


Real Property Law Section “Construction Claim Diagnostic Analytics,” EJ Janik. (MCLE 1.00)*

DVAP Probate Mini-Seminar “Part I: Property Characterization, Intestate Estate & Ethics, Part II: Estate Planning & Probate for Digital Assets,” Angela Laughlin Brown, Mark R. Caldwell, Hon. Will Hartnett, Rhonda Hunter, Hon. John Peyton, and Hon. Brenda Hull Thompson and Dani Smith. (MCLE 2.00, Ethics 1.00)*


Collaborative Law/Solo & Small Firm Sections “Multiple Pathways to Settlement Success (and Client Satisfaction),” Laura Schlenker and Anne Shuttee. (MCLE 1.00, Ethics 0.25)*

Employee Benefits & Executive Compensation Section “ESOP Issues – Acquisitions of Employer Stock,” Eric Winwood. (MCLE 1.00)*

Judiciary Committee “Adventures in Error Preservation,” Justice Ada Brown, Judge Eric Moyé and Scott P. Stolley. (MCLE 1.00)*

Public Forum Committee

DAYL Judiciary Committee

5:30 p.m. Bankruptcy & Commercial Law Section “What is the Proper Undue Hardship for Dischargeability of Student Loans,” SMU Bankruptcy Moot Court Team, Hon. Barbara Houser, Robin Phelan and Behrooz Vida. (MCLE 1.00)*


DVAP/SMU CLE “Helping Kin Get Custody of Kids in Their Care.” (MCLE 2.50, Ethics 0.50)*

Family Law Section Board Meeting

3:30 p.m. Judicial Investitures For Hon. Lisa Green, Hon. Shequitta Kelly and Hon. Nancy Mulder.


Friday Clinic-Belo “Class Actions: A Primer and Update,” Katherine Compton. (MCLE 1.00)* RSVP to Government Law Section “The Big E comes to Big D: The Legal Issues Raised by Efforts to Contain an Ebola Outbreak,” Chris Bowers and Don Knight. (MCLE 1.00)*

Alternative Dispute Resolution Section “Pre-Litigation Mediation,” James Young, Gene Roberts and Akbar Kabani, moderator. (MCLE 1.00)*

Peer Assistance Committee


Business Litigation Section “Properly Responding to Written Discovery Under Texas Law,” Robert Wise.

Legal Ethics Committee

DAYL Lawyers Promoting Diversity Committee

6:00 p.m. Home Project Committee


7:45 a.m. Dallas Area Real Estate lawyers Discussion Group 9:00 a.m. Pictorial Directory Photographer at Belo

DAYL Freedom Run Committee


Labor & Employment Law Section “There’s An App for That! Introducing the iPad Into Your Law Practice,” P. Ryan Langston. (MCLE 1.00)*

Senior Lawyers Committee


Antitrust & Trade Regulation Section Topic Not Yet Available

International Law Section “International Implications of Recent Executive Actions on Immigration Policy: Congress Doing What? Attorneys on Standby!” Noaman Azhar, Eugenia Ponce, Michelle Saenz Rodriguez and George Rodriguez. (MCLE 1.00)*

Community Involvement Committee

Entertainment Committee

DAYL Elder Law Committee


Energy Law Section “The View from Both Sides: Debtors & Creditors in Bankruptcy,” Will Medford and Tim York. (MCLE 1.00)*

Health Law Section “The Scope of Private Cause of Action Under Medicare’s Secondary Payer Statute,” Micah Skidmore. (MCLE 1.00)*

Non-Profit Law Study Group


Family Law Section “Proving Your Claims Through Social Media,” Mark Scroggins. (MCLE 1.00)*

Appellate Law Section “Horses, Whooping Cranes, and Eagle Feathers: the Fifth Circuit in 2014,” David Coale. (MCLE 1.00)*

Media Relations Committee

Bench Bar Conference Committee

Minority Participation Committee

Summer Law Intern Program Committee

DAYL Animal Welfare Committee

DAYL Lunch & Learn CLE. For more information, contact

Christian Legal Society

Dallas Gay & Lesbian Bar Association


5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.


Publications Committee

Christian Lawyers Fellowship

11:00 a.m. Pictorial Directory Photographer at Two Lincoln Centre

You are Invited to the following Judicial Investiture:

Computer Law Section “Trends in Smartphone Litigation and Licensing.” (MCLE 1.00)*

Securities Section “What’s Not So Private about Private Offerings: An Update on Regulation D Offerings in the Brave New Regulated World,” Jim Deeken and George Lee. (MCLE 1.00)*

Golf Tournament Committee

11:00 a.m. Dallas Women Lawyers Association Noon

Probate, Trust & Estate Law Section “Judicial Panel—Neighboring Counties,” Hon. Weldon S. Copeland, Hon. Pat Ferchill, Hon. Steve M. King and Hon. Bonnie Robison. (MCLE 1.00)*

Courthouse Committee

American Immigration Lawyers Association


Sports & Entertainment Law Section Topic Not Yet Available

DAYL Equal Access to Justice Committee

DAYL CLE. For more information, contact

DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt. org.

Municipal Justice Bar Association

5:00 p.m. DVAP Belo Legal Clinic. Volunteers needed. For information contact reed-brownc@


Collaborative Law Section Topic Not Yet Available

Criminal Law Section “Dallas County Pretrial Release and Other Court Services That You Aren’t Using,” Leah Gamble. (MCLE 1.00)*

DBA Community Service Fund Board Meeting

4:00 p.m. Environmental Law Section Professor Jeffrey Gaba. (MCLE 1.00)*


Intellectual Property Law Section “A Panel Discussion of Section 101: Substance and Procedure at the Patent Office and in Court,” Eric Buether, Ira Matsil, David Wille, and Ryan Loveless, moderator. (MCLE 1.00)*

DAYL CLE Committee


3:30 p.m. DBA Board of Directors Meeting



Friday Clinic-Belo “What To Do When Lawyers Exhibit Signs of Incapacity.” (Ethics 1.00)* RSVP to kzack@ Co-sponsored by the CLE & Peer Assistance Committees.

Pro Bono Activities Committee

DAYL Lawyers Against Domestic Violence

6:00 p.m. J.L. Turner Legal Association



5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.


11:30 a.m. House Committee Walk Through





6:00 p.m. DAYL Board of Directors Meeting


Trial Skills Section “War Stories—Mostly True,” Rod Phelan and Bill Sims. (MCLE 1.00)*

Friday Clinic—North Dallas** “Technology and File Management: Best Practices for Reducing, Managing and Storing Your ‘Paper’,” Laura McClellan (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.

DAYL Solo & Small Firm Committee

5:30 p.m. Entertainment Committee/Dallas Stars CLE (at AAC) “Internal Governance of Legal Matters in Sports,” Jim Lites and Alana Newhook. (MCLE 1.00)* Visit (code ETHICS) to register.


6:00 p.m. Dallas Hispanic Bar Association


Thursday, March 5, 3:30 p.m. at the Belo Mansion

Learn More About the Transition to Law Practice Program

Hon. Lisa Green, County Criminal Court #5

All new lawyers interested in having an experienced mentor to guide them in the practice of law should contact for more information.

Hon. Shequitta Kelly, County Criminal Court #11

Don’t Miss Out on This Valuable Opportunity!

Hon. Nancy Mulder, County Criminal Court #4

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact

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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 

March 2015


President's Column


Our 30th Section Brad Weber

The 29 Sections of the Dallas Bar Association are one of our organization’s greatest assets. These Sections focus on substantive areas of the law from Antitrust to Tax. They cover procedural aspects of litigation, such as Alternative Dispute Resolution and Trial Skills. And they represent different types of lawyers, including Government Lawyers and Solo & Small Firm Practitioners. Last year alone these 29 Sections collectively presented 305 CLE programs, and virtually all of them were free for DBA members. Although the DBA has a long and impressive list of diverse Sections, there presently exists a glaring hole in our Section roster. The DBA currently does not have a Section focused on immigration law issues. This was brought to my attention last year by local immigration law attorney John Lawit. As pointed out by Mr. Lawit, “an immigration law section is needed in Dallas because there is no law-related organization specifically focusing on the immigration legal needs of individuals in the Dallas Metroplex.” According to demographic reports, Dallas is now the home for over 350,000 foreign-born residents. Mr. Lawit explained that Dallas is an attractive destination for immigrants, not only because of its employment opportunities, “but also because the city, county, and police establishments have an informal handsoff policy that allows everyone to live in relative harmony.” And the legal needs of this immigrant community can be quite diverse. As observed by Mr. Lawit, “everyone from Fortune 100 executives to the people who clean the company’s offices are in need of immigration legal services delivered by competent, welltrained professionals.” In addition to being the home for a large number of immigrants, Dallas also has a large contingency of recognized immigration law experts, including government officials and lawyers, immigration judges, and private practitioners. Among those are Sarah Saldaña, who in December was confirmed by the Senate as the new Director of the U.S. Immigration and Customs Enforcement agency. These local lawyers, judges and government officials form a unique and scholarly combination of individuals who will, in large part, determine the legal flow of immigrants into the Dallas area. The precise number of immigration law attorneys in Dallas is difficult to count. Conservative estimates place the number at well over 300. Based on statistics from the American Immigration Lawyers Association (AILA), there are 187 AILA members with addresses in Dallas, and an additional 144 AILA members located outside of Dallas but within the DFW Metroplex region. These numbers, however, do not include the dozens (or perhaps hundreds) of immigration law attorneys in Dallas who are not AILA members, including government immigration lawyers and judges who are not permitted to join AILA because of its immigration advocacy positions. Although there are hundreds of immigration law attorneys practicing in Dallas, a relatively small number of them are members of the Dallas Bar Association. This is a known fact that can be derived from a comparison of the AILA and DBA membership records. Florentino (Tino) A. Ramirez, who serves on the Board of the State Bar of Texas and is an active AILA member, believes that many of these AILA members and other immigration lawyers likely would join the DBA if it had an Immigration

