September 2009 Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES

Focus Business Litigation

September 2009 Volume 33 Number 9

Bench Bar: Networking, CLE & Fun on Tap

Dallas Bar Ass ociation

Dear Dallas Lawyer

You may be receiv Bar Association. W ing this issue of Headnotes as a none member of the Dal las sider becoming a m hope that you will enjoy reading it, and that you will ember. con-

early 250 Dallas-area lawyers and 50 judges will enjoy recreational activities and earn nearly 6.5 hours of CLE in a relaxing atmosphere – and it’s not too late for you to join them at the 18th Annual Bench Bar Conference. The two-day conference begins Thursday, September 24 and will be held at the Horseshoe Bay Resort Marriott in the Texas Hill Country. This laid-back (yet intense) agenda includes CLE programs such as: n Trends in the Dallas County courts. n A legislative update. n Legal writing. n The economy’s effects on the legal profession, and new marketing angles. n Voir dire. n A view from the federal bench. n A lawyer’s use of social networking sites. n Probation, prison and parole. n The ethics of negotiations. Additionally, attendees enjoy a variety of recreational activities such as golf, a fun run, zip line canopy tour, yoga, a tour of the wine country, sporting clays, tennis, biking and karaoke. During the Bench Bar Conference, the DBA Outstanding Lawyer of the Year Award will be presented to Nina Cortell. “Attending this year’s Bench Bar Conference is a great way to get to know local judges and other lawyers in a relaxed setting,” according to DBA President Christina Melton Crain. “This year’s conference is filled with relevant CLE programs and numerous opportunities to network and have fun.” The deadline for registration is quickly approaching. Due to limited space, only judges and lawyers are able to attend the conference. Registration fee includes hotel accommodations for Thursday and Friday, all meals, cocktail receptions, recreation and CLE credit. Register online at http://www.dallasbar. org/benchbar. For more information, contact Rhonda Thornton at rthornton@dallasbar. HN org.

We have a special membership offer www.dallasbar.org to extend to you. and get 16 month s of membership fo Join now at r the price of 12. You may be asking yo ur se lf, “Why should I Because membersh join the Dalla ip Members tell us wh in the Dallas Bar Association makes s Bar Association?” y they join the Dal YOU a better lawy las Bar Associatio reasons: er. n and here are just a few n So I can save m can obtain all requ y firm money by not having to pay for an ired C n To receive referra LE hours FREE at the DBA (See Pa y of my CLE. I ge 2). ls th rough networking skills. and improve my in terpersonal n To be able to te ll m y cl ie nt s I am a member of with diverse lawyer a professional orga s and nization n To be able to m practice areas. ake CLE presentatio n To meet other la ns wyers in my area of and write articles for Headnotes. thought of as the practice and develo go-to la p my skills so I am n I just want to be wyer at my law firm. a better lawyer! Membership in th hope that you will e Dallas Bar Association WILL mak e you a better lawy join today. To lear nm er. visit www.dallasbar .org, or call Kim W ore about the benefits of joining, pl I ease atson at (214) 2207414. I hope to see you at our headquarters, the Belo Mansion, soon. Christina Melton Cra cmc@att.blackberry in, President .net 2101 Ross Ave. • Da

llas • TX • 75201 •

ww.dallasbar.org

Follow the Money: Increasing the Chances of Recovery By Jacob Marshall

n the midst of the worst economic downturn since the Great Depression, it is more important than ever that attorneys filing suit determine quickly whether an entity defendant is being made “judgment proof.” It is also prudent for attorneys to take extra care in joining all culpable parties. While there is no “one size fits all” approach for addressing these problems, this article provides some theories and strategies for following the money to culpable, solvent recovery sources. First, gathering information and evidence quickly is critical. Lawyers and clients should put on their sleuth hats early and start talking to all available sources about the defendant’s business, corporate structure, assets and asset transfers. Also, take advantage of

Inside 3 DBA Aids Children of Incarcerated Parents 9 Civic Education by ‘Appealing to the Public’ 13 Waive the Jury, Not the Appeal

(214) 220-7414 • w

online resources for locating people, assets and financial relationships through public documents. Further, counsel might consider filing a Tex. R. Civ. P. 202 pre-lawsuit deposition action to investigate potential fraudulent transfer claims. The Uniform Fraudulent Transfer Act, Tex. Bus. & Com. Code §24.001, et seq., provides tools for “following the money” where a company makes transfers with the actual intent to hinder, delay or defraud any creditor or under circumstances that amount to constructive fraud, such as when transfers are made without reasonably equivalent value. Intent to defraud can be shown by establishing one or more “badges of fraud,” including whether the transfer went to an insider, was concealed, followed a money demand See Follow, Page 12

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

Calendar

September Events FRIDAY CLINICS

September 11 — North Dallas** Noon

“Foreclosure for Beginners,” Tommy Bastian. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 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. Thanks to sponsor Griffith Nixon Davison P.C.

September 18 — Belo Noon

Topic Not Yet Available.

October 2 — Belo Noon

“Taking Dangerous Dog Hearings Seriously,” Don Feare. (MCLE 1.00)*

TUESDAY, SEPTEMBER 1 Noon

Tort and Insurance Practice Section “2009 Legislative Update,” Brent Cooper. (MCLE 1.00)*

Morris Harrell Professionalism Committee

5 p.m.

Bankruptcy & Commercial Law Section “From Hereford to the Hamptons: Do PostConfirmation Changes in Lifestyle Require Modifications to Chapter 13 and Individual Chapter 11 Plans?” Hon. Alan Trust, Tom Powers, Areya Holder, Behrooz Vida and Mike McBride. (MCLE 1.00)*

6 p.m.

DAYL Board of Directors

WEDNESDAY, SEPTEMBER 2

Employee Benefits/Executive Compensation Section “Ethical Practice Issues,” Patti Hedgpeth. (MCLE 1.00)*

Noon

Community Service Fund Board Public Forum Committee DAYL Environmental Awareness Committee

THURSDAY, SEPTEMBER 3 Noon

Construction Law Section “Construction Legislative Update,” Cynthia Tari. (MCLE 0.75)*

Family Law Section Board St. Thomas More Society DAYL Freedom Run Committee

5:30 p.m.

Government Law Study Group

Mergers and Acquisitions Section “Mergers & Acquisitions: The Market Today,” Greg Spier, Orman Anderson and Kalvin Dickson. (MCLE 1.00)*

4 p.m. 6 p.m.

Tax Section “Practice Before the U.S. Tax Court,” Hon. Juan Vasquez. (MCLE 1.00)*

3 p.m.

High School Mock Trial Case-Writing Committee

FRIDAY, SEPTEMBER 11 Noon

Appealing to the Public Program: Texas Court of Criminal Appeals hearings oral arguments at Belo Mansion. For more information, visit http://www.dallasbar. org/appealing. RSVP to asmith@ dallasbar.org. (MCLE 1.5)*

Friday Clinic — North Dallas** “Foreclosure for Beginners,” Tommy Bastian. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Suite 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. (MCLE 1.00)*

Trial Skills Section Topic Not Yet Available.

MONDAY, SEPTEMBER 14

Antitrust & Trade Regulation Section “Patent Ambushes and Antitrust Laws,” Rufus Oliver. (Ethics 1.00)*.

DAYL Equal Access to Justice Committee Senior Lawyers Committee Home Project Committee

WEDNESDAY, SEPTEMBER 16

Noon

Family Law Section “Media Savvy Litigation in the Internet Age,” David Margulies. (MCLE 1.00)*

CLE Committee Christian Lawyers Fellowship DAYL Judiciary Committee J. Reuben Clark Law Society Texas General Counsel Forum

5:15 p.m.

LegalLine

THURSDAY, SEPTEMBER 10 11 a.m.

TUESDAY, SEPTEMBER 15

Noon

House Committee Walk-Through

Dallas Women Lawyers Association Board

Dallas Bar Foundation Board

Dallas Women Lawyers Association General Membership Meeting: “Ethical Issues Involving Attorney-Client Contracts,” Jim Pennington.

Consumer-Creditor Law Seminar. Moderator: Hon. Sally Montgomery. Sponsored by DBA CLE Committee and DWLA. Must RSVP to ktarangioli@dallasbar. org. (MCLE 7.00, including Ethics 1.00)

11:30 a.m.

8:30 a.m.

WEDNESDAY, SEPTEMBER 9

FRIDAY, SEPTEMBER 18

Probate Symposium, sponsored by DVAP, DBA Probate Section, DBA Pro Bono Activities Committee and DAYL Elder Law Committee. Contact Jigna at gosalj@lanwt. org. (MCLE 4.00, including 1.00 Ethics)*

TUESDAY, SEPTEMBER 8

Corporate Counsel Section “Accountants With an Attitude: How to Know When You Need a Forensic Accountant,” Margie Reinhart. (MCLE 1.00)*

DBA Board of Directors Bench Bar Conference Committee

Peer Assistance Committee

Business Litigation Section “Ten Documents Which Must Be Filed in the Trial Court to Preserve Error for Appeal,” Chad Ruback. (MCLE 1.00)*

3:30 p.m. 6 p.m.

Admissions and Membership Committee Judiciary Committee Publications Committee Speakers Committee Dallas Asian American Bar Association Federal Bar Association

Noon

Minority Participation Committee Christian Legal Society Dallas Criminal Defense Lawyers Association Dallas Gay & Lesbian Bar Association UPL Subcommittee What Every Young Lawyer Should Know About ADR, sponsored by DAYL

Noon

Real Property Law Section Topic Not Yet Available.

DBA offices closed for Labor Day.

Friday Clinic — Belo Topic Not Yet Available.

Dale Wainwright. (MCLE 1.00)*

Noon

MONDAY, SEPTEMBER 7

No DBA meetings scheduled.

DAYL Barristers for Babies

Alternative Dispute Resolution Section “Mediating the Workers’ Compensation Case,” Kay Goggin and Kenneth Spear. (MCLE 1.00, including .5 Ethics)*

FRIDAY, SEPTEMBER 4

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

11:30 a.m.

Noon

Septem ber 2009

International Law Section Topic Not Yet Available. Community Involvement Committee Entertainment Committee Law in the Schools and Community Committee DAYL Elder Law Committee

Noon

Energy Law Section “Margin Tax, Energy Deals and the Energy Sector,” Steve Moore. (MCLE 1.00)*

Health Law Section “The New CMS Policy for Never Events,” Joseph Coniglio. (MCLE 1.00)*

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

4:30 p.m. 5:15 p.m.

Texas General Counsel Forum LegalLine

THURSDAY, SEPTEMBER 17 Noon

Appellate Law Section “Texas Supreme Court Update,” Justice

MONDAY, SEPTEMBER 21

Noon

Labor & Employment Law Section “Four Underpublicized and Underutilized Exceptions to Texas Employment At-Will,” Durwood Crawford. (MCLE 1.00)*

Computer Law Section Topic Not Yet Available.

TUESDAY, SEPTEMBER 22

Noon

Probate Trusts and Estates Section “Texas Legislative Update 2009,” Glenn Korisch. (MCLE 1.00)*

Courthouse Committee American Immigration Lawyers Association DAYL Aid to the Homeless Committee

4:30 p.m.

Nuts & Bolts of Family Law Training, Part I Learn about recent legislative changes in family law, hone your practice skills, and hear from judges and legal specialists. Training is free for attorneys who agree to accept one complex DVAP case or two simple DVAP cases. Otherwise, cost is $200. Co-sponsored by the DVAP and the DBA Family Law Section. Advance registration required; visit www.dallasbar. org. (MCLE 3.00, including 1.00 Ethics)*

WEDNESDAY, SEPTEMBER 23 8:15 a.m.

Civil Collaborative Law Training. Visit www.collaborativelaw.us/events.php.

