THL_JanFeb20

When and Why to Force Responses to Discovery Objections To the Victor Belong the Spoils? Turnover Receivership as a Post-Judgment Remedy Online Mediation in Personal Injury Cases PI on Appeal: Overview and the Shifting Trends The Eggshell Plaintiff Rule: Opposing Perspectives

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THE HOUSTON

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Volume 57 – Number 4

Personal Injury Law

January/February 2020

Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Adair Myers Graves Stevenson PLLC Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Campbell & Riggs, PC Carter Morris, LLP Christian Smith & Jewell LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP Crinion Davis Richardson & Langley LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Gibson, Dunn & Crutcher LLP Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Hall Maines Lugrin, P.C. Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Husch Blackwell LLP Irelan McDaniel, PLLC

Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Kroger Burrus Nelson Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Nathan Sommers Jacobs PC Pagel Davis & Hill PC Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson-Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP

Smith Murdaugh Little & Bonham LLP Spencer Fane LLP Sponsel Miller Greenberg PLLC Sprott Newsom Quattlebaum & Messenger Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys AAdams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP Blank Rome LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP

Firms of 50-99 Attorneys Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Occidental Petroleum Corporation Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals

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contents January/Febrary 2020

Volume 57 Number 4

10

14

FEATURES and Why to Force 10 When Responses to Discovery Objections

By April Strahan

the Victor Belong the Spoils?

14 ToTurnover Receivership as a Post-Judgment Remedy

By Shawn M. Grady

Mediation in Personal 18 Online Injury Cases

By Heather McFarlane

18

22

on Appeal: 22 PIOverview and the Shifting Trends

By Kent Rutter and Natasha Breaux

Eggshell Plaintiff Rule: 26 The Opposing Perspectives

By Troy M. Moore (Plaintiff Perspective) and Rebecca A. Moore (Defense Perspective)

The Houston Lawyer

26

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.

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contents January/Febrary 2020

Volume 57 Number 4

32

34

departments Message 6 President’s Become a Better Trial Lawyer:

Be Prepared

By Benny Agosto, Jr. the Editor 8 From Doing the Lord’s Work

By Taunya Painter

THE RECORD 32 OFF Professor Lauren Simpson:

Advocate for Gardens that Sustain the Web of Life

By Liz Furlow

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37

Profile in professionalism 34 ATravis Torrence

Shell Oil Company, Global Litigation Bankruptcy & Credit Team Lead

Spotlight 36 committee Get On Board Project TRAIN

By Trey Holm and Hon. Jeff Work

SECTION Spotlight 37 Commercial & Consumer Law

Section: Programming Encompasses Many Practice Areas

By Stephanie Eberhardt

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TRENDS 38 LEGAL Program Gives Civil Litigation

Associates Valuable Courtroom Experience

By Dane Schiller

Klocke v. Watson: Fifth Circuit Denies the TCPA’s Applicability in Federal Court Diversity Cases

By Liz Furlow

Banning Ban the Box Enforcement Guidance in the Fifth Circuit

The Houston Lawyer

By Natalie DeLuca

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January/February 2020

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ReviewS 42 Media The Law and Liability of Small

Aircraft

Reviewed by Anietie Akpan

Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law Reviewed by Tim McInturf

Confessions of an Innocent Man Reviewed by Tara Shockley

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Celebrate 150 years of excellence.

HBA Annual Dinner 150th Anniversary Gala Thursday, May 14, 2020 6:00 p.m. cocktails, 7:00 p.m. dinner The Corinthian

Keynote address by former Secretary of State James Baker Live performance by

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president’s message

By Benny Agosto, Jr. Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner

Become a Better Trial Lawyer:

I

Be Prepared

The Houston Lawyer

n this edition of The Houston Lawyer, our focus is on litigation. To be successful in litigation one must become a good trial lawyer. That encompasses a lot of different areas of the law; however, one rule that will never change is the fact that success will never be achieved without preparation.

In her recent President’s Letter, ABA President Judy Perry Martinez reminds us that, “Access to justice remains a fundamental tenant of the rule of law. Without it, people cannot fully protect their rights, liberty, and property.” There is no question that what we do as lawyers really matters.