Law Section. He notes that although the DBA does have an International Law Section, that section does not focus on immigration law issues and thus, does not offer a significant incentive for immigration law attorneys to join the DBA. With all of these facts in mind, I have determined that the creation of a DBA Immigration Law Section should be one my highest priorities as DBA President in 2015. I am happy to report that as I write this column, plans are well underway to create our 30th Section, which will add to the impressive roster of DBA Sections. The requirements for creating a new Section are set out in the DBA’s Guidelines for Creating and Sunsetting a Section. Before the Board of Directors can vote on the establishment of a new DBA Section, a number of prerequisites must be met, including the formation of a “Study Group” that eventually will transform into the new Section. The Study Group must remain in existence for at least six months, during which time regular meetings are held with attendance sheets signed by those attending and descriptions of the meetings recorded. The Study Group also must submit a Statement of Purpose, a Statement of Goals, proposed Section bylaws, letters from at least 50 DBA members who affirm they will join the Section, and letters from at least 35 DBA members who state they have attended at least three Study Group meetings. In late January, the Dallas Bar Association’s “Immigration Law Study Group” held its first meeting. The Co-Chairs of this Study Group are John Lawit, Tino Ramirez, and Mary Scott, who also serves as a director on the DBA Board. More than 15 immigration law attorneys attended the first meeting, including lawyers from small and large private firms and from immigration legal services groups such as Catholic Charities of Dallas and Refugee Services of Texas. As a “non-immigration law” attorney who attended this first meeting, I was amazed by both the enthusiasm and the knowledge that this group of immigration lawyers brought to the table. While listening to their creative ideas for programs and projects, I had to keep reminding myself that this was the first meeting of a new study group, and not a meeting of an established Section. The Study Group’s first scheduled program is related to a letter I received earlier this year from the U.S. Department of Homeland Security and the Department of Justice, which are seeking the DBA’s help in recruiting and training lawyers to represent unaccompanied children in immigration proceedings. In connection with that request, the DBA’s Immigration Law Study Group has agreed to co-sponsor a half-day CLE program entitled Representing Unaccompanied Children and Families in Immigration Court and before the U.S. Immigration and Customs Enforcement. The program is scheduled on March 5, 2015 at the Belo Mansion and will run from 7:30 a.m. until 1:15 p.m. Other co-sponsors of the program are the St. Thomas More Society, Catholic Charities of Dallas and the Human Rights Initiative. The Immigration Law Study Group is off to a great start, and if things go as planned, it should be approved as our newest Section at the DBA’s September Board Meeting. However, in order to accomplish this result, we will need to increase the number of DBA members who join the Study Group and attend its meetings. I strongly encourage anyone who has an interest in immigration law to join this Study Group and get involved with its projects and programs. By doing so, you will help ensure that this exciting   HN new Study Group will become our 30th Section. 

Play Golf and Support Pro Bono Register now for the 23rd Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program.

Thursday, April 30, 2015 Brookhaven Country Club

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: Established 1873

The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley 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: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karina Sanchez, Monique Scott Program Assistant: Patsy Quinn Secretary: Ellie Pope


Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

Registration includes a sleeve of golf balls, goody bag, lunch, on-course beverages, post-tournament reception and awards dinner. The tournament is a 4-person scramble format—limited to the first 128 golfers. Plus, we have first-rate team awards for 16 teams, a raffle and other fun contests and games! Check-in and practice range open at 10 a.m. and shotgun start is at 1:00 p.m. A reception and awards dinner will follow the tournament at approximately 5:00 p.m.

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@ (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion.

Register online at For more information on sponsorships, contact Rhonda Thornton at

Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

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

ADR/Trial Skills

Preservation of Error: It Is More Than Shouting “Objection!” by Chad Ruback

You do not need to be an appellate geek to understand that error can frequently be preserved by shouting “Objection!” Anyone who has a television knows that is what you are supposed to do when things do not go your way in the courtroom. However, many errors cannot be preserved orally. Here are 10 situations in which a document must be filed to preserve error: If your client is not a resident of Texas and has not had “minimum contacts” with Texas, but is nevertheless sued in Texas, you must file a special appearance to contest the court’s jurisdiction. You must file the special appearance before filing an answer, motion or any other pleading. A special appearance must be verified. If your client is sued in an improper county, you must file a motion to transfer venue. You must file the motion before or concurrently with the filing of answers, motions or any other pleading except a special appearance. The motion to transfer venue must be filed with a supporting affidavit.

If your client is sued in Texas, but a court outside of Texas has jurisdiction over the case and is a more appropriate forum, you must file a motion asserting forum non conveniens. In a personal injury or wrongful death case, you must file the motion not later than 180 days after filing your answer. In other cases, you must simply file the motion before commencing trial. If your opposing counsel has a conflict of interest, you must file a motion to disqualify. You must file the motion shortly after learning of the conflict. If the judge should be recused, you must file a motion seeking recusal. Texas Rule of Civil Procedure 18b(2) lists situations in which a judge should be recused. You must file the motion at least 10 days before the hearing or trial from which you would like the judge recused. When the judge is assigned to the case less than 10 days before the hearing or trial—or when the basis of recusal is not known until less than 10 days before the hearing or trial—you must file the motion as soon as possible. The motion must be verified. If you have a trial setting so soon as

to keep you from completing discovery, you must file a motion for continuance. Although there is no state-wide deadline to file the motion, such a deadline is frequently imposed by local rules. The motion must be filed with a supporting affidavit. You must file a plea in abatement if your client (1) is sued by a plaintiff who does not have the capacity to sue; (2) is sued but does not have the capacity to be sued; (3) is sued but other necessary parties have not been sued; or (4) is sued while a substantially identical case is already pending between your client and the plaintiff. You must file the plea in abatement without much delay. There is no bright line rule as to how much delay is too much. In any case, you must file the plea before your case goes to trial. The plea must be verified. If your client is sued and the plaintiff’s petition fails to give you “fair notice” of the facts and/or the legal theories under which the plaintiff seeks to recover, you must file special exceptions. You must file the special exceptions before the jury charge is given. In a non-jury case, you must file the special exceptions before the court signs its judg


Tuesday, March 31 ~ 5:30 to 7 p.m. ~ Belo Mansion Auditions for Bar None XXX will take place March 31 at Belo! All who audition will be cast. The Bar None show, to be held at the Greer Garson Theater June 10-13, benefits the Sarah T. Hughes Diversity Scholarships. Choreographers Also Needed. Contact Rhonda Hunter at Questions? Contact Bar None’s Director, Martha Hardwick Hofmeister, at (214) 780-1400 or

ment. In a situation in which a judge has served as fact finder and has ruled against you, you should request findings of fact. You should also request findings when the trial court’s judgment differs substantially from the jury’s verdict. You must file the request within 20 days of the date the judgment was entered. If the trial court fails to enter findings within 20 days of your request, you must file a notice of past-due findings within 30 days of the date you filed your initial request. If findings are given, but they do not address all of the issues important to you, you must file a request for additional findings within 10 days of the court’s entering the initial findings. If you lose at trial and there was not sufficient evidence to support the jury’s finding of liability or award of damages, you must file a motion for new trial. You must file the motion within 30 days of the date the judgment was signed. You must pay a filing fee   HN when filing the motion. Chad Ruback is a solo practitioner. He can be reached at


Saturday, August 22, 2015

Pro Bono Rocks at the Granada Log on to or contact for sponsorship informa�on.   Proceeds benet DVAP

6 H e a d n o t e s l D a l l a s B a r A s s o ciation 


March 2015

ADR/Trial Skills

Voir Dire and Separating the Sheep from the Goats by Britta Erin Stanton

We all know first impressions matter. According to a Harvard University study, we have five seconds to make a good first impression. If that first impression is bad, it takes eight subsequent positive encounters to change a negative opinion. What goes into creating that first impression? First impressions are based 55 percent on your appearance and body language, 38 percent on your tone of voice, and 7 percent on what you actually say, according to University of Illinois Extension statistics. For trial lawyers, that means nonverbal communication will significantly affect your first impression. In a jury trial, you have a chance to make a positive first impression during

voir dire. While voir dire is an invaluable time to make a great first impression on your future jurors, do not forget the importance of the voir dire process itself; you need to pick a great jury! Of course, jury selection is important, but jury deselection can be outcome determinative. Shift your voir dire focus from who is best for your case to who is worst for your case. Your goals are to (a) eliminate jurors with an agenda contrary to your client’s, and (b) elicit the bias of the jurors you do not want so that you can instruct those you do want. How do you deselect your voir dire panel for the best jury? First, have a plan. Know your theme, who your demographic is and what theme will resonate with your chosen demographic. Ask questions about those themes (be


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they “fairness,” “David v. Goliath” or even “Battle of the Titans”.) Second, get your jurors talking. Ask open-ended questions. Your questions can be about almost anything—what you want to learn is the juror’s personality. Next, watch and listen. Pay laserlike attention to the answers of your panelists. In addition to their answers, note the panelists’ movements, body language, facial expressions and other mannerisms. Recall that the jurors created a first impression of you based 90 percent on things you did and the way you appeared—not based on what you said. Why do people so heavily rely on non-verbal communication? Because we have learned those clues are reliable. Use that fact to your advantage: watch your jury. See what books they are reading, if they are checking their phones for messages or emails, and if they carry a newspaper or a mystery novel. Look at clothes, jewelry, shoes and purses. Observe as much as you can for “free” voir dire that does not eat up your precious time with questions and answers. Employ your entire trial team, your client and any fans you may have sitting in the gallery to help watch and gather information about your prospective jurors. After you have learned about your venire members, it is time to separate the sheep from the goats. Who are sheep? Followers. Perhaps you have watched dogs herd sheep at the State