Noon

Sports & Entertainment Law Section “Legal Issues in Facebook, Twitter and Other Social Networking,” Evan M. Fogelman. (MCLE 1.00)*

Juvenile Justice Committee Legal Ethics Committee DAYL Client Development Program: Making Rain & Keeping Rain

4:30 p.m.

Nuts & Bolts of Family Law Training, Part II Learn about recent legislative changes in family law, hone your practice skills, and hear from judges and legal specialists. Training is free for attorneys who agree to accept one complex DVAP case or two simple DVAP cases. Otherwise, cost is $200. Co-sponsored by the DVAP and the

DBA Family Law Section. Advance registration required; visit www.dallasbar. org. (MCLE 3.00, including 1.00 Ethics)*

5:30 p.m.

Labor & Employment Law Section Topic Not Yet Available.

THURSDAY, SEPTEMBER 24 8:15 a.m.

Civil Collaborative Law Training. Visit www.collaborativelaw.us/events.php.

Noon

Criminal Law Section Topic Not Yet Available.

Environmental Law Section “Recent Developments in Texas Wind Power Law,” Ernest E. Smith. (MCLE 1.00)*

FRIDAY, SEPTEMBER 25 8:15 a.m.

Civil Collaborative Law Symposium. Visit www.collaborativelaw.us/events.php.

Noon

Intellectual Property Law Section “Issues in Trolling Licensing,” Everett Upshaw. (MCLE 1.00)*

Media Relations Committee

MONDAY, SEPTEMBER 28 Noon

Criminal Justice Committee

TUESDAY, SEPTEMBER 29

No DBA meetings scheduled.

WEDNESDAY, SEPTEMBER 30 Noon

DVAP New Lawyer Luncheon. RSVP to Chris Reed-Brown at reed-brownc@lanwt.org.

THURSDAY, OCTOBER 1 Noon

Construction Law Section Topic Not Yet Available.

Family Law Section Board Lawyer Referral Service Committee St. Thomas More Society DAYL CLE Committee

5:30 p.m.

Pro Bono Awards Reception, celebrating 27 years. Hosted by the Dallas Volunteer Attorney Program.

FRIDAY, OCTOBER 2 Noon

Friday Clinic — Belo* “Taking Dangerous Dog Hearings Seriously,” Don Feare. (MCLE 1.00)*

Transition to Law Practice

Monday, October 5 Noon

Tax Section “Media Savvy Litigation in the Internet Age,” David Margulies. (MCLE 1.00)*

Peer Assistance Committee

Tuesday, October 6 Noon

Corporate Counsel Section Topic Not Yet Available

Tort and Insurance Practice Section “New Voir Dire Techniques to Win Your Case,” Lisa Blue. (MCLE 1.00)*

Morris Harrell Professionalism Committee

6 p.m.

DAYL Board of Directors

Texas Rule of Law Conference

Tuesday, October 20 ~ Noon to 5 p.m. (4.5 MCLE, including 1.5 Ethics) At the Belo Mansion. Reception to follow.

KEYNOTE SPEAKER: CHIP PITTS Lecturer in Law, Stanford Law School, and board president of the Bill of Rights Defense Committee, and former chair of Amnesty International USA Audience to include a broad range of professions, including architecture, business, education, engineering, environment, human rights, labor, media, the military, health care, public safety, and religion. Organized by the DBA in cooperation with the ABA World Justice Project. No cost. RSVP to Kathryn Tarangioli at ktarangioli@dallasbar.org.

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

Sep t e mb e r 2 0 0 9

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

Special Mentoring Highlight

Amachi: Allowing Children to Be ‘Truly Remarkable’

“I

believe that every child has the ability to make something truly remarkable with their lives if given the opportunity.” With those words, DBA President Christina Melton Crain introduced the Amachi Texas initiative to DBA members during her inaugural address in January, as she emphasizes “mentoring the next generation” in 2009. Amachi Texas matches children of offenders with adult role models. “Amachi” is a word of Nigerian dialect that means, “Who knows but what God has brought us through this child.” The Amachi effort began seven years ago in Philadelphia, and began in Texas when Gov. Rick Perry announced a partnership with the Texas Department of Criminal Justice, Big Brothers Big Sisters of North Texas, and the One Star Foundation, a nonprofit organization created by the governor to coordinate faith-based initiatives and promote volunteerism. BBBS enrolls, screens and trains mentors in the Amachi program, and provides on-going support. To date, more than 4,000 children of offenders in Texas have been paired with a mentor. Of that number, only 8 have been referred to the juvenile justice system – just one-fifth of one percent. And, so far this year, scores of DBA members have volunteered to make a difference in the lives of children who face daunting odds. The U.S. Bureau of Justice Statistics found that children of offenders have a 70 percent greater likelihood of becoming involved in the criminal justice system than their counterparts. In the Metroplex alone, nearly 70,000 children have an incarcerated parent. “By serving one of the most at-risk populations in our society, programs such as Amachi Texas will make great strides toward breaking the cycle of intergenerational incarceration,” Ms. Crain said. Ms. Crain served on the Texas Department of Criminal Justice board when Amachi was established in Texas. “If we don’t give a child the chance to experience a different world, to walk a different path than their parent, we will never know what they could have ultimately become and subsequently contributed to society.” DBA Past President Harriet Miers has teamed up with another past president, Hon. Liz Lang-Miers, a justice on the Fifth Court of Appeals, to mentor a child through Amachi. Ms. Miers says she believes this young lady “has a lot of potential, but we are really early in the process. I am looking forward to seeing how Liz and I can help her see more clearly the importance of applying herself and doing the best she can to achieve good grades and open doors for herself.” Not only has Ms. Miers “adopted” a “little” through the Amachi program, she is also co-chairing the DBA’s recruitment effort with Rob Roby, who has a long involvement with Big Brothers Big Sisters. In addition to serving as past president of BBBS in the Dallas area, Mr. Roby has also been a mentor to a “little” for six years, even before the Amachi initiative began in Texas. Lawyers are undoubtedly among the busiest professionals, but carving a few hours out of a hectic schedule each month to spend quality time with an atrisk child can be so rewarding. DBA’s Second Vice President Paul K. Stafford has been matched this year with a child through Amachi. “There are unique challenges in the

commitment to being a mentor to a young African-American male who is the son of an incarcerated parent,” Mr. Stafford says. “However, those challenges also present unique opportunities to serve as a positive role model and to make a meaningful and lasting impact on this young man and others. My ‘little’ and I have spent quality time together in a variety of activities and have developed a mentoring relationship. Regardless of the activity, the most critical aspect of the relationship is the willingness to spend the time to change a life.” Students enrolled in the Amachi program recently toured the Dallas FBI headquarters with their mentors and they will also be invited to the “Appealing to the Public” program on September 11, when the Texas Court of Criminal Appeals will

hear actual oral arguments in a death penalty case at the Belo Mansion. A DBA committee has visited approximately 20 law firms in recent months to familiarize lawyers with the Amachi process and the rewards. To schedule a presentation, contact Amy Smith at asmith@dallasbar.org. Or to volunteer as a mentor, contact Lauren Hoofnagle at HN lhoofnagle@bbbstx.org.

Children who are enrolled in the Amachi Texas program recently visited the FBI field office in Dallas to get a different perspective of the criminal justice system. The students, who each have an incarcerated parent, have been assigned to a caring adult who mentors them and encourages them to excel in life. While touring the FBI facility, the kids learned about crisis negotiations, fingerprinting, polygraphs and evidence-collection.

DBA Member Benefits Professional Development Free MCLE – The DBA’s 28 sections and 30 committees offer nearly 400 MCLE courses each year — most at no charge!

Lawyer Referral Service – Participate on the DBA LRS Panel, and get connected to citizens who have legal needs.

Headnotes and DBA Online – Each month, members receive Headnotes which includes a calendar of CLE programs and substantive legal articles. Members also receive our weekly enewsletter DBA Online with upcoming events

Peer Assistance – An assistance program for chemical and alcohol dependencies and depression is offered through the Peer Assistance Committee. Mentoring Programs – The DBA offers various programs that pair new lawyers with seasoned attorneys.

Office Resources Navigant Consulting – The DBA has established a “member benefit” with Navigant Consulting Inc., a specialized international consulting firm that assists with accounting, financial and economic aspects of disputes and investigations. For more information, visit www.navigantconsulting.com, or call Pam Crowley at 214-712-1574.

ABA Publication Discounts – Purchase ABA books at a discounted rate. For a list of titles or to place an order, visit www.ababooks.org and enter code PAB7EDBA upon checkout.

Discounted Office Supplies – DBA members receive a discount on office supplies through Association Members Only. Call 1-800-420-6421, ext. 222.

Mailing Labels – The DBA provides mailing labels of member names and addresses. Call Teddi at 214-220-7447.

Members Directory – Members have access to contact info and photos of nearly 10,000 peers.

For more information about member benefits, visit www.dallasbar.org.

The Belo Mansion Use of Belo Mansion – Members are encouraged to bring guests for the daily buffet, or rent the Belo Mansion for special occasions. Visit www.belomansion. com, or call 214-220-0239.

Social & Community Work Networking Opportunities – Participate in the DBA’s many activities for great opportunities for networking with lawyers from all practice areas. Pro Bono Opportunities – The Dallas Volunteer Attorney Program offers lawyers opportunities to assist lowincome residents through clinics, and provides free CLE training seminars. Committee Membership – With more than 30 committees, the DBA has many rewarding opportunities to perform community service and/or participate in the legal community.

Personal Perks Rangers Baseball – DBA members receive discounted rates on tickets to Rangers games.

NEW

Bank of America – Low-interest rate credit cards are designed specifically for DBA members! For more information, call 1-800-847-7378, ext. 2500.

services, offers members one month dues free, as well as other benefits to DBA members who join the club. For more information, contact Tom Easterling at 214-331-4336, ext. 224.

Fitness Centers – Discounts are available at The Baylor-Tom Landry Fitness Center, the Texas Club, and the Dallas Athletic Club.

Clothing Discounts (Brooks Brothers) – DBA members receive a 15% discount off regular and everyday valued merchandise at Brooks Brothers, Brooks Brothers Factory Outlets, and Carolee and Adrienne Vittadini stores nationwide. Enroll online at www.Membership.BrooksBrothers.com.

Country Club Membership – The Golf Club of Dallas, a 52-year-old club that offers dining, golf, tennis and other

Clothing Discounts (JoS. A. Bank) – Members receive a 20% discount off regularly priced merchandise

at JoS. A. Bank. To receive a 20% discount, members must request a free personal corporate discount card by emailing the corporate membership number (#221841) to corporatecard@josa-bank.com or by calling 1-800-285-2265. Hotel Discounts – Members receive discounted rates at many La Quinta Inns & Suites. Call 1-866-468-3946 and request the Texas State Rate or make your reservations at www.lq.com/txstat. Rates range from $85 to $49 at some hotels. Members will receive a 15% discount at hotels outside of Texas. Contact Sandy Clinton at 281-242-6853 for more information.