In today’s legal environment, there appears to be fewer and fewer opportunities for lawyers to go to trial. There are, of course, arbitration agreements that have become more and more popular. In addition, mediation, another method of alternative dispute resolution, serves all litigants in resolving their disputes. But as a trial lawyer myself and a partner at the oldest personal injury law firm in Texas, we instill in our lawyers the undeniable truth of trial work: if you prepare to settle, you will be trying the case; if you prepare to go to trial, you will likely settle.

The question that many law firms ask themselves about trial is, how do we get our young lawyers ready and experienced in trial if there are less opportunities to go to the courthouse? Trial means trial and error. There is no better way to learn how to become a better trial lawyer than by actually going to trial.

The HBA can help. One great opportunity to obtain trial experience is through the Houston Lawyer Referral Service. By joining HLRS, attorneys can get referrals that may often lead to trial experience. The same opportunities are available through the Houston Volunteer Lawyers, where you can volunteer to take on a pro bono case that may give you trial experience.

Because the HBA enjoys a great relationship with the Harris County judiciary, many judges that have pro se litigants before them will allow HBA lawyers to take on those cases pro bono and proceed to trial. My firm has used this opportunity to allow our younger lawyers to gain valuable trial experience.

Of course, without preparation and dedication to our legal system, none of this can be accomplished. So again I say, preparation is key!

Many articles have been written to teach us how to prepare 6

January/February 2020

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for trial. I encourage you to research some of those that have been published in The Houston Lawyer. Some of my favorite tools to properly educate our attorneys for trial preparation are focus groups and mock trials. There are many resources that will assist you with this, but I strongly suggest the use of jury consultants. Time and time again, as I prepare for big trials, the use of jury consultants and focus groups allow our team to be prepared for the many issues that they could come up against during trial. Ultimately, the best evaluation of the case can be reached through these efforts.

Last, let’s not forget the great opportunity (and duty) we have as lawyers to promote the importance of jury service. We all know and understand that through jury service, justice can be obtained. In an effort to increase engagement and instill a sense of responsibility and interest regarding responding to a jury summons, former HBA President and current State Bar of Texas President, Randy Sorrels, created the HBA Jury Service Program in 2005, with a focus on the areas of Houston that have historically low participation in jury service. This year marks the 15th anniversary of the HBA program.

The Jury Service Program is geared toward high school seniors and is structured around an interactive experience designed to engage students in the importance of juries, the need for active community engagement, what to expect during the jury selection process, and what serving on a jury is actually like.

An attorney or judge visits local high schools to talk to seniors, many of whom will soon be eligible for jury service. They use PowerPoints and other interactive materials to teach students about the history of juries, the importance of this institution in our justice system and democracy, and the relevance of doing their part to ensure that everyone has a jury of their peers.

In the 2018-2019 bar year, the Importance of Jury Service program reached over 3,819 high school seniors, and in the 20192020 bar year so far, we have reached 2,126 high school seniors.

If you need trial experience, or if you want to help younger attorneys in your firm gain experience, take a look at how HBA programs can help you be prepared. Visit www.hba.org for more information on our programs.

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January/February 2020

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from the editor

By Taunya Painter Painter Law Firm PLLC

Associate Editors

Anietie Akpan METRO

Anna M. Archer U.S. District Court

Kimberly Chojnacki Baker Donelson

The Houston Lawyer

Trey Holm Killeen & Stern, PC

Koby Wilbanks Murrah & Killough

8

I

Doing the Lord’s Work

n 2017, we started reading through the Bible annually as a family. As our kids now range from ages nine to 14, they have become quite engaged and opinionated. Of course, having parents that are attorneys, they are often prone to debate as well, and just this year, one of them announced that God must be pro-plaintiff. Long before Donoghue and Palsgraf, the Old Testament laid out the rules for duty owed and foreseeable harm. It started with God telling Moses, “Now these are the judgments which thou shalt set before them [the Israelites],” then proceeds to outline the damages for all kind of intentional and negligent torts, including the recoverable damages for harm caused by someone digging a pit and not covering it (Exodus 21:33-34).

While I would not dare to venture which side has the moral high ground, I do have complete faith in a system that lets both sides work it out. So when HBA President Benny Agosto, Jr., suggested an issue on personal injury law, I was excited for THL Editorial Board to have the opportunity to give both sides some substantive topics that could be useful to a large portion of the Houston Bar that does either PI work or insurance defense.