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Fair or the Stock Show. Sheep are easy to herd because sheep are followers. Thus, the sheep who end up on your jury are not as important as your goats. How do you identify the goats? Goats are often social leaders. A goat might raise her hand often and volunteer answers during voir dire. Perhaps he is making friends while the panel is waiting to be called into the courtroom. She finds a group of lunch buddies. He talks to others in the hallway and the bathroom. These goats are easy to spot. Goats are also often independent. He may sit back, paying attention, with a look of quiet confidence on his face. She may purse her lips in disagreement with what a lawyer or panelist is saying. He may be contemplative, but not necessarily outgoing. These goats can be harder to spot. But both types are important to identify. A single favorable or contrary goat can lead an entire jury of sheep one way or the other. When exercising peremptory strikes, I strike the semi-unfavorable goats over the unfavorable-sheep. If you do not, before you know it, your verdict lies in the hands of one man or woman. On the other hand, two strategic jurors can persuade a group of sheep to your side of the case. Get to know your panel, find the goats, and the sheep will surely follow.   HN Britta Stanton is a partner at Lynn Tillotson Pinker & Cox, LLP and the vice-chair of the DBA’s Trial Skills section. She can be reached at

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

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March 2015

The Importance of Legal Aid ing when I am asked to give back to others. I grew up in Crowley, a small town in Louisiana. My parents were divorced when I was 2, and my mom raised me and my sister on her own on a salary that barely exceeded the poverty line. Growing up, we were fortunate not to have any significant challenges that further tested our limited means. If we had, we would not have been able to afford to access the legal system, and we probably would not have known where to turn. Whether in rural Louisiana or urban Dallas, prosperity and opportunity are not widely shared, and that means that many people lack access to the basic needs of life, not to mention our legal system. In Dallas County, for example, approximately 25 percent of the population qualifies for legal aid. To put that into context, to qualify for legal aid, an individual must have an income below $14,588 per year and a family of four must have an income of less than $29,813 per year. DVAP seeks to provide

by Stacey Doré

Reprinted with permission from The Texas Lawbook Last year, I was asked by Michael Hurst, an exceptional trial lawyer here in Dallas and a stalwart of pro bono work in the community, to serve as an honorary co-chair of the annual Equal Access to Justice Campaign along with the esteemed Jack Balagia, Vice President and General Counsel at Exxon Mobil Corporation. I was honored to take on this important challenge with Jack and the many other members of the Campaign, including co-chairs Laura Benitez Geisler and Robert Tobey. The mission of the Equal Access to Justice Campaign is simple: to raise money for the Dallas Volunteer Attorney Program (DVAP), which provides civil legal aid to the lowincome in our community. While I have been truly blessed as an adult, I often remember my own upbring-

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crucial legal services to these folks, many of whom live well below the poverty line. Last year, DVAP opened over 5,200 new cases and closed over 4,300 cases. The cases involved a wide range of important matters, including, among others, family, housing, consumer and wills. While the number of cases is impressive, the demand continues to outstrip the available resources, leaving critical legal needs unmet. According to an American Bar Association report, only about 20-25 percent of the civil legal needs of lowincome and poor Texas are being met. Similarly, Legal Services Corporation reports that for every one person helped by legal aid, a qualifying individual is turned away. I believe that as members of a unique and special profession, we can and should do so much more. That is what we strive to do every day here at EFH. We have a motto in our legal department—“See It. Own It. Solve It.” We apply this motto in our daily work and in our pro bono service and are dedicated to identifying needs, taking ownership of service opportunities and helping to solve the problems facing those less fortunate in our communities. We encourage our attorneys, non-lawyer employees and outside counsel alike to support pro bono projects that improve the quality of life for the company’s customers and the communities in which our employees live, work and serve. For example, in Dallas, we work closely with DVAP, both through staffing their legal aid clinics in which lawyers assist with client intake and through fundraising. In addition, some of our lawyers take on pro bono matters from DVAP. Additionally, last year, our legal department started working on a new guardianship project with Vinson & Elkins and Texas Scottish Rite Hospital for Children. This project assists lowincome families whose disabled chil-

dren are approaching the age of majority. These families need legal assistance obtaining guardianships over children with significant medical and mental issues who are not capable of making medical and legal decisions on their own. We also try and give back in other ways, including participating in the annual Dallas Bar Association Habitat House project and by actively participating in the company’s annual United Way campaign. I know the demands—professional and personal—placed on each of us are tremendous, but as we begin this new year, I ask that in 2015 you think of how you can help give back with time or treasure. For treasure, I ask that you consider making a contribution to the Equal Access to Justice Campaign. We have set an ambitious fundraising goal for the year and every dollar helps serve legal needs for those less fortunate in our community. To donate, go online to Or send your check payable to the DBA Community Service Fund to 2101 Ross Avenue, Dallas, 75201. They accept Visa, MasterCard and American Express. For time, please consider how you can use your special position as a member of the bar to make a difference in the lives of people who cannot afford legal representation. You can do that in a number of ways, including by providing your services to DVAP. For more information, please visit the DVAP website or contact my good friend, Chris Reed-Brown at reed-brown@   HN or (214) 243-2243. Stacey Doré is executive vice president and general counsel of Energy Future Holdings Corp., a Dallas-based energy company with a portfolio of competitive and regulated businesses, including TXU Energy, Luminant and Oncor. She can be reached at

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

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

March 2015

How to Make Sure Your Website’s ToS Protect Your Business by Peter S. Vogel

Virtually all businesses and lawyers rely on the Internet to conduct business, so it is critical that all lawyers understand what contractual terms should be included to prove maximum protection. Most lawyers know that there is a link at the bottom of webpages for Terms of Service (ToS) or Terms of Use (ToU), or the like. Also if goods and services are sold on the website lawyers generally expect to see a Click Agreement which must be approved by the customer in order to complete the purchase. However about 99 percent of Internet users never look at the ToS, and 99.99 percent never look at Click Agreements. So what is the consequence? Well these legal terms in the ToS and Click Agreements are mostly upheld by courts around the world unless there is a provision that is unlawful in that jurisdiction. Accordingly lawyers can provide great benefit to clients by advising them about what to include in ToS and Click Agreements.

How Do Clients Create ToS?

Most often our clients (and lawyers

too) go to websites of companies that provide the same business services or goods, and copy word for word what the ToS and Click Agreement from the website, only changing their name, addresses, and maybe the state for jurisdiction. Is this a good idea? Maybe, but without taking the time to consider the legal consequences of having ToS or Click Agreements perhaps your clients are at risk. What follows are some legal terms that lawyers should consider when advising clients about ToS and Click Agreements.

Bad Content

Websites need to specifically prohibit users from posting content that is offensive or violates law including the CAN-SPAM Act, so these limits should be spelled out. For instance here are some provisions from Facebook’s ToS regarding “Protecting Other People’s Rights”: 1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.


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2. We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies. 3. We provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page. 4. If we remove your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal. 5. If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate. 6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Book and Wall), or any confusingly similar marks, except as expressly permitted by our Brand Usage Guidelines or with our prior written permission. 7. If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it. 8. You will not post anyone’s identification documents or sensitive financial information on Facebook. 9. You will not tag users or send email invitations to non-users without their consent. Facebook offers social reporting tools to enable users to provide feedback about tagging.

Copyrights and Trademarks

As noted above Facebook specifically carves out protection of Intellectual Property. But one does not need to be an Intellectual Property specialist to understand the importance of clearly stating that the copyrights and trademarks on a website are owned by the host, or being used with a license. So it is important to let visitors to a website know who actually owns the copyrights and trademarks. If the only way the copyrighted or trademarked materials are available is by registering on the website through a Click Agreement then whatever restrictions the website wants should be clearly stated.

Limitations of Liability

Most lawyers recognize the benefit of reducing legal risk so would assume there have to be provisions regarding limitations of liability. Many websites expect the visitors to agree to no liability for direct, indirect, consequential, and exemplary damages. Since there are no other types of damage categories, that covers about everything.

Jurisdiction and Venue

If parties agree in the ToS or Click Agreement that the laws of Texas apply and venue is in Dallas, Texas most courts will oblige unless there is something unreasonable. But if jurisdiction and venue are not included you are at the   HN mercy of where a suit is filed.