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

Septem ber 2009

Headnotes

President's Column

The Rebirth of Civic Education by Christina Melton Crain

The foundation of every state is the education of its youth. — Diogenes Laertius, the biographer of the Greek philosophers

avid was a little boy growing up in the 1940s in Massachusetts. An only child, his family moved to New Hampshire when he was 11 years old. Many years later, he would reflect on those early years and the lessons of democracy that he learned while attending town meetings in New England. Young David, who developed a love for mountain-climbing and doing his own home repairs, would later be appointed as an associate justice to the United States Supreme Court by President George H.W. Bush. In a keynote address to members of the American Bar Association this past summer, retired Justice David Souter recalled those town hall meetings as “the most radical exercise of American democracy that you can find.... It didn’t matter if someone were rich or poor, young or old, sensible or foolish,” he said, meetings were governed by “fundamental fairness.” At these town meetings he learned about our system of government – long before he attended Harvard. In addressing ABA members, he voiced his concern that many of today’s youth are not learning these very important lessons, and he challenged lawyers nationwide to change this trend. “There is a danger to judicial independence when people have no understanding of how the judiciary fits into the constitutional scheme,” Justice Souter stated. Souter went on to cite a poll showing that two-thirds of Americans cannot name the three branches of government – executive, legislative and judicial. “We cannot stand up for the judiciary by leaving twothirds of the American people ignorant that there are three branches,” he said, adding that a “rebirth of civic education” that teaches the lessons he learned at those New England town meetings is needed to ensure that the nation has “judges who stand up for individual rights against the popular will.” So, it fills me with great pride to know that the Dallas Bar Association, having also shared this concern for many years, is a part of the solution to this issue through a multitude of fabulous programs. These include: E-Mentoring, Esq. Program – Dallas ISD high school students are matched with lawyers and other legal professionals to participate in an ongoing mentor program via e-mail; the Dallas Association of Young Lawyers also assists with this program. Law in the Schools – DBA members commit to up to three hours to visit Dallas ISD middle or high school classrooms and give students insight into the legal profession. Essay, Art & Photography Contests During Law Week – DBA members coordinate with Dallas ISD giving students a Law Day theme, such as Rule of Law, and ask them to write essays, create drawings, or take photos depicting the theme. Law Week Presentations – Lawyers are assigned to middle and high school classes to teach them about an annual Law Day theme, such as the Rule of Law. Lawyers in the Classrooms – DBA members speak to middle school DISD students about various aspects of the law throughout the year. Mock Trial Program – DBA members serve as coaches and judges of the Texas High School Mock Trial Program, the first high school mock trial program in the country. Mock Voir Dire – DBA members coordinate with high school students to visit a Dallas courtroom and participate in a mock voir dire. Summer Law Intern Program – DBA members interview junior-year high school students and select interns who will

work at area law firms and legal departments for eight weeks during the summer. And, two additional programs will take place in the next few months: Appealing to the Public – On Friday, September 11, the Dallas Bar Association will host its Appealing to the Public oral argument program at the Belo Mansion. This program was established by DBA Past President Mark Sales in 2006. Students from the Dallas Independent School District, high school mock trial teams and mentees with the DBA Amachi Texas program have been invited to attend this event where they will witness a live oral argument of a local criminal case before the Texas Court of Criminal Appeals. Prior to the oral argument, the students will participate in a “pre-game” presentation by judges and appellate attorneys, where they will be introduced to the judicial branch, how a litigant works his or her way through the judicial process and an overview of what they will be witnessing during the oral argument. After witnessing the actual oral argument, the court will recess and the students will participate in a “post-game” review to understand what they have witnessed, ask questions, and vote in a straw poll to determine who they deem should be the winner of the oral argument. This year’s event is co-chaired by David Anderson and Cheryl Camin. All are welcome and 1.5 hours of MCLE have also been secured. Space is limited, so please make your reservation with Amy Smith at asmith@dallasbar.org. Annual Community Symposium for Justice in Education – On Wednesday, October 14, the DBA will host its 7th Annual Community Symposium for Justice in Education. Established in 2003 by then-DBA President Brian Melton, this half-day symposium brings together community leaders, lawyers, school administrators and teachers to improve public education in Dallas. This year’s symposium, chaired by Hon. Marilea Lewis, will include a “State of the DISD” address by Dr. Michael Hinojosa and several panels of experts discussing the pertinent issues of reading, mentoring, performance and testing in our current education system. The symposium will conclude with a lunch and the prestigious Jack B. Lowe Sr. Award for community leadership in education will be presented to Linus Wright, a veteran of the education arena who, amongst his many noted roles, served as general superintendent of the Dallas ISD for 10 years. The award is named for the founder of TD Industries, who served as the first chairman of the Dallas Alliance Education Task Force, a multi-racial group dedicated to a broad-based desegregation in DISD. The success of school children in Dallas obviously translates into the success of our community for many future generations. As lawyers and business professionals, we all have a stake in their success, and we need to collectively develop proactive programs to take public education to new levels. This forum allows the Dallas legal community the opportunity to become directly engaged in the improvement of our local education system. For more information or to make a reservation to attend this great event, please contact Alicia Hernandez at ahernandez@dallasbar.org. As was said by Epictetus (55 AD-135 AD) in his work Discourses, “Only the educated are free.” We, as members of the legal profession and the Dallas Bar Association, with our unique backgrounds and levels of education, have the ability to assure that Justice Souter’s concerns do not go unaddressed. The vast menu of fabulous programs and initiatives already being administered by the DBA show that the Dallas legal community is truly committed to this issue. Thank you to all that have created and assured that we are and continue to be part of the solution. I believe that Justice Souter would HN approve!

2009 Stephen Philbin Awards Luncheon Recognizing Excellence in Legal Reporting

Ŷ Tuesday, October 13 Ŷ The Pavilion at The Belo Mansion Ŷ KEYNOTE SPEAKER SUSAN DESANTI DIRECTOR OF POLICY PLANNING, FEDERAL TRADE COMMISSION “From Town Criers to Bloggers: How Will Journalism Survive the Internet Age?" Sponsored by the DBA Media Relations Committee. For tickets, contact Judi at JSmalling@dallasbar.org.

Published by: DALLAS BAR ASSOCIATION

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Christina Melton Crain President-Elect: Ike Vanden Eykel First Vice President: Barry Sorrels Second Vice President: Paul K. Stafford Secretary-Treasurer: Bill Mateja Immediate Past President: Frank E. Stevenson II Directors: Jerry C. Alexander, Arthur Anthony (President, J.L. Turner Legal Association), Kim Askew (at-large), Hon. Tena Callahan, Wm. Frank Carroll, Leon Carter, Rob Crain, Sally L. Crawford, Hon. Elizabeth H. Crowder, Laura Benitez Geisler, Hon. Marty Lowy, Scott McElhaney, Patsy Yung Micale (President, Dallas Asian-American Bar Association), Mary Scott, Paul K. Stafford, Dena DeNooyer Stroh (President, Dallas Association of Young Lawyers), Diane Sumoski, Debra K. Thomas, Christie Villarreal (President, Dallas Hispanic Bar Association) and Brad C. Weber. Advisory Directors: Jennifer Duncan Edgeworth (PresidentElect, Dallas Association of Young Lawyers), Karen McCloud (President-Elect, J.L. Turner Legal Association), Jose Angel Ortiz (President-Elect, Dallas Hispanic Bar Association) and Hope Shimabuku (President-Elect, Dallas Asian-American Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly Bell Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales, Travis Vanderpool (Past Chair) HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Darlene Hutchinson Biehl Calendar: Kathryn Tarangioli In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Anne Pohli, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Vincent J. Allen and Lea N. Clinton Members: H. Joseph Acosta, Natalie Arbaugh, Sorana Ban, Heather Barbieri, Barbara Boudreaux, Scott Beckman, Lance Caughfield, Paul R. Clevenger, Christina Melton Crain, Linda Dedman, Tobey S. Elliott, Jennifer A. Green, Floyd R. Hartley Jr., Thomas M. Hoffman, Mary Louise Hopson, Young Jenkins, David F. Johnson, Victor Johnson, Lisa Kivett, Susan P. Kravik, Thomas L. Mighell, Clay Miller, Hon. Jim Moseley, Susan D. Nassar, Heather Bailey New, Kirk L. Pittard, Irina B. Plumlee, Christopher A. Robison, Bryon L. Romine, Andrew Ryan, Gregory W. Sampson, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, J. Allen Sullivan, Claire Swann, Sherry L. Talton, Debra K. Thomas, Edith Miller Thomas, Mark Toronjo, Ike Vanden Eykel, Paul Watler, Jenna P. Wright and Paul F. Wright. DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Darlene Hutchinson Biehl Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Assistant to the Executive Director: Terri Hawkins Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kim Watson Projects & Communications Assistant: Kathryn Tarangioli Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas LAWYER REFERRAL SERVICE: LRS Program Assistant: Biridiana Avina Interviewer: Marcela Mejia VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas. Data Entry/Office Support: Patsy Quinn Dallas Bar Foundation Executive Director: Elizabeth Philipp Copyright Dallas Bar Association. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to dhutchinson@dallasbar. org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

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

The Dallas Bar Association From 1971-1980 Editor’s Note: As the Dallas Bar Association celebrates the inauguration of its 100th president, Christina Melton Crain, we will reflect each month on the bygone eras the organization has experienced. Darwin Payne’s book, As Old As Dallas Itself: A History of the Lawyers of Dallas, the Dallas Bar Associations, and the City They Helped Build, has been used as a source in these articles. It is available from the Dallas Bar Foundation for $25. Contact Elizabeth at ephilipp@dallasbar. org.

he city of Dallas grew significantly during the 1970s, as did the legal profession. Among other notable trends, the decade will be remembered for the new facilities established to serve the legal profession and criminal justice needs. A Michigan native who had a long career with Thompson & Knight, Timothy Edward Kelley served as DBA president in 1971. During his presidency, the Dallas public schools faced a federal court mandate for widespread desegregation, and community tensions were high. He urged citizens to be calm: “Hysteria or cynicism will not contribute to our stature as a city…. Only sensitive and careful enforcement of the law can assure the best education for all our children and survival of our system of government.” Henry D. Schlinger was inaugurated as president of the DBA in 1972. His goals during his term were to increase public education in the basics of law and expand the pre-trial release program instituted in 1970 by the DBA. Additionally, he successfully advocated that the controversial Dallas Legal Services Project board be reconstituted so that Commercial Properties Ad_finalHR.pdf 5/22/09 9:02:52 AM two-thirds of the directors were lawyers.

A Waxahachie native, John Lawrence Estes wanted to be an attorney from a young age, and in 1973, he served as president of the DBA during its centennial year. For 40 years, he has practiced at the firm that today is Locke, Lord, Bissell & Liddell, and in 1991 he started a mediation practice. Mr. Estes contributed greatly to the establishment of the Judicial Evaluation Poll in the 1970s. Always well-respected by his peers, Mr. Estes was the recipient of the DBA Trial Lawyer of the Year award in 1998, and was honored by the Dallas Bar Foundation with its prestigious Fellows Award in 2009. Louis J. Weber Jr. served as president of the DBA in 1974, the year the association received the ABA Award of Merit for overall performance in 1973-74. That year, the DBA boasted of 2,621 members. In 1981 Mr. Weber received a President’s Award for Outstanding Service from the State Bar, honoring his work as chairman of the Long-Range Planning and Goals Conference. He also served as president of the Dallas Association of Defense Counsel. Charles P. Storey, DBA’s 1975 president, followed in his father’s footsteps, who had been DBA president in 1934. He was a senior partner with Storey, Armstrong, Steger & Martin, and later senior counsel at Carrington, Coleman, Sloman & Blumenthal. For 10 years he was chairman of the board of the Southwestern Legal Foundation. In 1975, Mr. Storey launched a fundraising campaign to relocate the association. A committee determined that space on the third floor of a new skyscraper would be suitable, and nearly $550,000 was pledged, but complications arose and that plan was terminated. But bar

leaders kept looking. Soon the Belo Mansion became a viable option and 1976 President Waller M. Collie Jr. traveled to North Carolina with 1978 President Robert H. Thomas, where they successfully negotiated the purchase with Col. Belo’s granddaughter. During Mr. Collie’s presidency, the DBA asked the state legislature to create 14 new courts in the county. Having gained notoriety as an attorney for Jack Ruby, Phil Burleson served as president of the DBA in 1977. He was a partner in the firm, Burleson, Pate & Gibson, and he is also remembered as the president who launched the monthly publication Headnotes, by presenting the first edition to members at his inaugural. In 1977, after years of controversial jail conditions, U.S. District Judge Sarah Hughes ordered the county to begin purchasing land for a new facility. Eventually, the Lew Sterrett Justice Center would house criminal courts, the sheriff’s department and county jail. Serving as president in 1978, Robert H. Thomas continued to play a critical role in the renovation of the Belo Mansion. The Belo acquisition couldn’t have come at a better time, as the legal field became increasingly specialized and the DBA now included eight substantive law sections and nearly 3,500 members. Mr. Thomas’s father had been DBA president 32 years earlier and his maternal grandfather was the first president of SMU. A 50-year lawyer with Strasburger & Price, he represented the Dallas ISD for 31 years

as lead counsel in the desegregation case Tasby v. Estes, and in 2007 he received the Trial Lawyer of the Year Award from the DBA. Hon. Jerry L. Buchmeyer served as president of the DBA in 1979 when the remodeled Belo Mansion opened as the association’s headquarters. During its first month of operation, the facility attracted 1,636 persons, compared with 470 visiting the Adolphus headquarters a year earlier. After working with Thompson & Knight for 21 years, President Jimmy Carter appointed him to the federal bench in 1979. Judge Buchmeyer is especially known for his humorous column “et cetera,” which initially appeared in Headnotes. He has participated for many years with the annual Stephen Philbin Awards and the Texas High School Mock Trial Competition. Robert Edwin Davis, DBA’s 1980 president, represented the world’s largest telephone company for 17 years. Now a partner with K&L Gates, he represents corporate clients in the areas of taxation and white-collar crime. In 2006, Mr. Davis was honored by a committee of the ABA’s Taxation Section for “outstanding dedication, achievements, and integrity in the field of civil and criminal tax controversies.” During his presidency, the DBA brought one of the four surviving copies of the Magna Carta for display at the Belo Mansion. Next month, we’ll look at the DBA and its presidents during the 1980s. HN