Brooksie Boutet, at Shipley Snell Montgomery LLP, and Travis Armstrong, at Sheehy, Ware & Pappas, P.C., led the effort as the Guest Editors of this issue on personal injury law. I thank them both for their hard work and the excellent outcome of the substantive articles.

April Strahan explores some “when, why, and how” issues about discovery. She challenges attorneys to get out of the ruts of using cut-and-paste requests and raising objections to stall for time. Starting the discovery on the right foot and following court procedures will not only help your relationship with opposing counsel, it will help your client’s case, and she outlines how.

January/February 2020

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We were especially excited to see a 360-view of the “Eggshell Plaintiff Rule,” with Troy M. Moore presenting the plaintiff perspective to collect damages regardless of pre-existing conditions, and Rebecca A. Moore addressing the defense view to exclude the claims. Troy arms plaintiff lawyers with the relevant case law, and gives tips along the way. Rebecca does a thorough job of outlining potential weak points in a plaintiff’s case.

There could not be a more relevant and timely topic about mediation than what Heather McFarlane has provided – online mediation. McFarlane has 20 years of experience as a mediator and completed Harvard Law School’s program on negotiation. She incorporates her knowledge of both to share how online mediation works and in what type of cases it can be particularly beneficial in terms of time, cost, and recovery.

If the policy limits are not enough to cover a potential judgment, plaintiff lawyers should consider judgement collection options early in the litigation process. Shawn M. Grady advises plaintiff’s counsel to obtain collection advice well before judgment.

Especially since Texas is considered a debtor haven, Grady discusses some options to lock down an adversary’s assets through different remedies, exploring in detail the steps for what he calls the most powerful tool for collection, turnover receivership.

Attorneys that have practiced in Houston for a while know to look forward to the release of the Haynes and Boone, L.L.P. exhaustive report on reversals in the Texas Courts of Appeals. Kent Rutter and Natasha Breaux are the authors. While their full analysis will be printed as a law review, they pulled out 1,690 cases that are PI and consumer related and included them in this shorter article you will want to keep to plan your trial and potential appeal strategy.

The trends, and specifically changes to trends, are particularly useful.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Past President

Benny Agosto, Jr.

Diana Gomez

Bill Kroger

Jennifer A. Hasley

Chris Popov

Warren W. Harris

Second Vice President

David Harrell

DIRECTORS (2018-2020)

Greg Moore Mitch Reid

Collin Cox Hon. Erin Lunceford

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We specialize in representing disabled workers and veterans who have been denied their disability benefits. We fight to overturn claim denials for:

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Call our office today to discuss partnering on any of these claims. Referral fees are paid in appropriate cases.

Associate Editors

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Travis Armstrong Brooksie Bonvillain Boutet James Clarke Elizabeth Furlow Al Harrison Preston Hutson Ryan Kinder Hon. Scott Link Kate McConnico Carly Milner Emily Mott Stephanie Ng Francesca Perkins Austin Tara Taheri Joe Villarreal

Anna Archer Trey Holm

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Stephen Barnes Natasha Breaux Heath DeJean Elizabeth Han Matthew Heberlein Jonathan Jabcuga Kristen Lee David Lopez Timothy McInturf Avi Moshenberg George Murr Andrew Pearce Timothy Riley Paul Van Slyke

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By April Strahan

When and Why to Force Responses to Discovery Objections

L

awyers often overcommit themselves, stretch themselves too thin, and wearily whittle away at their never-ending todo lists. So, the temptation is strong to object to discovery requests and conserve the time it would otherwise take to investigate and provide substantive responses. Both sides of the “v.” face daily challenges in managing tasks and deadlines, and both sides sometimes use the “objections-instead-ofresponses” tactic just so they can move to the next task. But this tactic is at least one root cause of our ever-expanding task lists, as well as the plague of discovery disputes that infects virtually every courthouse today.

We all just need to stop it. Stop ask-

ing for extensions only to serve nothing more than objections. Stop sending the same requests you used in your last case without tailoring it to your current case.

And stop lodging objections that don’t apply or which you haven’t adequately explained. “That’s how I’ve done it for years” is not a good reason to keep doing it, and courts are beginning to push back on lawyers who do.