Peter S. Vogel is a partner at Gardere Wynne Sewell LLP. He can be reached at pvogel

Attorneys are needed (at 6:30 p.m.) to provide legal advice to those who cannot afford an attorney. Support volunteers are also needed (at 5:30 p.m.) to help coordinate the legal clinic. Mentor-attorneys will be available to assist. Sponsored by the DVAP, a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas. To volunteer, contact Chris Reed-Brown, at (214) 243-2243 or

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Dal l as Bar A ssoci ati on l Headnotes 11

ADR/Trial Skills

Admissibility Through the Rule of Optional Completeness by Joshua Sandler

In certain scenarios, effective employment of the optional completeness rule can open up a narrow window of admissibility for otherwise inadmissible evidence. When trial lawyers think of optional completeness, many recall a scenario involving a lawyer for one side reading only a portion of deposition testimony into the record and the opposing lawyer seeking to contemporaneously read the remainder of that deposition testimony into the record. But, if applied skillfully and under the right circumstances, the rule of optional completeness can supply a trial attorney with a far more devastating tool. For purposes of fully explaining evidence introduced by the opposing party or to make that evidence fully understood, the Texas Rules of Evidence permit the attorney utilizing the optional completeness rule to introduce evidence of some other act, declaration, writing or recorded statement. Specifically, the Texas Rule of Evidence 107 states that “[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.” (emphasis added). The rule also states that the term “‘[w]riting or recorded statement’ includes depositions.” [On April 1 of this year, amendments governing the

wording—not the substance—of the optional completeness rule officially go into effect.] This aspect of utilizing the optional completeness rule to offer other evidence appears not to be well understood by civil practitioners and, thus, is infrequently utilized, particularly compared to the rate at which criminal trial attorneys employ the rule. Yet, the fact remains that if one side offers evidence into the record which causes either confusion, distortion or a false impression, Rule 107 permits the opposing side to offer other evidence (i.e., any other act, declaration, writing or recorded statement) into the record. To do this, two prerequisites must be met. “First, some portion of the matter sought to be ‘completed’ must have actually been introduced into evidence.” Crosby v. Minyard Food Stores, 122 S.W.3d 899, 903 (Tex. App.—Dallas 2003, no pet.). Merely referring to a statement does not invoke the rule. “Second, the party seeking to complete the matter must show that the remainder being offered under rule 107 is on the same subject and is necessary to fully understand or explain the matter.” Id. If these threshold requirements are met, evidence used to fully explain a matter opened up by the other party need not even be ordinarily admissible. Holifield v. State, 856 S.W.2d 575, 578 (Tex. App.—Beaumont 1993, pet. ref ’d); see also Elmore v. State, 116 S.W.3d 809, 813-14 (Tex. App.—Fort Worth 2003, pet. denied) (under the doctrine of optional completeness, a letter written by co-defendant alleging compliance with the law should

not have been excluded on the grounds of hearsay). For instance, to correct against a false impression created by evidence introduced by the other side and to fully explain the matter, an otherwise inadmissible email might now become admissible by operation of the optional completeness rule. So, trial attorneys should always be on the lookout for optional completeness opportunities. That said, admissibility is not guaranteed by the optional completeness rule. If the unfair prejudicial effect of the evidence or its likelihood of confusion of the issues substantially outweighs its probative value, the court may still exclude the evidence under Texas Rule of Evidence 403. See Taylor v. State, No. 05-12-00540-CR, 2013

WL 4081422, at *9 (Tex. App.—Dallas Aug. 13, 2013, pet. ref ’d). The rule of optional completeness can do far more than secure a contemporaneous reading of deposition testimony into the record (in fact, Rule 107 does not even provide the ability to obtain a contemporaneous reading; that issue is covered by Rule 106). Simply put, if used correctly, the rule of optional completeness could give the trial attorney a distinct, decisive advantage while also surprising the opposing party. Consequently, careful consideration of these evidentiary issues are not only worthwhile, they could very well   HN prove to be a game changer. Joshua Sandler is an associate at Gruber Hurst Johansen Hail Shank LLP. He can be reached at


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

Examining an Interpreter-Assisted Witness: Tips and Techniques by Joshua Abrams

The questioning of a witness in direct or cross examination whose comments are being interpreted to a jury presents unique challenges that must be carefully considered before trial begins. As with all parts of trial strategy, preparation is critical. In direct examination, when the key objective is to present a clear and accurate account of the event, interpreter-assisted questioning that has not been carefully thought out can weaken the message one is trying to relate. Specifically, a lack of preparation can result in the overpowering of the witness’ narrative and washing away of any connection the witness may have developed with the jury through the natural demeanor and emotion associated with the telling of the story. To avoid this, the questioner, witness, and interpreter should run-through the topics of examination before trial. The attorney should check that the tone and mannerisms of the interpreter are aligned with the witness’ bearing. Then, at trial, the style of the attorney’s questioning should pick up on the outward behavioral tendencies of the witness and interpreter, and adjust accordingly. Variances distract, and distractions will diminish the questioner’s ability to get the story out. Further, it may ultimately reduce the degree to which the jury believes the witness. For that reason, during the dry-run of question and answer, legalese and acronym-usage should be noted, and potentially rephrased or removed. In order to prevent unnecessary miscommunication during the actual examination, the lawyer and interpreter should be cognizant of the witness’ idiosyncrasies and phrasing, and work to ensure that it is not a hurdle in the jury’s understanding of the case. To foster an environment in direct examination where the witness remains the primary focus and the questioner fades into the background and acts only as the invisible voice, the questioner should use

demonstrations. This will clarify the message and enhance the credibility of the witness. One example would be to have the witness step down from the witness stand to answer questions directly in front of the jury. This direct approach can create a more personal connection with the jury and compensate for any unavoidable language confusion. The art of cross-examination requires even more adeptness when questioning an interpreter-assisted witness for the simple reason that the examiner will not have the opportunity to prepare with the witness or interpreter beforehand. Therefore, cross-examination through an interpreter may require a change in both scope of the questioning and its technique. Because the jury will be hearing both the answer both in English and the witness’ native language, it may be harder for some jurors to remember the lawyer’s attack areas. For the same reason, questioning at a brisk pace becomes harder even with short and simple questions. For that reason, tighter, more succinct questions that focus on the major attack areas should be employed. Witness control takes on another dimension during an interpreter-assisted cross-examination. The interpreter may sound in pitch and volume, and display mannerisms dissimilar to the witness’. But the degree to which this is noticed by the jury will create an opportunity in closing argument to comment on the witness’ disinterest or lack of credibility. Whether in direct or cross-examination, one should not pause in the middle of asking a question. Given that the jury is hearing two translations, nothing is more distracting to a jury than the attorney not finishing their thought. In the end, let the questioning be natural and design the approach for only one conclusion in mind-to have the truth reveal   HN itself.

March 2015

Renew Your Membership and Attend Exciting CLEs! As you renew your 2015 membership, consider joining or adding a DBA Section to take full advantage of all the opportunities offered by the DBA.

The Professionalism Committee hosted a CLE with speakers (left to right) Judge Sidney Fitzwater, Professor Fred Moss, George Chapman and Greg Huffman.

Michael Tigar (center) presented “Nine Principles of Litigation—and Life” in January at Belo. Shown with Mr. Tigar (left to right) DBA President Brad Weber, Robert Tobey and Britta Stanton. Sponsored by the Trial Skills, Business Litigation, Criminal Law and Tort & Insurance Practice Sections.

Joshua Abrams is an Assistant District Attorney at the Dallas County District Attorney’s Office. He can be reached at joshua.

What To Do When Lawyers Exhibit Signs of Incapacity Friday, March 20, Noon, at Belo Ethics 1.00 RSVP to Sponsored by the CLE and Peer Assistance Committees.

The Sports & Entertainment Law Section hosted Tony-Award winning actor Greg Jbarra (left) at a recent CLE luncheon. Shown with Section officers Sally Helppie and Mike Farris.

Jim Cowles Selected for 2015 DBF Fellows Justinian Award continued from page 1

and trusted attorneys in our community were mentored by Jim Cowles. For his wise counsel and his inspiring example, we owe him a debt of gratitude.” Brent Cooper, of Cooper and Scully, P.C., credits Mr. Cowles for having immeasurably influenced his career: “I clerked with Jim Cowles and spent the first 15 years of practice under Jim…. Jim set a very high bar not only for the level of his skills, but more importantly for the ethics and integrity with which he conducted himself. It has been a tremendous honor and privilege knowing and practicing with Jim. I can honestly say there is no doubt in my mind that I would never  have  accomplished what I have without his tutelage.”   Prior to joining Strasburger, I also had the pleasure of practicing under Mr. Cowles. During that time, I realized that Mr. Cowles truly loves being a lawyer. Seeing him practice with such enthusiasm inspired me, and all those around him.

I should add only that his laugh makes other people laugh, his words are somehow always wise, and he has an uncanny ability to give compliments that are genuinely unforgettable. In short, generations of attorneys have benefitted by the example set by Mr. Cowles. He is a gentleman, a courtroom legend, and model of what every lawyer should be. As stated best by Ms. Cherry, “if you throw a stone in water, you will produce ripples. Jim Cowles has produced a lot of ripples which have benefited the legal community and will continue to benefit the legal community for years to come.” For information about the Dallas Bar Foundation’s 24th Annual Fellows Luncheon on April 1, please call Elizabeth Philipp at (214) 220-7487 or visit the website at   HN Kathryne M. Morris is an associate at Strasburger & Price, LLP. She is Co-Chair of the Morris Harrell Professionalism Committee and Chair of the Transition to Law Program. She can be reached at .