The Dallas Bar Headquarters by Robert H. Thomas

recent article in Headnotes discussed the Dallas Bar events between 1950 and 1960. Right in the middle of that decade, 1955 President Henry Strasburger led the bar in opening the very first Dallas Bar headquarters in the Hotel Adolphus, thus starting a chain of events which led to the Belo Mansion, the Belo Pavilion and the present strong financial condition of the Dallas Bar Association. That 1955 event in the DBA history is important to the association. I want to tell that story. In its early years, the DBA offices were in the law office of whoever was the current president. In 1937, the bar was granted a 15-foot cubicle under the grand staircase of the Old Red Courthouse to use as an office. By 1950, the Saturday central docket call at the courthouse was followed by a “clinic” discussing various new laws and legal theories. This was the ancestor of “continuing legal education.” A few years later, the dockets were called separately in each court, and the Saturday meetings were abandoned. In 1954, the City Club adjacent to the lobby of the Adolphus Hotel relocated to the top of the Adolphus Tower Building. That space adjacent to the Adolphus Hotel lobby became empty. A group of Dallas lawyers decided it was time to move the Dallas Bar “uptown” and have a “club.” Many conservative lawyers objected to the cost, but President Henry Strasburger pushed the idea and personally contributed the largest amount of money necessary to remodel the old City Club

location for the DBA headquarters. In 1955, Mr. Strasburger led the DBA to the opening of a dining room and meeting room adjacent to the lobby of the Adolphus Hotel. It became a nice venue for Dallas lawyers to hold events. As a matter of fact, my parents hosted my rehearsal dinner in the Dallas Bar headquarters in December 1957, the night before my marriage to Gail Griffin. The new DBA headquarters was remodeled and expanded several times between 1956 and 1975. The DBA business offices were enlarged and established in the Adolphus Tower Building, but the luncheon and evening programs at the Adolphus Hotel continued. Finally we outgrew the hotel space. By 1975, President Chuck Storey began the campaign to move the Dallas Bar Association headquarters to a larger space in a new office building. He started raising funds for such a move, and in 1976 the old Belo home on Ross Avenue became available for purchase. The funds were used in 1976 to start the campaign to buy and renovate Belo. But that is another story for another time. “Do as adversaries do in law. Strive mightily, but eat and drink as friends.” – William Shakespeare, Taming of the Shrew (1538) “Shakespeare was right. The Dallas Bar needs a headquarters where we can eat and drink as friends.” – Henry Strasburger, DBA President (1955) HN Robert H. Thomas served as president of the Dallas Bar Association in 1978.

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

Septem ber 2009

DBA State Bar President’s Update By Roland Johnson

he State Bar of Texas Annual Meeting was in your backyard this year, and I want to thank the Dallas legal community for supporting and participating in this great event that brings lawyers together from all across the state. Talmage Boston of Winstead P.C. did an outstanding job overseeing the Annual Meeting, which featured an all-star lineup of speakers, including Doris Kearns Goodwin, David Brooks and Morris Dees. The Dallas Bar Association received numerous local bar awards at the Annual Meeting, including a Stars of Texas Bars Award of Merit and an Outstanding Partnership Award, as well as a sweep in its division of the newsletter categories: Best Feature Story, Best News Article, Best Human Interest Story, and Best Series of Articles in both Feature/General Interest and Substantive Law for the newsletter Headnotes. Congratulations on these welldeserved honors. During my year as president of the State Bar of Texas, I am excited to implement a new mentoring program targeted to young lawyers who are making the adjustment from law school to law practice. Called “Transition to Practice,” this program is based on the successful pilot project conducted by the Dallas Bar Association. Feedback from the DBA project and its founders has been instrumental in helping develop the statewide initiative. In July, I had the pleasure of introducing Transition to Practice to local bar associations from across the state at the Bar Leaders Conference. The program, designed to last for one year, is intended to provide local bar associations (or law firms or corporate or gov-

ernmental law departments) with the resources they need to adapt, develop and implement their own mentoring program. Transition to Practice matches newly licensed lawyers with more experienced attorneys who volunteer as mentors. The pairs attend CLE programs and meet in small groups or oneon-one to discuss issues commonly encountered by new practitioners. If you’d like more information on Transition to Practice or would like a copy of the program materials, visit the State Bar Web site at www.texasbar.com or contact the State Bar Local Bar Services Roland Johnson Department at 800-2042222, ext. 1517. In addition to helping new lawyers get their feet under them, we also want to reach out to the future members of our profession during the three-month gap between when they take the bar exam and when they become licensed. Nearly 3,000 people took the bar exam at the end of July, and now, many of them are pondering what steps to take next. On August 1, the State Bar launched a new Web site, AfterTheBarExam. com, a free comprehensive resource designed to provide recent bar examinees with practical tips and how-to’s on a variety of topics ranging from figuring out their next step to law practice management basics and ethics and professionalism. The Web site offers instructional videos from the Texas Young Lawyers Association’s wonderful Ten Minute Mentor program and TexasBar-

CLE’s Online Classroom. Participants who complete at least six hours of the online training will receive a certificate from the State Bar recognizing them for their efforts. And after they are licensed, they can claim MCLE credit for many of the courses. Please encourage soon-to-be lawyers to take advantage of this program. This is a resource we all wish we’d had: a place with answers to those difficult but crucial questions about what path to choose in the law. As these new lawyers enter our profession, they will be joining their new colleagues in facing particularly challenging times. As State Bar president, I want to ensure that the

organization continues to respond to the needs of its members and the clients they serve — and that includes working with our invaluable local bar associations as they maintain and improve their quality programs and resources. In the July Texas Bar Journal, I included a green postcard with my President’s Opinion asking for your feedback on three questions pertaining to our profession: What “best practice” advice can you offer lawyers during these changing times? How can the State Bar of Texas better serve you? What does the public need from lawyers and the State Bar right now? If you haven’t filled out your postage-paid card and sent it in, I encourage you to do so. Or you can e-mail me at statebarpresident@texasbar.com with your thoughts. I look forward to HN hearing from you. A shareholder with Harris, Finley & Bogle, P.C. in Fort Worth, Roland Johnson is the 2009-2010 president of the State Bar of Texas.

Celebrate National Pro Bono Week October 26-30, 2009

n Free CLE Programs — Each day during the week at the Belo Mansion. n Belo Clinic — October 28 from 5 to 9 p.m. at the Belo Mansion. n Wills Intake Clinic — October 30 from 9 a.m. to noon at The Senior Source. Sponsored by the DBA Pro Bono Activities Committee and the Dallas Volunteer Attorney Program. For more information, contact Jigna Vyas Gosal at gosalj@lanwt.org or 214-243-2247.

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

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

Septem ber 2009

Thank You For Your Help With Law Jam 2! Many thanks to the following DBA members whose special efforts made Law Jam 2 a great success! More than 450 tickets were sold, as seven bands — consisting mostly of lawyers — took the stage to raise funds for the Dallas Volunteer Attorney Program to benefit low-income families with legal needs. Penny Blackwell Lisa Blue Stephen Bridges Hon. Tena Callahan Cheryl Camin Al Ellis Dessa Watson Farris Laura Benitez Geisler Chris Hamilton Martha Hardwick Hofmeister Kent Hofmeister

John Horany Bruce Howell Rhonda Hunter David Indorf Lucy Indorf Michele Wong Krause Randy Johnston Hon. Marty Lowy Karen McCloud Patsy Yung Micale Aimee Moore

Hon. Mary Murphy Chad Ruback Mark Sales Bart Sloan Hon. Craig Smith Barry Sorrels Paul Stafford Dena DeNooyer Stroh Christie Villarreal Nelson Weil

Sep t e mb e r 2 0 0 9

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

Public Appeal: Justice for All by Jennifer Green

n ancient Rome, the law and its processes were parts of everyday life that were well known to the average Roman citizen. Major trials and oral arguments unfolded in open areas easily accessible to the public. High-profile cases, such as the famous (or infamous) lawsuit by Clodia Pulchra against M. Caelius Rufus, who was ably defended by Cicero, were as much public theater as legal proceeding. Even the Romans’ relationships with their gods were largely matters of contract. Modern American society still manages to wring some drama out of mediadriven celebrity cases. Yet, on the whole, our society has gotten away from the concept of an open, public and transparent legal system. Consequently most Americans have little familiarity with the purpose and processes of our judiciary or with the role of the judicial branch of government. To help make judicial proceedings less opaque to the public and to school children particularly, the Dallas Bar Association is hosting its “Appealing to the Public” program at the Belo Mansion on Friday, September 11. The program will feature live oral arguments from an actual case pending in the Court of Criminal Appeals, as well as introductory and follow-up explanations

to provide a case overview to the audience. A five-judge panel will consider the case of Juan Lizcano, Appellant v. The State of Texas, Appellee. In November 2005, Juan Lizcano allegedly instigated a police manhunt that resulted in the capital murder of Dallas Police Officer Brian Jackson. In 2007, a jury found Mr. Lizcano guilty, and he was sentenced to death. The case is being appealed for a number of reasons including jury prejudice, questions about witness testimony and mental competency. Specifically, the defense has appealed the sentence to the Court of Criminal Appeals arguing that the trial court violated the defendant’s right to due process when it denied the pre-trial hearing to determine whether or not he is mentally retarded. The Appealing to the Public program presents an unparalleled opportunity for our community to witness how the legal system and the advocacy process work. At least 300 Dallas ISD students will witness the oral arguments. Additionally, children enrolled in the Amachi Texas program who have a parent in prison will be in attendance to get a better perspective of the justice system – along with their mentors.

4th Annual Lighting the Path to Legal Education Awards Dinner Wednesday, September 30 7 p.m. ~ The Belo Mansion The Dallas Hispanic Bar Association will honor Hon. Jerry Buchmeyer and Hon. Merrill Hartman for their distinguished careers. The organization will also present its 2009 Corporate Counsel Diversity Award to Wayne Watts, general counsel of AT&T, and the 2009 President’s Award will be presented to Marcos Ronquillo. All proceeds benefit the Dallas Hispanic Bar Association Scholarship Foundation.