Still, lawyers often insist on a “bargaining” approach to discovery in which initial responses are simply treated as a “first offer” that leads to a lengthy series of negotiations and motion practice.1 So, when you get a batch of responses that are little more than objections, run through this list before filing a generic motion to compel everything. Maybe you ultimately will try to compel it all.

But think through at least these considerations before you do: (1) the evidence you need (versus the evidence you want), (2) the objections at issue, (3) the judge’s discovery dispute procedures, (4) the case posture, and (5) your history with opposing counsel.

What Did You Ask For (and Why Does it Matter)?

It goes without saying that discovery requests should be specific to your case and appropriately tailored to seek only discoverable information.2 But just as the pressures of an active practice can tempt lawyers to lodge an objection rather than take time to find the answer, those same pressures also tempt lawyers to reuse discovery requests from past cases without taking the time to tailor those requests to the current case.

So, the first thing you should do is take an honest look at each one of the requests you sent. Is it appropriate for this case? Is it sufficiently specific?

Will it likely result in discovery of relevant evidence? If not, then think about whether you really want to argue over the objections to that request. And if a request is not specific enough or needs to be amended to better suit the current case, then consider offering to narrow

its scope or otherwise limit it in some meaningful way.

The simplest way to evaluate whether a request is appropriate is to practice how you will explain to the judge what evidence a complete response would generate and how you would use that evidence to support an element of your client’s claim. If you cannot give the judge an example of responsive evidence and explain how the jury or factfinder would use that evidence to answer a question at the end of the case, then think long and hard before complaining about the objections. But if you can easily provide an explanation, then you should consider asking the judge to overrule this objection.

How Bad Are the Objections?

Once you are satisfied that your requests are appropriate and have offered to limit requests as needed, the next step is to thoroughly review the objections and identify what is inappropriate.

While many more inappropriate objections exist, the following examples represent improper objections and tactics that frequently appear in initial responses.

• “General” Objections/Preliminary Statements: Neither the Federal nor the Texas Rules of Civil Procedure allow a party to rely on a preliminary statement or general objections.3 General objections are typically made once at the beginning of a set of responses and purport to apply to requests “to the extent” they are overly broad, unduly burdensome, irrelevant or not reasonably calculated to lead to the discovery of admissible evidence, vague, harassing, duplicative, or privileged. But these general objections are simply not valid in federal or Texas state courts.

tion) “subject to and without waivThe Rules make clear that a party ing” those objections.6 is to lodge objections and respond to reFederal courts consisquests based on the tently chastise counsel information available for this tactic: “[T]he We all just need to stop practice of responding at the time of the response.5 If the facts it. Stop asking for ex- to interrogatories and later change, then the tensions only to serve documents requests ‘subject to’ and/or party must amend nothing more than ‘without waiving’ or supplement their objections. Stop objections is ‘maniobjections and responses. But no provisending the same festly confusing (at sion in the Federal or requests you used best) and misleading Texas Rules of Civil in your last case with- (at worse), and has no basis at all in the Procedure allows a out tailoring it to your Federal Rules of Civil party to make procurrent case. And stop Procedure.’”7 Along the phylactic objections. lodging objections that same lines, a party who • “Subject to and don’t apply or which objects to only part of Without Waiva request must respond you haven’t adequately to the remainder of ing” Responses: A explained.” the request that is not party may not assert objections and then objectionable.8 produce information (or promise to produce informa• Unsupported Broad and Burden-

‘‘

• Prophylactic Objections: Similarly, neither federal nor Texas law allows a party to assert objections “just in case” they might apply.4 thehoustonlawyer.com

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some Objections: Without explanation and evidence, objections that a request is “overly broad” and “unduly burdensome” are meaningless boilerplate. Even if the request seems obviously “overly broad” and “unduly burdensome,” the Federal and Texas Rules of Civil Procedure still require the resisting party to explain why.