M arc h 2 0 1 5  


D al l as Bar A ssoci ati on l Headnotes 13

ADR/Trial Skills

Cognitive Bias: It Happens to You! by Charles Penot

We like to think of ourselves as rational individuals who, when faced with a decision, collect information, assess options and make optimal choices to realize our desires. But psychologists tell us that many human decisions are made by the use of heuristics. Heuristics are shortcuts or rules of thumb that we implement to solve problems and make choices. They work well in many situations, but heuristics can also yield systematic errors in our thinking. Psychologists call these errors cognitive biases. Here are some of the more common cognitive biases that may be relevant to individuals involved in negotiations or decisions like when, whether and on what terms to settle a case: Priming is the process by which some stimulus in our environment activates implicit memories and associations, which, in turn, influence our thoughts and behaviors without our being consciously aware of them. In one famous study, students were asked to unscramble words that were related to aging, such as “bald, gray, wrinkled, Florida, forgetful.” The students were then timed as they walked down a hall, ostensibly to report to another room for another experiment. Primed with “old” words, they walked more slowly than those who had not been so primed. Availability bias refers to our mental habit of relying on examples that most easily come to mind when making decisions, rather than fully and completely researching the facts and relevant statistics. Anchoring, a cousin of priming, is

used to describe the tendency of individuals’ estimates of unknown quantities to be influenced by an initial value that was considered or primed rather than carefully and fully vetted and estimated without regard to prior primed values. Framing effect is the phenomenon that mere inconsequential alterations in the language used to present choices can influence human choice. This effect can be pronounced when it is used to frame a choice as one involving gains or losses. Many people tend to be risk averse, i.e., they would take a slightly smaller sure thing over the higher expected value of a risky option, when the frame of reference is a possible gain. But the same people become risk seekers when the choice is framed as involving only losses. Sunk cost bias describes the tendency of individuals to ramp up their commitment to a course of action to which they have already committed substantial money, time, resources, or effort, rather than focusing only on the future and the marginal costs and benefits of proceeding. The expression “throwing good money after bad” aptly captures the nature of this cognitive trap. Confirmation bias is the tendency many people have to search out only information that confirms their preconceived ideas and ignore contrary information. Hindsight bias concerns our tendency to see past events as inevitable and predictable, even if they were not so beforehand. Halo effect involves the tendency we have to let our impression of a person, entity or thing influence how we judge

the character or other properties of that person, entity or thing. Overconfidence bias means that one’s subjective confidence in one’s own predictions and judgments is consistently higher than is warranted by the objective accuracy of those judgments and predictions over time. Fundamental attribution error involves our tendency to attribute the actions of others to fundamental aspects of their character or other internal causes, without regard to relevant external circumstances. Illusory correlations entail seeing connections where none exists, and especially attributing causation without warrant. The list goes on. So what are we to do to avoid these traps in our thinking? The question is more easily posed than answered. We are often blind to the cognitive processes that give rise to these biases.

And many of these processes are “hardwired” into how the mind works as a result of our evolutionary history. Nevertheless, awareness is the first step, and we are often better at seeing this type of flawed reasoning in others than in ourselves. Thus, maybe the old saying that “two heads are better than one” is true when it comes to avoiding biased thinking, provided one is committed to healthy, open dialogue. One role of a mediator, for example, is help the disputants see their blind spots. Be open to contrarian analysis, ask disconfirming questions and entertain multiple hypotheses. Slow down and be mindful: is there a number “out there” that may be operating as an anchor? Consult an outsider who has not been exposed to the anchor. And always be open to new   HN data and new perspectives. Charles Penot is a trial lawyer and an attorney-mediator in Dallas. He can be reached at

DVAP Probate Mini-Seminar Monday, March 9, 11:30 a.m.-1:30 p.m. at Belo Part I: Property Characterization, Intestate Estate & Ethics Speakers: Dani Smith, Rhonda Hunter, Hon. John Peyton, Mark R. Caldwell and Hon. Brenda Hull Thompson Part II: Estate Planning & Probate for Digital Assets Speakers: Hon. Will Hartnett, Angela Laughlin Brown and Hon. Brenda Hull Thompson MCLE 2.00, Ethics 1.00 For more information, contact Sponsored by the DBA Probate, Trusts & Estates Law Section, Dallas County Probate Court and DVAP

Trained in mediation, arbitration, case evaluation, and other aspects of alternative dispute resolution

“ A lawsuit is not like a fine bottle of wine…it does not get better with age.” When legal cases seem to drag on endlessly, Dallas/Fort Worth residents know that Julie Johnson is the attorney to call. The Law Office of Julie Johnson prides itself on being a onestop source for effective and result oriented mediation services. Seasoned trial attorney Julie Johnson has over 20 years of experience assisting Texans with their personal injury, employment law, and family law cases. She brings her vast experience to mediation, where her skills as a qualified ADR professional in Texas allow her to facilitate a fast, fair, and less-stress resolution to lagging cases. If you’re looking for a faster resolution to a personal injury claim, contract dispute, or divorce without the stress of courtroom procedure and costly attorneys fees, contact Julie Johnson for mediation services!

Accepting Referrals

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


March 2015

ADR/Trial Skills

Why Do We Make It So Complicated? Good Question(s)! By Susan M. Halpern

All lawyers are information gatherers, whether you are a transactional lawyer trying to determine a client’s goals and the nature of a client’s problem, or a trial lawyer seeking information from a key witness. And all lawyers obtain information by asking questions. We can help the process by focusing on question form and eliminating habits we acquired as laypeople. There are three types of questions. Each type has its own place and purpose. First, we have open-ended questions. Open-ended questions are the classic “reporter” questions: who, what, when, where, why and how are a few. Open-ended questions seek a narrative from the witness. They tell us. In depositions, they are an efficient way of obtaining information. At trial, they provide a witness on direct examination with the opportunity to tell a story. We say little; the witness says a lot. A good open-ended question is short and to the point. When employing an open-ended question, avoid front-loading the question with phrases such as “can you,” “could you,” “would you” and the like. In our layperson lives, these words serve to soften demands for infor-

mation (“Can you tell me how to get to Main Street?”). In our lawyer lives we need greater efficiency. If we want listeners to hang on every word, every word must count. Listeners quickly tire of the task of editing out unnecessary words. As well, we must learn to be comfortable with letting the open-ended question stand on its own, and refrain from suggesting possible answers. Ask “why did you do that” and stop. Do not add: “did you think of it on your own or did someone tell you to do that?” Such additions close down the open-ended question with your assumptions. The second type of question is a leading question. Leading questions are short, declarative statements of fact. Leading questions are at the other end of the spectrum from open-ended questions. Here, by design, the witness says very little. We tell them. We seek the witness’s agreement or disagreement to our statement, and nothing more. Leading questions are typically used at trial during cross-examination, where we seek to control tightly what the witness is saying. In depositions we use leading questions to obtain admissions or to confirm information. Good leading questions contain no modifiers, conclusions or argumenta-

Professionalism Tip

tive phrases. When skillfully strung together leading questions can be used effectively to tell a story or suggest a conclusion, which is precisely what we do on cross-examination at trial. If you choose to test the waters with modifiers, do so slowly and carefully. Start with the fact alone, then add modifiers progressively and in an escalating sequence. At some point, the witness will push back. Move on when they do. Finally, we have the closed or onefact question. Closed questions seek information about a particular fact. “Did you go to the meeting?” “Were you in the cross-walk?” These questions generally limit a witness to a yes or no answer and thus are not open-ended, but neither are they leading because they do ask for information. Closed questions can be used to confirm facts, or as headnotes to signal a move to a different topic. Rather than saying, “Let’s talk about the meeting,” you can ask the witness, “Did you go to the meeting?” You have effectively drawn everyone’s attention to the meeting, and can then proceed to ask about the meeting. Because they genuinely seek information, closed questions are not considered to be leading. However, closed

questions can be substantively leading if they are misused to suggest answers to a witness who is floundering. Judges are not appreciative of such tactics. You can combine question forms effectively in any interview or examination. Use closed questions to signal topic changes and confirm background details (setting the scene). This draws witnesses back to the events, helping them recall more, and allows listeners to form a mental picture of events and makes it easier for them to retain information. Use open-ended questions to find out what happened. Let your theories and expectations guide your questions, but don’t let them limit the answers. Let the witness confirm that the answer is complete. Finally, use leading questions to confirm that the information is appropriate. Practicing questions aloud helps you to build auditory muscle memory. It helps you to learn what a good question sounds like. With practice, your examinations and fact-finding will become more efficient and effective.   HN Susan M. Halpern is the founding partner of The Halpern Law Firm PLLC and teaches Trial Advocacy at SMU Law School and at in-house seminars throughout the country. She can be reached at

Judicial Investitures at Belo

I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct. Find the complete Creed online at Excerpt from the Texas Lawyers Creed

Texas Tech University School of Law's Regional Externship Program allows third-year students to gain full-time, participative legal experience in DFW

The DBA hosted the Judicial Investitures of Probate Court Judges Margaret Jones-Johnson, left, and Ingrid Warren, right, shown with DBA President Brad Weber, on January 21.

The DBA hosted the Judicial Investitures of Criminal District Court Judges (left to right) Jennifer Bennett, Tammy Kemp (back row), Elizabeth Frizell, Amber Givens, Stephanie Mitchell and Brandon Birmingham, shown with DBA President Brad Weber (far left), on January 22.

Marc h 2 0 1 5  


Dal l as Bar A ssoci ati on l Headnotes 15

ADR/Trial Skills

Maximizing Your Mediation: Communication is Critical by Jay Zeleskey

Knowledge is a very powerful negotiation tool, but to have the knowledge necessary to be an effective advocate, you must communicate with your client, opposing counsel and mediator. The following suggestions are not hard and fast rules. However, you should at least consider each suggestion when preparing for mediation.

is an excellent opportunity to resolve their case because everyone needed to settle the case is present. Your client should also be prepared for an “unreasonably high demand or low offer” from the opposing party, especially if it is a response to your “unreasonably high demand or low offer.” The more the client understands about the mediation process, the more comfortable they will be in negotiating a resolution.