DISD Superintendent Dr. Michael Hinojosa will provide introductory remarks prior to the oral arguments. The DBA’s Appealing to the Public program began in 2006 under the leadership of Past President Mark Sales. A poll commissioned by the American Bar Association revealed that less than two-thirds of Americans could name the three branches of government, let alone explain the roles of the three branches and the importance of the separation of their powers in preserving our freedoms. Our system of government, modeled in part on the balances of Republican Roman government, is essential for preventing any one governmental actor from trampling the liberty of the citizens that the government is supposed to serve. “This program is an important public service for educating and enlightening the community about how the legal system actually works to maintain a bal-

ance and uphold our individual rights as citizens,” according to DBA President Christina Melton Crain. Since the program’s inception in 2006, oral arguments have been held at local high schools and at the Belo Mansion. DBA members and the public are invited to witness the oral arguments on September 11. RSVP to asmith@dallasbar.org. While the American legal system may never enjoy the must-see theater status of Republican Rome, the members of our profession, through this program, can help ensure that our fellow citizens have a better understanding of what judges and lawyers do and why we do it. Further, attendance at this program may allay some of the trepidation caused by the average person’s only exposures to our legal system: HN jury service and traffic court. A member of the DBA Publications Committee, Jennifer Green has a background in immigration and administrative law, and is an attorney licensed in Texas and New York. She is currently taking time off from the legal field to enjoy art and fashion. She can be reached at jagcom16@ yahoo.com.

Join the

DBA Government Law Study Group Thursday, September 3 at 5:30 p.m. at Belo Members interested in government law are invited to join a study group to establish a DBA Government Lawyers Section. This will be the business formation meeting of the proposed section. The group will develop and approve a statement of purpose and goals, discuss future programs/speakers, and elect officers. For more information or to RSVP, contact Chris Bowers at 214-670-3035 or Chris.Bowers@dallascityhall.com. This is a great opportunity to network with other government lawyers. No charge.

DBA Hosts Judicial Investitures

For more information, visit www.dallashispanicbar.com.

LEARN from the MASTERS

The Dallas Bar Association hosted the judicial investitures of three judges at the Belo Mansion this summer. Hon. Robert Fillmore, a justice on the Fifth District Court of Appeals, (far left, photo above) was introduced by Travis Vanderpool and sworn in by Chief Justice Linda Thomas, and Hon. John Peyton, judge of Probate Court 1, (center, photo above) was introduced and sworn in by Hon. Ted Akin.

Sid Stahl

John Estes

BASIC MEDIATION TRAINING A Unique Opportunity to Learn Mediation from the Best Join 2 prominent experienced mediators for a limited enrollment three-day, small-group course providing lawyers the training necessary to be successful in mediation. October 29, 30 and 31 in Dallas, Texas • MCLE Approved FOR INFORMATION OR REGISTRATION CALL: 214/720-4070

Hon. James Stanton, judge of the 134th District Court, (center) was introduced by R. Jack Ayres Jr., and welcomed by DBA President Christina Melton Crain.

10 H e a d n o t e s l D a l l a s B a r A ss ociationâ&#x20AC;

Septem ber 2009

BEYOND A SHADOW OF A DOUBT. Shed light on your most challenging and complex business disputes and investigations. Turn to us for direction(s).

www.navigantconsulting.com

ÂŠ2009 Navigant Consulting, Inc. All rights reserved. 1DYLJDQW &RQVXOWLQJ LV QRW D FHUWLÂżHG SXEOLF DFFRXQWLQJ ÂżUP DQG GRHV QRW SURYLGH DXGLW DWWHVW RU SXEOLF DFFRXQWLQJ VHUYLFHV Âł1$9,*$17Â´ LV D VHUYLFH PDUN RI 1DYLJDQW ,QWHUQDWLRQDO ,QF 1DYLJDQW &RQVXOWLQJ ,QF 1&, LV QRW DIÂżOLDWHG DVVRFLDWHG RU LQ DQ\ ZD\ FRQQHFWHG ZLWK 1DYLJDQW ,QWHUQDWLRQDO ,QF DQG 1&,ÂśV XVH RI Âł1$9,*$17Â´ LV PDGH XQGHU OLFHQVH IURP 1DYLJDQW ,QWHUQDWLRQDO ,QF 6HH ZZZ QDYLJDQWFRQVXOWLQJ FRP OLFHQVLQJ IRU D FRPSOHWH OLVWLQJ RI SULYDWH LQYHVWLJDWRU OLFHQVHV

Sep t e mb e r 2 0 0 9

Dal l as Bar A ssoci ati on l Headnotes 11

DBA Launches Easily Accessible Online Member Directory Staff Report

BA’s new Online Member Directory is now available on the Dallas Bar Website. This year DBA members had the option of receiving their 2009 Member Directory in print or online version. The response to the new online version has been enthusiastic and very favorable. Members have found the greatest benefit is the contact information is updated frequently, a feature not possible with the print version. Accessible through the Member Directory icon on the Dallas Bar’s home page (www.dallasbar.org), the directory is available for current DBA members and is password-protected. The directory is searchable by name, firm name, ZIP code, law school and other state licenses. A menu across the top of the directory makes it easy to navigate to the various sections of the directory. Additionally, a Legal Resource & Expert Witness Guide is included, which contains advertisers, law firm listings, areas of practice listings and foreign language proficiency listings which are all searchable. Another great reference source, the

Courts Directory, is included with all the federal, state and local courts. Each DBA member has a profile photo (if available), firm name, contact information, a link to e-mail, law school, date admitted to the State Bar, and DBA Section and Committee membership. The address section is blank for members who have only provided their residential address to the Dallas Bar. Members can easily update their contact information or provide a profile photo by contacting Judi Smalling at jsmalling@dallasbar.org. Many members have found that the online Member Directory is easily accessed from an iPhone, Blackberry or mobile device, which is helpful when trying to locate a DBA member when away from the office. The DBA Online Member Directory includes paid advertising

at reasonable rates – both rotating banner ads and smaller tile ads are available to vendors and law firms alike. Anyone interested in online advertising in the directory can contact Patty-Joan “PJ” Hines at pjhines@ legaldirectories.com or 214-321-3238, ext.

142, for more information. If you need assistance accessing the Online Member Directory, please contact Judi Smalling at jsmalling@dallasbar.org to request your online login HN information.

Consumer-Creditor Law Seminar Tuesday, September 15 ~ 8:30 a.m. to 5 p.m. The Belo Mansion ~ MCLE 7.00, including Ethics 1.00 Moderator: Hon. Sally Montgomery Topics Include: Mediation * Debt Settlement * Service Process * Remedies and Liens * Summary Judgments * Ethics in the Courtroom * Sponsored by DBA CLE Committee and Dallas Women Lawyers Association. No Charge -- MUST RSVP to ktarangioli@dallasbar.org.

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

Leimberg is the author of numerous books on estate, financial, and employee benefit and retirement planning and a nationally known Stephan R. Leimberg speaker. Leimberg is the creator and principal author of the entire Tools & Techniques series. A nationally known speaker, Professor Leimberg has addressed the Miami Tax Institute, the NYU Tax Institute, the Notre Dame Law School and Duke University Law School's Estate Planning Conference, the National Association of Estate Planners and Councils, and the AICPA's National Estate Planning Forum. Leimberg has also spoken to the Federal Bureau of Investigation, and the National Aeronautics and Space Administration. Leimberg was named 1998 Edward N. Polisher Lecturer of the Dickinson School of Law and was a featured speaker at the American Bar Association's Tax Sections Annual Meeting.

Thursday, September 17 2009 Breakfast at 7:30 a.m. Seminar 8:00 a.m. - 10:15 a.m. $60 Our 2009 Seminar has a new location: Westin Park Central 12720 Merit Drive Dallas, TX 75251 Valet parking $10. Surface self parking is complimentary. Earn 2 CE Hours

Register online at www.DJCF.org Join us for a networking reception immediately following the seminar. Call 214-615-9351 or e-mail info@djcf.org

2009 Sponsors

Prescott Pailet Benefits LP Bessemer Trust The Blum Firm, P.C., Attorneys at Law Cole & Reed, PC Financial Planning Associates Frost Bank Financial Management Group Gardere Wynne Sewell, LLP Hill Schwartz Spilker Keller LLC Hunton & Williams, LLP Jackson Walker, LLP Klein & Pollack, LLP Kroney Morse Lan, PC

Bernstein Global Wealth Management A unit of AllianceBernstein L.P. Lane Gorman Trubitt, LLP Philip Vogel & Co., PC Silverman Goodwin, LLP Stanford M. Kaufman and Associates TravisWolff Independent Advisors & Accountants U.S. Trust, Bank of America Private Wealth Management Waldman Bros. Weaver and Tidwell, LLP Winstead, PC

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

Focus

Septem ber 2009

Business Litigation

Follow the Money: Increasing the Chances of Recovery continued from page 1

or the filing of a lawsuit, or included substantially all of the debtor’s assets. Alternatively, if the debtor made the transfer without receiving reasonably equivalent value at a time when the debtor was insolvent, or in the “zone of insolvency,” a current creditor need not show actual fraudulent intent. One issue to watch is whether the recent decision by the Finance Accounting Standards Board granting companies more flexibility in valuing assets will hamper a creditor’s ability to establish insolvency. The UFTA allows a creditor to seek, among other things, a pre-judgment attachment of the asset transferred, avoidance of the transfer, an injunc-

tion preventing further transfers by the debtor or a transferee, and the appointment of a receiver. The pre-judgment remedies must be sought under the exacting requirements of the Texas Rules of Civil Procedure and Civil Practice & Remedies Code, including the filing of an appropriate bond and supporting evidence. As an alternative to voiding a transfer, the creditor may recover a judgment against the first transferee of the asset or any subsequent transferee, other than one who took in good faith for value. If you fear your defendant is undercapitalized, explore whether a parent or affiliated company might also justly be held liable. The Texas Supreme Court’s recent decision in SSP Partners v. Gladstrong Investments (USA) Corp.,

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275 S.W.3d 444, 456 (Tex. 2008) did away with the single business enterprise theory for extending liability to affiliated companies. The Court nevertheless left intact the joint enterprise theory, the elements of which are an agreement among the entities, a common purpose, a community of pecuniary interest, and an equal right of control. Id. at 451. Common law “piercing the corporate veil” and “alter ego” theories remain viable where “the corporate form has been used as part of a basically unfair device to achieve an inequitable result.” Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986). The legislature, however, added the requirement that a plaintiff show that the shareholder used the “entity shield” to perpetrate an actual fraud on the plaintiff for the benefit of the shareholder. Tex. Bus. Corp. Act Art. 2.21; Tex. Bus. Org. Code Art. 21.223. Finally, in recent news reports, a claim for conspiracy to breach fiduciary duties recently resulted in a $178.7 million verdict for minority sharehold-

ers claiming that the majority shareholder and other related parties took improper actions to minimize the valuation of their shares in a share repurchase. This theory allowed the minority shareholders, at least at the trial court level, to extend liability beyond the contractual parties. While the defendants’ counsel argues the verdict is legally flawed, conspiracy to violate fiduciary duties can be a viable claim in the right circumstances. Similarly, because corporate agents generally are liable for their own fraudulent and tortious acts, even when committed while in the service of their corporation, attorneys should consider adding these parties as well. By exploring and prosecuting fraudulent transfers and pursuing every viable claim and party, attorneys can help maximize their client’s chances of a HN real recovery. Jacob Marshall is a partner in Marshall & Kellow, LLP and practices in the areas of commercial litigation and professional negligence. He can be reached at JMarshall@ MKTexasLaw.com.

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Sep t e mb e r 2 0 0 9

Focus

Dal l as Bar A ssoci ati on l Headnotes 13

Business Litigation

Waive the Jury, Not the Appeal by Tricia R. DeLeon and Janelle S. Forteza

itigators are often asked by their clients or their corporate counterparts “how can we limit our exposure from potential litigation in our business contracts?” Many think that including mandatory arbitration clauses in a contract will cap litigation costs for parties defending the contract. There is a better alternative in Texas for corporate defendants, though – include a jury waiver clause within the contract.

Enforceable in Texas

Texas courts typically enforce a jury waiver clause if the party objecting to the clause signed the contract knowingly and voluntarily. The Texas Supreme Court recently bolstered the validity of such clauses. In Re Bank of America, N.A., 278 S.W.3d 342 (Tex. 2009). The Court held that not only are jury waiver provisions enforceable, the burden lies on the party objecting to the waiver to show the waiver was not signed voluntarily or knowingly. It is important to note that the jury waiver provision must be signed voluntarily and knowingly.

Drafting a Jury Waiver Clause

In the Bank of America case, the bank and a homeowner executed a real estate contract and a two-page mortgage addendum that had 20 numbered and separately-spaced paragraphs. Five of the paragraphs contained bold introductory phrases, including the jury waiver clause that stated: “Waiver of Trial by Jury. Seller and buyer knowingly and conclusively waive all rights to trial by jury, in any action or proceeding relating to this Contract.” The Texas Supreme Court found that this jury waiver clause was sufficient. Absent any proof of fraud, a conspicuous waiver of trial by jury is presumed to be knowing and voluntary, and the party is presumed to know what it is signing. When drafting a jury waiver clause, be sure that it stands out within the contract. Put the title of the section in bold type and/or capital letters. Be sure to also state, like the Bank of America contract, that the contracting party knowingly and voluntarily waives its constitutional rights to a trial by jury.

Better Option Than Arbitration?

Contract drafters should consider including jury waiver clauses rather than opting for mandatory arbitration. A bench trial has at least three advantages over arbitrations. Appealability. A jury waiver clause only requires that the contracting parties try a case, if necessary, before a judge, rather than the jury. The judge’s decision is appealable just like a jury verdict. An arbitrator’s decision is rarely, if ever, an appealable decision. This can be a problem for cases involving novel issues or jurisdictional splits with no clear answer. Appeals are a necessary part of the judicial system to establish precedent and ensure the proper result. Impartial, legal expert who understands the law. One benefit of arbitration is that impartial, experienced legal experts decide the case based on the application of the facts to the law. This kind of panel may be attractive to defendants. In a bench trial, though, the judge is also an impartial, experienced legal expert, and one who will understand and properly decide complex legal arguments. There are no “runaway juries” with either option. Costs. Arbitration can be a costly method of dispute resolution for a defendant who is involuntarily brought to court. In addition, the fees for arbitration can exceed those of the judicial system. Parties are typically required to pay an arbitration fee which can cost thousands of dollars in some cases. For example, the American Arbitration Association currently charges an initial filing fee of $2,750 for a case that has between $150,000 and $300,000 in controversy. Some arbitrators also charge separate fees to file motions, issue subpoenas, or send discovery requests. A defendant in a bench trial will not be forced to pay those filing fees to defend the lawsuit. Arbitration is still an effective method for dispute resolution, but a bench trial is just as effective and can provide more advantages. The trial court’s judgment is still appealable, a judge can handle complex legal issues, and the costs of the judicial system are often less than arbitration. So, waive the jury, and not the appeal.

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Tricia R. DeLeon and Janelle S. Forteza are attorneys at Bracewell & Giuliani LLP. They practice commercial litigation with an emphasis on defending financial institutions. Both are members of the DBA Business Litigation Section. They can be reached at tricia.deleon@bgllp.com and janelle. forteza@bgllp.com, respectively.

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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 ss ociation

Focus

Septem ber 2009

Business Litigation

Enjoying Federal Court as a 'Hometown' Defendant by Yvette Ostolaza and Michelle Hartmann

he “Forum Defendant Rule,” found at Section 1441(b) of Title 28 of the United States Code, prevents removal when one or more defendants is a “citizen of the State” in which the action is filed. The express terms of Section 1441 bar removal only when one or more of the “parties in interest” is a resident defendant and such defendant has been “properly joined and served.” Defendants have relied on this language to successfully remove despite the nominal presence of a “hometown” defendant.

Diversity Jurisdiction and the Forum Defendant Rule

Diversity jurisdiction is intended to counter fears of prejudice against outof-state parties in state courts. Federal courts have original jurisdiction over cases exceeding $75,000 in controversy between citizens of different states. Diversity jurisdiction is concurrent, thereby permitting a plaintiff to choose between federal or state court. Section 1441(b) counters this concurrent jurisdiction and governs removal by a defendant. Presumably because it saw local prejudice as an irrelevant fear where the removing defendant is local, Congress limited removal jurisdiction under Section 1441(b) in circumstances where complete diversity exists but a defendant is a citizen of the state in which the action was brought. The Forum Defendant Rule thus permits removal of diversity jurisdiction cases “only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

No. 08-640-JJF-LPS, 2009 WL 192468 (D. Del. Jan. 23, 2009). The court noted that “removal statutes expressly permit defendants to remove state court actions to federal court prior to service,” and denied the motion to remand. It concluded that the “sole function of the court is to enforce [Section 1441(b)] according to its terms.” Those terms call only for consideration of defendants that have been served. Indeed, Section 1441 is so unambiguous that courts have found Section 1441(b) to permit pre-service removal by a forum defendant even when it is the sole named defendant. The argument is not without critics, particularly where no defendant has been served. For example, other courts have held that a forum defendant, whether or not it has been served, may never remove an action from state court on the basis of diversity jurisdic-

tion. In Sullivan v. Novartis Pharmaceuticals Corp., the resident defendant removed before being served. The court remanded: “[G]iven that the purpose of the ‘properly joined and served’ language is to prevent one form of gamesmanship – improper joinder – the court finds that allowing defendants to engage in another type of gamesmanship – a hasty filing of a notice of removal – is demonstrably at odds with Congressional intent,” particularly when some state court systems require plaintiffs to receive a track assignment number before serving the defendant. 575 F. Supp. 2d 640, 647 (D.N.J. 2008). In this circuit, while the express limitation found in language of the Forum Defendant Rule is complicated by the Fifth Circuit’s unanimity rule, the Northern District of Texas has intimated that the presence of a resident defendant does not render an otherwise

Limited in Scope

The “properly joined and served” limitation in the Forum Defendant Rule was made a part of the removal doctrine in 1948 and was intended to target the fraudulent or improper joinder of a resident defendant against whom the plaintiff did not intend to proceed and for whom the plaintiff had not effected service. The language has been utilized recently by defendants to successfully circumvent the Forum Defendant Rule. Numerous courts have recently upheld the removal of a multi-defendant action removed before the forum defendant was served. And even in circumstances when no defendant has been served, many courts have upheld removal by a non-resident defendant. For example, in Hutchins v. Bayer Corp., a non-resident defendant removed a multi-defendant case before any of the defendants, including the resident defendant, had been served.

5th Annual Civil Collaborative Training & Civil Collaborative Law Symposium September 23-25 ~ Belo Mansion Sponsored by the DBA Collaborative Law Section and Global Collaborative Law Council. For more information about the program, presenters and online registration, visit collaborativelaw.us/events.php.

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removable case unremovable so long as the removing, non-resident defendant has been served or otherwise has entered a voluntary appearance. See Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, Inc., No. 97-945, 1998 WL 119528, at *3 n.3 (N.D. Tex. Mar. 5, 1998). Though Congress may not have anticipated that defendants could someday actively monitor state court dockets to remove a case before being served, the plain language of Section 1441 states that unserved defendants should be ignored for purposes of Section 1441, even when they are “home HN town” defendants. A partner with Weil, Gotshal & Manges LLP, Yvette Ostolaza is co-head of the firm’s complex commercial litigation section, and Michelle Hartmann Murawski is an associate with the firm, with an emphasis on complex civil and employment litigation and arbitration. They can be reached at yvette. ostolaza@weil.com and michelle.hartmann@weil.com, respectively.

Sep t e mb e r 2 0 0 9

Focus

Dal l as Bar A ssoci ati on l Headnotes 15

Business Litigation

New Consumer Product Safety Laws by Kurt Meaders

new federal regulatory scheme affects many consumer products. The Consumer Product Safety Improvement Act of 2008 overhauled safety laws affecting virtually all entities in the distribution chain. The new laws ban lead and phthalates in certain products and change standards regarding ATVs, cribs, pacifiers, pool drain covers and other products. These changes have the attention of industry. Any business that sells or distributes anything used by consumers has new certification and legal requirements. Products including bikes, baseball caps, backpacks, electronics, clothing, wall decor, pens, books and even dolls or wooden toys handmade by a local artisan, all fall under the lead and phthalates ban. And any sale, from the mom-and-pop bazaar down the street to the big boxes, is in the crosshairs of the Consumer Product Safety Commission.

Certificates of Conformity

The new legislation increases the range of products that require testing and certification. Previously, certification was generally required only for consumer products subject to standards promulgated by the commission under the earlier Consumer Product Safety Act. Effective November 12, 2008, the 2008 act extended this general certification requirement to all products subject to any standard or regulations under the earlier act and to products

subject to any similar rule, standard, ban or regulation under any other act enforced by the commission. This general certification is sometimes called a “supplier’s declaration of conformity.” These general certificates need not be based on third-party laboratory testing, but must be based on tests or a “reasonable testing program.” The new legislation does impose additional third-party testing for all “children’s products” – consumer products primarily intended for children younger than 13. Every manufacturer (including an importer) or private labeler of a children’s product must have its product tested by an accredited independent testing lab and, based on the testing, must issue a certificate that the product meets all applicable CPSC requirements. The commission did grant a oneyear stay of enforcement of the lead and phthalate testing and certification requirements. Products, however, must still meet the underlying lead and phthalates limits, mandatory toy standards and other requirements. Thus, without testing, products can still violate the act. The stay, moreover, does not apply to any other standard or requirement.

New Standards & Denied Exclusions

The 2008 act banned “pthalates,” a plastic additive, from children’s toys and child care products and reduced the amount of lead permitted in children’s products. In short, no entity can sell or distribute any product,

even existing inventory that violates these exacting standards. Section 101(b)(1) of the CPSIA provides very strict rules for exclusion. Despite several petitions, the commission has not found any children’s product exempt. n Children’s ATVs, Motorcycles, Snowmobiles, Bikes, Strollers and Bike Trailers. The commission denied an exclusion from the lead standards for multiple parts such as valve stems and brake components, but voted to “stay” enforcement on such products until 2011. n Writing Instruments. The commission denied a request to exclude brass pen tips from the lead requirements and did not “stay” the standards. Instead, it issued an “advisory” that most pens were “general use” and not “children’s products” subject to lead limits. However, the advisory provided no relief for those writing instruments that would be considered primarily intended for those younger than 13. n Crystal Beads and Rhinestones in Children’s Jewelry and Clothing. The commission first found it lacked authority to act on this industry’s request and recently denied a petition for exclusion. The chairman promised to focus on only those products intended for children under 7. n Dental Devices. The commission provided an “advisory” opinion that dental devices were not subject to the 2008 act because they were medical devices regulated by the Food, Drug and Cosmetic Act, and because “consumer products” excludes “drugs, devices, or cosmetics.”