Communicate with your client Communicate with Meet with your client, in person, at least 60 days prior to the mediation. As the law- opposing counsel yer, you must know your client’s positions, interests (expressed and unexpressed) and issues in order to advocate effectively on your client’s behalf. What is your client’s real goal? What does your client need? What is important to your client? Why is it important? What will motivate your client to resolve the case? Are there outside factors affecting your client’s negotiating position, such as a spouse or supervisor who is pressuring your client? During your meeting, prepare your client for the mediation by frankly discussing the case’s strengths and weaknesses as well as the opposing party’s positions and evidence. An unprepared client may develop unrealistic expectations, become entrenched in an unrealistic position or be surprised by new information presented at the mediation, and clients generally do not react well to surprises. Additionally, your client may have critical information that you will not know unless you ask the client. Explain the mediation process to your client. Clients look to their lawyers for guidance in an area they know little about. If your client has never participated in a mediation, explain to the client what will most likely happen at the mediation and that mediation

Do not wait until you get to the mediation to hear the opposing party’s positions and evidence for the first time. Call opposing counsel prior to the mediation to discuss their position and the evidence that supports it. Politely ask the opposing attorney to explain their client’s position and listen carefully without interrupting. In addition to developing a better rapport with your opposing counsel in your conversation, you can also ask if his client needs any information from your client and whether he believes his client would benefit from an opening or joint session. Finally, do not assume the opposing counsel knows or understands the merits of your case. Explain your case and the evidence that supports your position. If you discuss your weaknesses with the opposing counsel, you can then explain how you will minimize your weak points to the jury. 

and legal issues, so the mediator can clearly explain and argue your client’s position to the opposing party. Your confidential position statement could include: • who will attend, • brief factual summary, • summary of the parties’ legal positions and a candid assessment of each party’s strengths and weaknesses, • recent developments in the case, • history of settlement negotiations, • case’s present posture (including depositions, hearings or the trial setting), • description of any sensitive issues that may not be apparent but may influence settlement negotiations, and • critical documents with the most important parts highlighted for easy reference. In addition to sending a position statement, a telephone conversation between you and the mediator can be very helpful

Communicate with your mediator

To maximize your time in mediation, send information to the mediator in advance of mediation to give the mediator a better understanding of the factual issues

in setting the stage for a successful mediation. This provides you an opportunity to ask the mediator if he or she needs any particular information and advise the mediator about any unique facts about your client, the opposing party or the relationship between the opposing party and your client. Discuss with the mediator whether an opening session is necessary, the pros and cons of an opening session and your concerns of the effect an opening session will have on your client and/or the opposing party. Communicating with your client, your opposing counsel and the mediator prior to the mediation will not only lay the foundation for a successful mediation, but will also result in a grateful and satis  HN fied client.  Jay Zeleskey is a mediator with Zeleskey Mediations. He can be reached at

Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2015 DBA Member Directory to get great exposure for your practice. For just $25 per listing you will be included in both the printed and online DBA Member directory. Deadline: April 1, 2015 | Listing cost: $25.00 For more information and an order form contact Judi Smalling at or (214) 220-7452.


T U E S DAY, M AY 12 , 2015

2015—A Year to Help Your Clients Do What They Should Have Done in 2014:

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Breakfast 7:00am · Program 8:00am to 11:15am · $80 Early Bird Price until March 31 Seating is Limited · Communities Foundation of Texas · 5500 Caruth Haven Lane To register or for more information, visit or call 214.750.4144 SPONSORED BY:

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George J. Nachman Committee Chair, Attorney at Law Kalita Beck Blessing Quest Capital Management, Inc. Brent E. Christopher Communities Foundation of Texas Edward A. Copley Akin, Gump, Strauss, Hauer & Feld LLP

Alan K. Davis Meadows, Collier, Reed, Cousins, Crouch, & Ungerman, LLP Jack M. Kinnebrew Strasburger & Price LLP J. Richard Joyner Tolleson Wealth Managment

Norman A. Lofgren Gray Reed & McGraw, PC Kathy Muldoon Carter Financial Management Kenneth B. Travis TravisWolff

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


March 2015


Ethical Pitfalls in Mediation and Settlement by Kelli Hinson

Many malpractice complaints and ethical fumbles arise at the end of the case, during mediation and settlement. When the end of the case is in sight, lawyers must remain vigilant and take care not to step into any traps for the unwary.

Keep Your Client Informed About Settlement Discussions

Texas Disciplinary Rule of Professional Conduct (Texas Rule) 1.03 requires a lawyer to keep her client informed about the status of a matter and to make sure the client understands what is happening in order to make informed decisions regarding the representation. The comments to Texas Rule 1.03 make clear that this duty extends to opportunities for settlement and that a lawyer “who receives from opposing counsel either an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance.” Texas Rule 1.02 requires the lawyer to abide by the client’s decisions concerning the representation, specifically including whether to accept an offer of settlement. If a dispute later arises with the client about whether he was informed

about a potential settlement opportunity, a letter or email setting out the proposed offer and the lawyer’s recommendation can be invaluable. The Texas Rules recognize a limited exception for situations where prior communications with the client have made clear that an offer is unacceptable. But not passing along a settlement offer can be risky. Consider sending a letter or email passing on the offer, acknowledging that it is not in the range your client has said would be acceptable, and confirming that your client wants to reject the offer. If your view of the merits of the case has changed since your last discussion about settlement, make sure your client understands that as well.

Understand What Is and Isn’t Confidential

Many lawyers invoke the “confidentiality” provisions of Texas Rule of Evidence (TRE) 408 to protect settlement communications. But TRE 408 is not a confidentiality rule; it is an evidentiary rule. TRE 408 merely states that certain settlement communications are “not admissible to prove liability for or invalidity of the claim or its amount.” Such communications may, however, be admissible for other purposes. In contrast, Texas Civil Practice

& Remedies Code §154.073 provides that, with some exceptions, communications made by a participant in an alternative dispute resolution procedure, such as mediation, are confidential, not just potentially inadmissible. So it is important to understand the context in which certain statements are made as it can affect the extent to which such statements can be disclosed.

All’s Fair in Love, War, and Settlement Negotiations?

Honesty in settlement negotiations: is that an oxymoron? Texas Rule 4.01 requires lawyers to be truthful in dealing with third parties and to avoid making false statements of fact or law. But does this apply in settlement negotiations? Can you mislead the mediator or the other side as to the strength of your case, the expected testimony of witnesses, the amount of your settlement authority, or your client’s ability to pay? The comments to Texas Rule 4.01 give the lawyer some license in this regard, stating that “under generally accepted conventions in negotiation, a party’s supposed intentions as to an acceptable settlement of a claim may be viewed merely as negotiating positions rather than as accurate representations of material fact.” But otherwise, stick to the truth.

Other Ethical No Nos

In conducting your settlement negotiation, make sure not to run afoul of any ethical prohibitions. For example, Texas Rule 4.04 prohibits threatening to bring criminal charges merely to gain an advantage in settlement negotiations. Texas Rule 5.06. prohibits you from entering into an agreement that restricts a lawyer’s right to represent other individuals in similar cases. Texas Rule 8.03 prevents you from, as part of the settlement, agreeing not to report opposing counsel’s professional misconduct if that conduct raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. And Texas Rule 4.01 prohibits you from agreeing to make false or misleading statements to others, such as by issuing a joint press release regarding the subject of the litigation or amending public disclosures regarding the other party. In short, keeping your client well informed and treating other parties with fairness and honesty will serve you well during mediation and settlement   HN as it does in litigation.

Kelli Hinson is a partner at Carrington Coleman Sloman & Blumenthal, LLP. She can be reached at

Leon & Debra Carter Donate $20,000 to EAJ Campaign continued from page 1

Hamada and Mockler, exemplifies the character of DVAP’s volunteers. Prior to his private practice, Mr. Carter served the Dallas community as an Assistant District Attorney and Assistant Attorney General. He has also served the Dallas legal community as Chair of the DBA’s Judiciary Committee and as a member of the Dallas Bar Association Board of Directors, the Committee for a Qualified Judiciary and the Dallas Unauthorized Practice of Law subcommittee. On a broader level, Mr. Carter has served the citizens of Dallas as a board member for Camp John Marc, Vickery Meadow Learning Center, the Martin Luther King, Jr. Center and the Volunteer Center of Dallas County. Leon Carter has been married for over 30 years to Debra Carter, who is also an active community volunteer. They have two adult children. Their gift helps DVAP with its work to recruit, train and support volunteer attorneys who provide pro bono legal help to the low-income community in Dallas. These are clients who, without legal assistance, have an extremely limited ability to protect their interests and benefit from laws intended to

protect them. The Carters’ contribution also played a significant role in helping the Equal Access to Justice Campaign hit a milestone in January when it surpassed $1 million in donations. The campaign has come a long way since it started in 1994. The campaign raised $60,635 that year, and it has slowly and steadily progressed, increasing its success annually for over 20 years as DVAP volunteers and staff continued their work, volunteer participation increased, and client services expanded for the growing poverty population. Over the years, scores of attorneys have donated time and money to the cause. Peter Vogel, Mike McKool, KoonsFuller and Baron & Budd were among the first donors to the campaign, and they are still donating today. And, just as important as their donations are to DVAP, their continuous commitment to financially supporting access to justice has inspired others and given birth to a new generation of donors. Similarly, unsung heroes like Barkley Miller, Michael Linz, and David Carlock are ardent volunteers who have taken cases, trained and mentored other pro bono lawyers, and have continued to do so for many

years. They have set an example for others to follow and have helped shape the Dallas legal community’s approach to pro bono and respect of access to justice for the poor. A generation of lawyers have now followed in their footsteps, volunteering at clinics, dispensing legal advice, negotiating settlements, and taking cases to trial. And more will follow. The Dallas Bar Association and Legal Aid of NorthWest Texas give thanks for all of those who have contributed to the success of the Dallas Volunteer Attorney Program and the Equal Access to Justice Campaign. We give thanks for the work of our committed volunteers, and the gifts of time and money, both large and small, to our clients

and cause. We have hit a milestone, but our journey has just begun. With more than 600,000 people qualifying for help, there is more work to be done, and we seek to continue to help those in need, expand the services we provide, assist more clients and further support our volunteers. To learn more about the Dallas Volunteer Attorney Program and the Equal Access to Justice Campaign, contact Alicia Hernandez at ahernandez@   HN  Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at

DVAP’s Finest

Tanner Hartnett

Tanner Hartnett is a recent graduate of Texas Tech School of Law who works with six of her family members at the Hartnett Law Firm concentrating on probate litigation. She began working with DVAP alongside her aunt while she was interning with the firm. Tanner loved pro bono work so much and it provided her with such valuable experience that she took on her first case the day after she got licensed. Over the past year and a half, Tanner has volunteered to take on several will, probate, and guardianship cases from DVAP. While some have been challenging, the overall experience has been invaluable to her. As Tanner stated, “DVAP has gotten me into the courtroom, introduced me to some exceptionally skilled lawyers and mentors, and given me an opportunity to give back to my community. I look forward to continuing my work with DVAP for several more years to come!” Thank you for all you do, Tanner!