Other Provisions

We’re Expanding in Dallas

The law firm of Dykema has expanded its Dallas office with five additional attorneys and is now located on the 40th Floor in the Comerica Bank Tower. Michael J. Dalton formerly of Greenberg Traurig, LLP Erin B. Dempsey formerly of K&L Gates LLP Brian R. Forbes formerly of K&L Gates LLP

Children’s products manufactured after August 14, 2009, must have tracking labels providing manufacturer, location and date of production and cohort information (batch, run or other identifier). The commission has proposed mandatory recall notices requirements for all recalled products (http://www.cpsc.gov/about/cpsia/ cpsia.html). The new law bolsters the commission’s power. It now can: n require public notice of recalls; n disseminate information about hazardous products to the public without a recall; n halt the distribution of the products before a final determination of the product’s safety or a recall is announced; and n create a comprehensive online

database to collect information on injury, illness and death due to the use of products. The 2008 act enhanced civil and criminal penalties for violation of any commission requirement: n Civil penalties – $100,000 per violation; n Maximum penalty – $15,000,000; and n Criminal penalties – asset forfeiture and imprisonment of a firm’s officers and directors even absent actual knowledge of a violation. Further, through the 2008 legislation, Congress allocated greater resources to the commission, including: n Personnel to be increased by 500 by October 1, 2013; n 626 million new dollars allotted between 2010 and 2015; n Authorization of state attorneys’ general enforcement; and n The ability to enforce whistleblower protections. The new legislation, and particularly the CPSIA, has been a source of substantial contention. In these trying economic times, estimates are that the legislation has already cost product sellers more than $150 million. Those affected by the legislation risk substantial penalties without verification of compliance. Industry groups have called for a complete recission of the new laws and significant relief. The commission has denied exclusions but has also refused to enforce some provisions of the new legislation. Advocates see the struggle by industry to comply as a positive indication of progress. Some state attorneys general and advocacy groups have sought to enforce the requirements through state court litigation regardless of the commission’s internal stay of enforcement. Those potentially affected by the changes should develop compliance programs, even as the enforcement of the new laws are in flux. Any company or person in the distribution chain of consumer goods, any person who consults with such entities, and any attorney who has cases concerning consumer goods, must be fully aware of the new legislation’s HN reach. Kurt Meaders is a partner with Sedgwick, Detert, Moran & Arnold, LLP. His practice focuses on product liability, commercial litigation, business issues and employment disputes, primarily in manufacturing/construction industries. He can be reached at kurt.meaders@sdma.com.

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

Focus

Septem ber 2009

Business Litigation

Court’s Twombly Standard Now Applies to All Civil Cases by Eliot T. Burriss and Zachary Hoard

any practitioners know that the U.S. Supreme Court heightened the standard for pleading an antitrust claim in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). It held that, to survive a motion to dismiss, a complaint asserting an antitrust claim must allege “enough facts to state a claim to relief that is plausible on its face.” After the Twombly decision, there was considerable debate as to whether this “facial plausibility” standard applied outside the antitrust context. Recently the Supreme Court clarified the reach of Twombly in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), holding that that decision applies to “all civil cases.”

Case History

Javaid Iqbal was a citizen of Pakistan who was arrested and detained in the United States on criminal charges after the September 11, 2001, terrorist attacks. While awaiting trial, Mr. Iqbal was housed in the Metropolitan Detention Center in Brooklyn, N.Y. Because he had been designated as a person of high interest in the 9/11 investigation, he was held in maximum security. He alleged, among other things, that he had been repeatedly subjected to unwarranted strip searches and to verbal and physical abuse. After pleading guilty to several criminal charges, he was removed to his native Pakistan after serving a term of imprisonment in the United States. Upon returning to Pakistan, Mr. Iqbal filed suit against several U.S. officials, claiming

he was deprived of various constitutional protections while in federal custody. He generally alleged that the FBI had detained thousands of Arab Muslim men after 9/11, and that there was a policy of holding post-9/11 detainees in highly restrictive confinement until they were “cleared” by former Attorney General John Ashcroft and FBI Director Robert Mueller. Mr. Iqbal also alleged that those defendants knew of and condoned his detention conditions due to his race, religion and/or national origin. The defendants moved to dismiss his complaint for failure to state a claim under Rule 8 of the Federal Rules of Civil Procedure. The district court denied the motion, holding that “it cannot be said that there [is] no set of facts on which respondent would be entitled to relief against defendants.” The Second Circuit Court of Appeals affirmed. After carefully considering whether Mr. Iqbal’s claims were subject to Twombly’s heightened pleading standard, the Second Circuit determined that his claims were not within the class of claims that Twombly required to be amplified with factual allegations to be rendered “plausible.”

The High Court’s Review

The Supreme Court first analyzed Mr. Iqbal’s allegations by looking to the standard announced in Twombly. To survive a motion to dismiss, a complaint must contain sufficient factual matter that, accepted as true, states a claim for relief that is plausible on its face. Although not “akin to a probability requirement,” the Court noted that the plausibility standard requires

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the complaint to do more than raise a sheer possibility that a defendant acted unlawfully. A complaint that pleads facts that are merely consistent with a defendant’s liability stops short of the line between possibility and plausibility of entitlement to relief. Turning to Mr. Iqbal’s complaint, the Court held that the allegations that the defendants “knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions” were bare assertions that were nothing more than a formulaic recitation of the elements of the asserted claims. Similarly, with respect to the allegations that the defendants instituted a policy to classify certain Arab Muslims as persons of high interest and detain them until cleared by the FBI, the Supreme Court held that those allegations did not show or even intimate that the detainees were held in maximum security due to their race, religion or national origin. As a result, the Court held that Mr. Iqbal’s complaint lacked sufficient factual content to nudge his claims across the line from conceivable to plausible. Notably, the Supreme Court also specifically rejected Mr. Iqbal’s argument that Twombly should be limited to antitrust disputes. The Court held that Twombly was based on the Court’s interpretation and application of Rule 8. The Court stated succinctly that its “decision in Twombly expounded the pleading standard for ‘all civil actions.’”

The Impact of the Decision

District courts have not been

loathe to apply the Supreme Court’s holding in Iqbal. According to an article in the New York Times in July, Iqbal was cited more than 500 times in the first two months after it was handed down. Closer to home, U.S. District Judge Sidney Fitzwater recently applied the facial plausibility standard in S.E.C. v. Cuban, in granting Mark Cuban’s motion to dismiss. In that case, citing Iqbal, the court found that the SEC had not adequately alleged that the defendant undertook a duty of non-use of information required to establish liability under the misappropriation theory of insider trading. District courts have been so enthusiastic in applying Iqbal that U.S. Sen. Arlen Specter introduced the “Notice Pleading Restoration Act of 2009” to return the pleading standards to the “no set of facts” standard handed down in Conley v. Gibson. According to Sen. Specter, the Supreme Court’s decisions in Twombly and Iqbal will “deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries.” While there is no bright line test to determine when the factual allegations cross the line separating mere possibility from plausibility, it is clear that Twombly’s facial plausibility standard is the standard by which claims in all HN civil cases will be judged. Eliot Burriss and Zachary Hoard are associates in the litigation section of DLA Piper’s Dallas office. They can be reached at eli.burriss@dlapiper.com and zachary.hoard@dlapiper. com, respectively.

Sep t e mb e r 2 0 0 9

Focus

Dal l as Bar A ssoci ati on l Headnotes 17

Business Litigation

Confidentiality Issues in Alternative Dispute Procedures by Ralph E. (Gene) Roberts Jr.

hile “What happens in Vegas, stays in Vegas” may be true, what happens in an ADR proceeding may not have the same level of confidentiality as a Vegas vacation. Even though ADR proceedings are cloaked in confidentiality, rulings by Texas appellate courts, including the the Fifth District Court of Appeals at Dallas, reveal that ADR confidentiality is not absolute.

Confidentiality Under the ADR Statute

Section 154.053 of the Texas Civil Practice and Remedies Code establishes the framework of confidentiality upon the neutral and the parties. It requires the neutral to “not disclose to either party information given in confidence by the other” and to maintain at all times “confidentiality with respect to communications relating to the subject matter of the dispute.” The statute also directs that “all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court” unless the parties agree otherwise. Section 154.073 constructs the standards for the confidentiality of ADR records and communications. The statute provides that communications “relating to the subject matter” of a dispute made by an ADR participant are confidential, are not subject to disclosure, and may not be used as

evidence against the participant in any judicial or administrative proceeding. It further provides that any record made at an ADR proceeding is confidential. The parties and the neutral “may not be required to testify in any proceedings relating to or arising out of the matter in dispute, or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.” Section 154.073(c), however, allows the discovery and admissibility of oral communications or written materials “used in or made a part of” an ADR procedure if they are otherwise “admissible or discoverable independent of” the ADR procedure.

Materials Presented & Attendance at Mediation

In In re Learjet, Inc., 59 S.W.3d 842, 847 (Tex. App.—Texarkana 2001, no pet.) the court held that videotaped witness statements, played during mediation to present factual information to the opposing parties, were discoverable and that the “mediation activities did not provide a blanket protection for all such material.” Further, attendance at mediation is not confidential, according to In re Daley, 29 S.W.3d 915, 917 (Tex. App.—Beaumont 2000, orig. proceeding). Whether a party attended mediation, or had permission to leave, may be the subject of discovery because attendance does not concern the “subject matter” of the dispute or the “manner in which the participants negotiated.”

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The Offensive Use Doctrine

The offensive use doctrine applies to ADR confidentiality. In Alford v. Bryant, 137 S.W.3d 916 (Tex. App.— Dallas 2004, no pet.), a client sued her attorney for professional malpractice related to a mediated settlement agreement. The only issue not settled at mediation (attorneys’ fees) was not resolved in the client’s favor at trial, so she sued her attorney for malpractice – a new and independent cause of action that arose during mediation – because of the alleged failure of her attorney to disclose the risks and benefits of settlement. Because the attorney and the client disputed whether the risks of not settling were disclosed, the tie-breaker was the mediator, who was present during those conversations. The court of appeals held that the trial court erred in not allowing the mediator to testify. Because the client was seeking relief – and using the shield of confidentiality to support her claim, the evidence sought was outcome-determinative, and there was no other method for the attorney to obtain the needed evidence, the mediator should have been allowed to testify.

Subsequent Actions

In Knapp v. Wilson N. Jones Memorial Hospital, 281 S.W.3d 161 (Tex. App.—Dallas 2009, no pet.), the court considered whether depositions and documents used during an arbitration proceeding could be used in a separate, unrelated proceeding. In Knapp, an employee sought to discover documents from an arbitration between his employer and his employer’s auditor. The employee claimed that the testimony of the employer at the arbitration may have been inconsistent with later testimony but the inability to discover such evidence prevented him from impeaching witnesses. Holding that §154.073 does not create a “blanket of confidentiality, nor is it so broad as to bar all evidence regarding everything that occurs at arbitration from being presented to the trial court,” the court allowed materials used as part of an arbitration to be used at a later HN trial. Gene Roberts is a mediator and attorney. He is the secretary of the DBA’s Alternative Dispute Resolution Section and president-elect of the Association for Conflict Resolution – Dallas Chapter. He can be reached at gene.roberts@ therobertsfirm.net.

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

Septem ber 2009

DBA Education Symposium: Strategies for Success n Hon. Marilea Lewis, of the 330th District Court and chair of the DBA’s 2009 Education Symposium, will provide an overview of the program. n Dallas ISD Superintendent Dr. Michael Hinojosa will deliver a “State of the District” address. n Reading panel discussion, by Helen Van Auken, president of My Very Own Book, which rewards children who read by giving them more books. n Student panel discussion. The symposium will culminate with a luncheon and the presentation of the 2009 Jack Lowe Sr. Award for Community Leadership in Education to Linus Wright. Mr. Wright served as superintendent for the Dallas Independent School District from 1978 to 1987. Prior to that, he was a public school teacher and principal. President Ronald Reagan appointed Mr. Wright as Under Secretary of Education and to the U.S. Department of Education’s Fund for the Improvement and Reform of Schools and Teaching. He has also served on the Texas Business and Education Committee and the Dallas Citizens Council Fiscal Affairs Committee. During the past 20 years, Mr. Wright has served as an educational consultant to numerous boards of education on matters regarding instructional programs, magnet schools, administration and organization management procedures, personnel policies and procedures, recruitment, evaluation and desegregation. More recently, Gov. Rick Perry selected Mr. Wright in January to chair the Texas Teacher Retirement System of Texas. Mr. Wright gives much of the credit for his success in the education community to his mentor, Jack Lowe Sr. “Several years ago, when leaders of the DBA began hosting our annual education symposium, it was a visionary and emblematic move that demonstrated how critically important it is for us to invest in our youth,” DBA President Christina Melton Crain said. “I am thrilled that we are once again

by Florentino A. Ramirez

n 2003, DBA President Brian Melton wanted to host an interactive program to bring representatives from the business, education and legal communities together to discuss issues affecting public education. The result of Mr. Melton’s plan was the establishment of the Community Symposium for Justice in Education, now celebrating its seventh year. The DBA teamed up with Dallas school board trustee Jack Lowe Jr. for the initial planning. As part of the program, the Lowe family wanted to recognize community leaders for their dedication and commitment to the improvement of public education. The result was the creation of the Jack Lowe Sr. Award for Community Leadership in Education, named after the founder of TD Industries Inc. and first chairman of the Dallas Alliance Education Task Force, which advocated for the desegregation of Dallas public schools. The Dallas Bar Association has a long and successful history of supporting multiple programs benefiting the students of Dallas public schools. The symposium gives the members of the legal and business com- Linus Wright munities an opportunity to hear the success stories of the districts’ students and educators, while opening a dialog for the continued support for public education. Various programs have emerged from the symposium’s dialog, including the award-winning E-Mentoring, Esq. initiative that pairs professionals with students via periodic e-mail messages that encourages the teens to do well in school. The Dallas Independent School District’s vision is to be the best urban school district in the United States. “We are working diligently to improve student achievement in all schools and all grades” Dr. Michael Hinojosa stated in a recent Dallas ISD Newline article. “Indeed, there is much good news from the Dallas ISD that I want to share.” The 2009 Community Symposium for Justice in Education will include presentations from the following:

joining with the school district to discuss and formulate initiatives to help students reach their potential, which translates into success for our community. And honoring former Superintendent Linus Wright this year is so very appropriate, as it has been his life’s mission to create solutions to empower the next generation.” Dallas Bar Association members, as well as members of the business and education community, are invited to attend the education symposium which will be held at the Belo Mansion on Wednesday, October 14. Registration begins at 8 a.m., with welcoming remarks at 8:30

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IRS TAX PREPARATION

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Florentino A. Ramirez is a shareholder in Ramirez & Associates, P.C., with offices in Dallas and Mexico City. Mr. Ramirez practices in the areas of business immigration and international transactions and is chair of the DBA International Law Section and Judiciary Committee.

Nominations Now Being Accepted For Dallas Bar Foundation 2010 ‘Fellows Award’ The annual Fellows Award is the most prestigious honor of the Dallas Bar Foundation and is presented every year at the Fellows’ luncheon. n Nominees must be DBA members who have adhered to the highest principles and traditions of the legal profession and who are highly respected within the legal profession. n Nominees must also have served the community and the legal profession, while adhering to the highest ethical standards. n Being a Fellow of the Dallas Bar Foundation is not a prerequisite for nomination, but it is a factor that may be considered in the selection process. Please submit nominations by November 1, 2009, to Leon Carter (2009 DBF Fellows Vice Chair) at LCarter@munckcarter.com. Past recipients of the Fellows Award include: Hon. L.A. Bedford Jr., George W. Bramblett Jr., Hon. Jerry Buchmeyer, Adelfa B. Callejo, James E. Coleman, John L. Estes, Hon. Merrill Hartman, John L. Hauer, Hon. Robert W. Jordan, Harriet E. Miers, Louise Raggio, Hon. Barefoot Sanders, Hon. Linda B. Thomas, Robert H. Thomas and H. Ron White.

THE TRUST HAS YOU COVERED The State Bar of Texas Insurance Trust specializes in helping all Bar Members and their Eligible Employees obtain complete insurance coverage at any point in their lives. From Health Insurance to Long Term Disability Insurance, the Trust has you covered. Your quote is only a phone call or click away.

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a.m. The luncheon will begin at noon in the Belo Pavilion. Please contact Alicia Hernandez at (214) 220-7499 (or ahernandez@ dallasbar.org) for reservations. Registration is $35, which includes continental breakfast and lunch, and may be paid in advance or the morning of the event. Scholarships for this event are also available by contacting Alicia HN Hernandez.

Visit www.sbotit.com or call 800.460.7248.

New Truancy Magistrates in Dallas County

hree new part-time truancy court magistrates have been selected to alleviate the crowded dockets in the five truancy courts that serve school districts throughout Dallas County. County Judge Jim Foster has appointed former judge Charles Stokes, Colleen Doolin Skinner and Joshua H. Northam. Truancy court magistrates, by law, must be licensed lawyers and have practiced four years prior to appointment. “The full-time judges have vacation time and continuing legal education courses they must attend. The courts are not serving the citizens if they are dark, hence the need for the part-time judges to fill in and keep control of the dockets,” Judge Foster said. “Sometimes these judges hear 200 to 300 cases a day, so understandably it’s important to keep the cases moving.” A sixth court in the Grand Prairie and Irving area may be established in the near future. In Texas, truancy includes three unexcused absences within one month, or 10 or more days within six months. Partial days count as full days. Failure to attend school is a Class C misdemeanor. If parents fail to require their children to go to school, they can be charged with “parent contributing to non-attendance,” a Class C misdemeanor. Parents can be fined up to $500 for each day the student misses. In 2008, more than 20,000 truancy cases were filed, up from 12,000 cases HN in the previous year.

Sep t e mb e r 2 0 0 9

Classifieds

Dal l as Bar A ssoci ati on l Headnotes 19

September

POSITIONS AVAILABLE

AV-rated, Plano-located, family law firm seeks hard-working, ambitious associate with one to three (1-3) years of family law/litigation experience. Salary commensurate with performance. Excellent support staff and diverse established clientele. Contact Lead Office Manager, Jennifer Lynette, at 817-905-3831 or fax resume and cover letter to 972-380-4229. Fifth District Court of Appeals. Parttime research attorney. Salary: $27,500 Closing Date: When Filled. Assists in the preparation of opinions, orders and judgments. Requires superior academic credentials, excellent analytical and research skills; proven writing ability. Licensed Texas attorney with minimum of four years of legal experience, or two years of legal experience with significant, proven appellate expertise. State of Texas job application required. Send application with law school transcript and legal writing sample to: Gayle Humpa, Business Administrator, 600 Commerce, Suite 200, Dallas, TX 75202. Please call for reasonable work place accommodations. EOE/AA.

POSITION WANTED

Part or full-time hire. Recently relocated attorney with 3+ years commercial real estate and corporate experience seeking new position. Previous experience includes negotiation, document preparation and coordination of closings involving several major Austin retail centers. E-mail kazzye01@gmail. com or call 512-653-6215. Recently relocated attorney seeking opportunity. Ten-year attorney with business, corporation, contract and real estate transaction/development experience seeking overflow work or employment relationship with the right party. Experienced in turnaround management. Interested in health care. Excellent drafting credentials. Moot Court; Order of the Barrister; Member College

of the State Bar of Texas. E-mail to memilleratty@yahoo.com or call 214548-7927.

OFFICE SPACE

staff space available. Approximately 850 square feet, second level. Full amenities. For further information, please contact Jennifer at 972-380-4222.

High-rise views at low-rise rates. Panoramic views from 63rd floor. Class A downtown space close to courthouse, AV-rated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Two offices available. One office has a very nice secretarial station. Negotiable. Call Kay 214-761-6463.

Two offices available for rent in our historic West End building with a secretarial area available as well. Each of the two offices rent at $650 each and the secretarial area would be an additional $500. The two offices can rent individually or as a package. Contact Craig Miley at 214-692-8800 or craig@ mileybrown.com.

Northpark/Central Expwy -- Law firm has two large partner offices and one smaller office for sublease in Class A building. Best views in town overlooking downtown and Park Cities. Great location with excellent finish out, elevator exposure and easy access to/from Central Expwy. Includes use of large conference room, secretarial space and kitchen. High-speed DSL, telephones, copier/scanner and on-site storage also available. Call 214-292-4202.

Plano Class A office space in Legacy Bank Plaza. Access to conference rooms, library, kitchen, computer network, phone service, copier. Garage parking. Executive offices and support staff space available. E-mail jody. johnson@aj-familylaw.com (972-6084300).

Office space near Victory and West End. 501 Elm Place building has exposed wood beams and original brick walls. The seven-story atrium allows for natural light. Located across from the Records Building and the Sixth Floor Museum, the DART rail line runs directly behind the building on Pacific Ave. Take clients to eat dinner at Morton’s located in the basement or to eat lunch in the West End Historic District which is within walking distance. Remodeled “ready to move in” offices are available and ready for you. Sizes available: 626 sq. ft., 1,097 sq. ft., 1,414 sq. ft., 1,552 sq. ft., 1,633 sq. ft., 3,679 sq. ft., 5,107 sq. ft. Call Scott Ehley for information at 972-241-3545 or e-mail at sehley@international-capital.com Mention the ad and receive a moving allowance! Plano office space. Easily accessible to George Bush and Dallas Tollway. Two executive offices with plenty of support

DVAP’s Finest Mandy Childs

Mandy Childs, a commercial litigation associate with Jones Day, served as her firm’s first LendA-Lawyer at the Dallas Volunteer Attorney Program in 2008. In that capacity, she worked full-time for DVAP for three months, taking on 27 cases at various stages of litigation, including pleading, discovery management, dispositive motion practice, settlement negotiation and mediation, trial preparation and trial. Regularly appearing in state court on behalf of her pro bono clients, one of Mandy’s proudest moments with DVAP has been helping reunite a mother with her kidnapped child. Her involvement with DVAP includes staffing the South Dallas, prove-up and wills clinics. Additionally, she is a founding member of her firm’s Associate Pro Bono Committee, which partners with pro bono service providers to help staff emergency pro bono cases. Thank you for all you do, Mandy!

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x3316.

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

Downtown Dallas. Class A space in downtown law firm. Up to three adjoining window and two interior office spaces, two secretarial stations. Various parking options. One block from DART station. Includes use of conference rooms, copy/mail room and kitchen. Great views over Thanksgiving Plaza. New space (built 2007) with attractive contemporary design. Call Donna (214-243-1406) or e-mail at ds@coxtriallaw.com.

North Dallas (Galleria Area) law firm has 3 offices with cubicles for sublease. Free parking; easy access; conference rooms; break room/kitchen; phone; copier; postage; fax. Call 214-210-5940 for information. Walnut Glen Tower (Walnut Hill/Central Expwy) Office: Spacious office in relaxed, yet professional 3-lawyer environment, including secretarial station, conference room, kitchen, copier, telephone system, DSL line, garage parking, penthouse view and other amenities. Call 214-750-1600 for details. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. One office (approx. 13.5 x 13.5) with built-in mahogany secretarial carrel (located in outer office area). Access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available. Please call Kristi at 972-934-4100.

SERVICES

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

Classified Advertising – 2009 Rates & Deadlines Headnotes is mailed monthly to approximately 10,000 attorneys in the Dallas area, and is ideal for announcing available office space, job openings, items for sale, services, etc. DBA Member Rates: 40 words or less $80; 41-60 words; $112; 61-100 words $140. Non-Member Rates: 40 words or less $128; 41-60 words; $160; 61-100 words $190. Web Page Rates: Classified ads which run in Headnotes can also be posted on the DBA Web site for an additional fee of $40 for a 30-day period, or $60 for non-members. Web-only ads are also available. Ads are posted at www.DallasBar.org/members/classifieds.asp. Deadlines: Ad text and payments are due on the 10th of the month prior to the issue date. For instance, ads for the October 2009 issue of HEADNOTES are due September 10. Payment must be made at time ad is submitted. Mail items to Judi Smalling c/o Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. For additional information: Request rate card and details from JSmalling@ dallasbar.org.

20 H e a d n o t e s l D a l l a s B a r A ss ociationâ&#x20AC;

Septem ber 2009