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.

M arc h 2 0 1 5  


Dal l as Bar A ssoci ati on l Headnotes 17

ADR/Trial Skills

To Arbitrate or Not to Arbitrate by Angela C. Zambrano and Tiffanie N. Limbrick

Most companies have a corporate position on arbitration, either they love it or they despise it. If you are representing a company that likes to arbitrate, you should think broadly about how you could get the case into arbitration. Note, you may be able to compel arbitration even though your client never signed an arbitration agreement, or where the arbitration agreement is not in the core contract in dispute. Before you march into court, stop and think about whether you can—and should—arbitrate a dispute. Why Arbitrate? If the arbitration clause is drafted correctly, there are a number of reasons why arbitration can be ideal for corporate clients: • You have an experienced decision maker who likely has background knowledge about your industry and/or type of dispute; • You may resolve your dispute faster than in traditional litigation, especially since the bases for appeal are limited; • You may avoid some of the cost of discovery (particularly e-discovery); • Appeals are narrow, rare, and usually, finality can be achieved more quickly and at a lower cost and; • It can be confidential. Ok, you convinced me—now how do I decide if I can compel arbitration? In determining whether you can compel arbitration, determine: • is there a valid agreement to arbitrate with the defendant and anyone involved in the dispute; and • if so, could you argue that the dispute

is covered by the agreement to arbitrate? Clear and unmistakable evidence of an agreement to arbitrate is required to compel arbitration because a party can only be forced to arbitrate a dispute to which they agreed to arbitrate. However, clear and unmistakable evidence that the parties agreed to submit to arbitration can be found in unassuming places: • Did the counter-party sign an agreement with arbitration clause with your co-defendants; or • Did the counter-party sign an agreement an agreement with an arbitration clause in a prior or related agreement between any of the parties? In these instances, and others, we have successfully convinced the decision maker that the dispute should be resolved in arbitration. The rationale for finding that a dispute between your client and a counter-party, with whom an arbitration clause has not been signed, but with whom your codefendants have an arbitration agreement, is that the counter-party should be estopped from arguing that they are not bound by the arbitration clause as to all parties in the dispute. Estoppel can arise when an opposing party’s allegations: relate directly to the agreement containing the arbitration clause; consist of coordinated acts between the signatory and non-signatory defendants; are based on the same facts; and are inherently inseparable. With respect to related agreements, courts generally construe agreements to arbitrate “all disputes between the parties” broadly, based on the Federal Arbitration Act. This means that in business relationships, one agreement containing an arbitration clause could support arbi-

tration of a variety of disputes between the parties—including disputes under other contracts. Citing the strong presumption of arbitrability, courts have even enforced arbitration clauses in agreements that are expired or may be superseded. In other words, think broadly about with whom and where the counter-party has agreed to arbitrate. Ok—I will try to arbitrate, but who decides if the dispute will be arbitrated? Assuming that the arbitration clause you found incorporates the rules of an arbitral association, the general answer is that the arbitrator will decide if a dispute will be arbitrated. For example, Rule 7 of the American Arbitration Association Commercial Arbitration Rules provides that the arbitrator “shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” Other

arbitral associations, including Judicial Arbitration and Mediation Services, have similar rules. Thus, if the arbitration agreement incorporates the rules of a particular arbitral association, there may be clear and unmistakable evidence that the parties agreed to submit the question of arbitrability to the arbitrator. However, without the incorporation of such arbitral rules, courts have found that a broad arbitration clause encompassing “all claims” is not clear and unmistakable evidence that the parties agreed to submit the question of arbitrability to the arbitrator. In summary, consider the benefits of arbitration. Even if your client did not sign the arbitration agreement, it may be easier to compel arbitration than it first   HN appears. Angela C. Zambrano, a partner, and Tiffanie N. Limbrick, an associate, are in the Complex Commercial Litigation Group at Sidley Austin, LLP. Ms. Zambrano can be reached at angela., and Ms. Limbrick can be reached at

DBA Entertainment Committee & the Dallas Stars present

“Internal Governance of Legal Matters in Sports” MCLE 1.00 Monday, March 30, 5:30 p.m., American Airlines Center Speakers: Jim Lites, Stars President, CEO and Alternate Governor Alana Newhook, Stars Legal Counsel, Director of Contract Management Visit and enter the code ETHICS to reserve your spot Plaza (lower level) = $70 • Terrace (upper level) = $35

Louise B. Raggio endowed LectuRe seRies A Conversation with


Dallas County’s First Female DISTRICT ATTORNEY

Tuesday, March 31, 2015 6:30 - 7:30 p.m. sMu campus Martha Proctor Mack grand Ballroom (umphrey Lee center)

Reserve FREE tickets – For additional information on this event, e-mail or call 214-768-8999.

18 H e a d n o t e s l D a l l a s B a r A s s o ciation 


March 2015

In The News


Robert Wiegand, of Godwin Lewis PC, has been named the Managing Shareholder. Lon M. Loveless and Israel R. Silvas, of the firm, have been promoted to Shareholder and Elisaveta (Leiza) Dolghih has been promoted to Senior Attorney. Kelley A. Conaty, Sara G. Duran and Paige H. Montgomery, of Sidley Austin LLP, have been promoted to Partner. Jeff Levinger, of Levinger PC, was elected to the Board of Governors of the Bar Association for the Fifth Fed-

eral Circuit, where he will serve as the Governor for the Northern District of Texas. LeAnn Chen, Tom Tippetts and Kenya Woodruff with the Dallas office of Haynes and Boone, LLP have been promoted to Partner. Christina Marshall and Greg Webb with the Richardson office of the firm were promoted to Partner.


Jeff Henderson joined Sidley Austin L.L.P. as Associate. Emily K. Lehmberg joined Hiersche,

Hayward, Drakeley, & Urbach, P.C. as Associate. Cliff A. Wade opened Cliff Wade Law, 3131 McKinney Avenue, Suite 600, Dallas, Texas 75204; phone: (214) 800-2090. Wendy B. Mills joined Kennedy Law, P.C as Shareholder. Johnathan E. Collins, Jennifer K. Parnell, Susan M. Rainey, Amy G. White and Kimberly F. Williams, of Locke Lord, have been promoted to Partner. Leo J. Jordan and Lisa Songy have become Of Counsel to Tollefson Brad-

ley Mitchell & Melendi, LLP. Jessica Straley and Alison Y. Tashima joined Winstead PC as Associates. Joshua Northam joined Shackelford, Melton, McKinley & Norton, LLP as Partner. Holly Friedman Biederman has joined Duffee + Eitzen as Partner. 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


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 2015 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, We will verify your list with our membership records and once approved, your firm will be added to the 2015 DBA 100 Club membership list!

Ballots go to all State Bar members on April 1 and must be returned by April 30. MARK YOUR CALENDAR TO VOTE! Randy Howry of Austin is also a candidate for President-Elect.

What are the perks? Our 2015 DBA 100 Club members will be recognized in Headnotes, the 2016 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.


DBA Member Benefits Professional Development DBA Sections and Committees offer nearly 400 FREE CLE courses each year!

Join the Lawyer Referral Service panel and get connected with citizens who need legal help.

DBA Headnotes monthly publication is full of substantive legal articles and information regarding networking opportunities.

The Peer Assistance Committee offers an assistance program for chemical and alcohol dependencies and depression.

Over 29 substantive law Sections presenting cutting edge CLE programs and seminars. Members meet monthly at Belo, at noon or in the evening.

The DBA offers various Mentoring Programs that pair new lawyers with seasoned attorneys. Weekly DBAonline e-newsletter lists upcoming CLE programs and events.

Office Resources Post job openings and search resumes through our online DBA Career Center. Visit DBA website for details. If you are accepting credit cards, trust your transactions to LawPay. DBA members can save up to 25% off credit card processing fees. For more information, call (866) 376-0950 or visit DBA members receive Discounted Office Supplies through Association Members Only. Call (800) 420-6421, ext. 222.

Contact EZ Messenger for court, messenger, process services & more. Visit

For more information about member benefits, please visit

Social & Community Work Participate in social events and activities hosted by the DBA for great Networking Opportunities with lawyers from all areas of practice. The Dallas Volunteer Attorney Program offers lawyers Pro Bono Opportunities to assist low-income residents through clinics, and provides free CLE training seminars.

You will be included in the DBA Pictorial Directory available in print and online to all DBA members.

DBA Committee Membership is a great way to get involved! With more than 30 committees, there are many rewarding opportunities to perform community service and/or participate in the legal community.

The DBA provides Mailing Labels of member names and addresses. For pricing, call Teddi at (214) 220-7447.

Join us for the Family Holiday Party in December at the Belo and other family activities throughout the year.

Take advantage of ABA Publication Discounts as a DBA member. For a list of titles or to place an order, visit

LAST CHANCE FOR A NEW DIRECTORY PHOTO! If your DBA directory photo is older than the Internet, just a few years dated, or if you have never had a directory photo, now is the time to have a photo taken—at no charge!

Personal Perks Search jobs, create email alerts and post your resume through our online DBA Career Center. Sign up today! Go to Discounts on Texas Rangers and Dallas Mavericks tickets available to all DBA members. Check out the DBA website homepage for links. DBA members receive Clothing Discounts including a 15% discount off merchandise at Brooks Brothers stores nationwide and 20% discount off regularly priced merchandise at JoS. A. Bank. For discount codes, send request email to

Discounted Health Club Memberships are available at TELOS Fitness Center, The Texas Club and The Baylor-Tom Landry Fitness Center. Visit DBA website for contact information. DBA Members receive a 28% discount off a one-year subscription of Trusts & Estates Magazine. Includes hard copies of the monthly periodical; two annual supplements of Texas Year in Review and more. Visit DBA website for details.

Members receive Hotel Discounts at many La Quinta Inns & Suites. Rates range from $85 down to $49 at some hotels in Texas and 15% discount at hotels outside of Texas. Please visit the DBA website for more details. DBA Members are encouraged to make Use of the Belo Mansion by bringing guests for the daily buffet, or renting the Belo Mansion for an event or special occasion. For more information, please call (214) 2200239.

The Golf Club of Dallas offers DBA members one month of club membership dues free, as well as other Questions? Contact Kim Watson, benefits to DBA members who join the Membership Coordinator, (214) 220-7414 or club. Call (214) 331-4336, ext. 224




There are two upcoming directory photo sessions to have your photo updated for the 2015 Membership Directory:  March 11, 9 a.m. - 3 p.m. at Belo  March 13, 11 a.m. - 1:30 p.m., North Dallas Clinic (Two Lincoln Center, 5420 LBJ, #240) The photo session is FREE, it takes 5 minutes and no appointment is required. Photos for personal use may be purchased from the photographer. If you already have a photo that you would like to use for the directory, please contact Judi Smalling at or (214) 220-7452.

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Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 6659458 or Houston (713) 513-7113. troney@ “We Count.”


Share a Texas Rangers Suite at the Ballpark behind home plate: Select 10 (or multiples of 10) games during the upcoming Rangers season in a suite behind home plate. Each game includes 16 tickets, 5 parking passes (three reserved passes in Lot E and two general admission), access to the Capital One Club before and after the game, and ability to purchase 4 additional seats in the suite per game. Also available: 4 front-row seats in the First Base Commissioners Box. Tickets are selected by draft; each partner picks his/her own games (all games except opening day included). Call (214) 5604212 or email for information.


Walnut Glen Tower (Walnut Hill/Central). FREE RENT. Tasteful, bright, spacious offices in Class A building with views of downtown over lake with fountain. 16-story glass atrium with glass elevators and waterfall. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Pearlstone Suites in the West End of downtown Dallas are unique new law offices combined with optional law firm marketing services to help attorneys launch or grow a solo practice or small firm. Suites include these amenities at no additional cost: Direct dial phone with personalized voicemail and call forwarding, high speed internet, IT support, law office reception, on-site building security, conference rooms, kitchen and coffee service, fitness center, building directory listing and all utilities. Marketing services available include websites, branding, brochures, strategy, coaching and more. We offer excellent leasing specials depending on the lease term. Visit or call (214) 446-3943. Park Cities/Central Expressway – Upscale law firm has Class A office space with highend finish-out available. Located at 8150 Central Expressway in Dallas. Up to 3 partner offices, 6 associate offices, and 6 interior offices available. Access provided to 2 conference rooms, large boardroom and kitchen, as well as office amenities/equipment such as phone, Internet, copier, etc. Free surface and garage parking. Please contact Chelsea at (214) 367-6000. Prime Uptown location. Two office spaces, @ 17x12 and 9x12, shared amenities,

Uptown. Lemon and Cole Ave. Call (214) v276-6014. Richardson – Spring Valley & 75. Private office space and suites for lease in Richardson. Excellent Location off Spring Valley two blocks east of I-75. Perfect space for Attorneys/CPA’s/Title Company/Insurance Agent/Architects. Available January 1, 2015. Amenities Include: Receptionist service, Use of standard conference room, Complimentary coffee service, Full kitchen, Copier/scanner available for an added charge. Flexible lease terms. All utilities included. Free parking and 24/7 access. Additional information available please send email to: Downtown Dallas – Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/ facsimile and related amenities. Contact Laura at (214) 922-9265. North Dallas Offices, great work environment. Window ($750) interior ($600) assistant cubicles ($150) for sublease in 5th floor law office directly off elevator. Includes Wi-Fi, two conference rooms, covered parking, front door signage. Contact Aaron at (214) 336-4004 or email Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing. For pictures, floorplan and greater detail, please visit us at or call (214) 368-7880 Ext 4413. Irving 183 and MacArthur. Office space available, shared receptionist/legal assistant with solo attorney, Irving 183 and MacArthur-Wells Fargo Tower, Great location and price. Call (972) 432-9400.


Uptown or Arts area. Corporate, transactional, business, select general practice Attorney seeks private Class A office within law firm in Uptown or Arts area. Internet, telephone, garage, receptionist desired. No long term commitment. Utilities included, 24/7 access. April time frame. (214) 600-5818.


Live and Practice Law Efficiently. If you are tired of paying high overhead, spending hours on the roads fighting traffic, or spending countless hours on administration, read on. We are an AV-Rated litigation firm in Collin County—an easy drive from the northern suburbs—looking for a strong lawyer to share in our goal of maintaining low firm overhead, high quality clients, and spending more time with our families. We handle the firm administration, office and collegial atmosphere; you practice law along with high quality partners and people. Some portable business is necessary. If interested please email us at Emmert & Parvin, LLP is seeking the addition of 2-3 attorneys with established practices in commercial litigation, family law and probate. Our compensation formula has no billable hours requirements and allows you to set your hours. Contact Chris Parvin for more information at Growing Texas law firm seeks motivated and entrepreneurial-minded business transactional attorney with an existing book of business or opportunities to immediately develop local clients. We are looking for resourceful individuals who want to be part of a unique team of lawyers and work on a wide variety

of business, banking, real estate, and international transactions. Tired of working long hours for a salary and discretionary bonus or ignoring new business because there is nothing in it for you? Our compensation package allows ultimate flexibility with regard to income and work load and lets you control your income. Send resume and cover letter/ video correspondence clip outlining practice area experience and why you are ready to take the lead in a different kind of firm, to Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to Holmes Firm PC, an AV rated law firm (, seeks experienced attorneys (litigation, corporate, trust and estates, employment and real estate) who have portable, proven practice bases and seek an incentive based compensation system that aggressively rewards their effort. Interested attorneys should be highly respected within their practice area, capable and willing to build their practice, team players who seek to build a legacy law firm, and generally nice people. We are on the move. Want to join us? Contact ron@ for more information. All inquiries are treated as confidential. Hance|Wickham, P.C. is looking for an associate with a minimum of five years’ experience in family law litigation and case management. Candidates should be well versed in Texas courtroom proceedings, have extensive experience in all facets of litigation and have excellent writing skills. Experience in financial analysis, particularly family law-related, is highly desirable. In addition, direct experience on high net worth divorces, as well as some referral source base, is preferred. Qualified candidates should submit a cover letter, including salary requirements, and resume in pdf form to Paralegal with Real Estate & Corporate Experience. A privately owned, Texas based hotel development firm seeks a paralegal with 3-10 years real estate and corporate experience. Please apply online at or send resume to 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 Downtown Dallas law firm seeks an attorney with at least 5 years’ experience in business/commercial litigation to work in its Collin County office. Candidate must have 1st or 2nd chair experience in trial, Motions for Summary Judgment, and other typical civil litigation motions. Must also have

experience in taking and defending depositions. Compensation negotiable. Please send resume to Well established Dallas litigation law firm in the Uptown area seeks an attorney with at least 5 years’ experience. We are looking for an attorney that is capable of working independently and running cases from start to finish. We want an aggressive attorney who will thrive in a litigation boutique environment. Some existing hourly clientele a plus. Salary will be commensurate with experience. We also offer excellent benefits. Please respond with cover letter and resume to:


Experienced Trial and Probate Attorney for Contract or of Counsel Engagements. AV rated trial lawyer, UT law grad, large firm background, and over 30 years’ first chair trial and deposition experience available for lead counsel or co-counsel engagements in business, real estate, municipal or probate matters. Refer a single case or establish an of counsel arrangement. I maintain my own office in Preston Center with staff and insurance. Reply to Dallas Bar Association, Box 15_02, 2101 Ross Avenue, Dallas, Texas 75201. Real Estate and Finance Attorney. Over fifteen years major firm experience representing lenders, buyers and sellers of commercial real estate, including multi-state portfolios. Full or part time. Willing to maintain own insurance. Dallas area. Prefer real estate section of law firm.


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. Transfer Pricing Expert. William Seeger, PhD, is an economist with 23 years of experience, IRS and Big Four, providing Economic consulting services, Transfer Pricing Documentation, International Tax Planning advice, and Dispute Resolution guidance and strategy. His Dispute Resolution experience includes IRS field audits, Appeals, Competent Authority, and Advanced Pricing Agreements. Former Partner, PwC and KPMG, and Dallas District Industry Economist. Contact Dr. Seeger at Quantecon Consulting, (972) 422-9170 or visit 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 or call Brenda at 1-800-760-9890 or 214-720-9890 for a friendly and quick analysis and response. Helping Trial Lawyers Win Cases. Attorney with outstanding research and writing skills available for hourly projects. (972) 2438444; To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email

Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center.

Do You Want to Refresh Your Spanish? Spanish for Lawyers is the Answer! 10-Week Course Summer 2015 | $180 • March 31-June 2, 2015 All courses are a continuation of spring semester. For more information, contact Teddi Rivas at or (214) 220-7447.

20 H e a d n o t e s l D a l l a s B a r A s s o ciation  KM_HN_team_020315final.pdf



March 2015

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COLLIN COUNTY 972.516.3850

by appointment

Profile for Jessica Smith

March 2015 Headnotes  

March 2015 Headnotes

March 2015 Headnotes  

March 2015 Headnotes

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