If responding to the request would require an unreasonable amount of time or money as compared against the reasonable needs of the case (proportionality), then the response must include specific, persuasive facts that explain why, preferably in an affidavit.9 If the response to your request fails to include this information, then point out to opposing counsel that they must comply with this obligation.10 • Failure to File a Proper and Timely Motion for Protective Order: If a party seeks to avoid responding and, instead, requests protection from responding to discovery requests based on claims of undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, then that party must file a motion for protective order—an objection is not enough.11 Importantly, a party seeking protection must support its request with evidence of a particular, specific, and demonstrable injury that justifies a protective order—the party may not simply make conclusory allegations.12 • Failure to Supply a Complete Privilege Log: If the responses assert privileges, was a privilege log provided? This is one of the most frequently overlooked (and incorrectly completed) discovery obligations. Be sure to follow up to make sure a log is provided when required and that it is complete and correct, and then review the log for any documents that do not appear to be truly privileged.13 12

January/February 2020

What Does the Court Require in Discovery Disputes?

One of the most embarrassing moments in a lawyer’s life comes when a judge asks whether that lawyer bothered to look at the court’s procedures. Given the frequency of discovery disputes, many courts have developed very specific requirements for handling them. And a lawyer’s failure to find and follow those procedures all but guarantees a loss— even if the objection was particularly poorly made. Counsel should also meaningfully follow the court’s procedures. If the court requires an in-person conference, then meet in person. If the court requires a short letter explaining the dispute, then send a short letter—not a 10-page assault on opposing counsel. If they have told us once, they have told us 1,000 times: judges hate discovery disputes. Do not make things even worse by complaining about opposing counsel’s behavior if you have not identified and followed the Rules and the court’s procedures yourself.

How Long Do You Have Left to Work This Out? Consider the posture of the case. Is it early in the discovery process or are you close to trial? How long does it take to get a hearing? Has the court already heard other motions to compel in the case? If so, what did you learn about the judge’s approach to that motion? Would the testimony of a particular witness provide context or persuasive support for your need for the information? If so, then do you have time to get that testimony before you have to file a motion to compel?

Always think strategically about timing in discovery disputes. For example, after you confer with opposing counsel and reach an agreement on amended objections and responses, it is critical to include a deadline for your receipt of those amended responses. Do not be dissuaded by a comment that you are insisting on an “arbitrary” deadline. The actual deadline was when their initial responses were due. The Rules require you

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to meet and confer with opposing counsel, but they do not require you to give them an unreasonable amount of time to comply with discovery obligations that existed in the first place. So look at the other deadlines in your case, and include a deadline for the amended responses that will allow you enough time to file a motion to compel if the responses still do not comply with the Rules.

What Is Your History With Opposing Counsel?

If you have handled other cases with the opposing counsel, consider that relationship. Sometimes a frank phone call can work through the issues. Sometimes you can discover what the underlying issues truly are. You may learn that opposing counsel agrees that a particular objection is inappropriate, but it is the client who refuses to respond without a court order requiring them to do so.

In that instance, it may be helpful to remind opposing counsel that a Texas lawyer’s obligations include a promise to “endeavor to achieve [a] client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible,” but “[a] client has no right to instruct [a lawyer] to refuse reasonable requests made by other counsel,” and a lawyer must advise a client “that we will not pursue tactics which are intended primarily for delay” and “will not pursue any course of action which is without merit.”14 On the federal side, cite Rule 26(g) (1)(B), which makes clear counsel’s certification when signing discovery objections and responses: they have made a reasonable inquiry and, to the best of their knowledge, the responses and objections are consistent with the Rules, warranted by existing law, and not meant for any improper purpose, among other certifications.

Some lawyers continue to treat boilerplate objections as an appropriate first response to discovery requests, choosing to sit back and wait for opposing counsel to complain. This approach is

a delay tactic that every court agrees is wrong.

Appropriate objections certainly have their place. But objections should not be a first line of defense. Countless cases say so. Common sense says so. Let’s all just answer the questions, folks.

April Strahan is of counsel to The Ammons Law Firm and handles complex plaintiff’s personal injury and product liability cases across the country.

Endnotes

1. Robert K. Wise, Ending Evasive Responses to Written Discovery: A Guide for Properly Responding (and Objecting) to Interrogatories and Document Requests Under the Texas Discovery Rules, 65 BAYLOR L. REV. 510, 512–13 (Spring 2013).

2. For comprehensive guides to drafting proper discovery responses in Texas cases, see Harper v. City of Dallas, No. 3:14-CV-2647-M, 2017 WL 3674830 (N.D. Tex. Aug. 25, 2017); Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014); Wise, supra; Hon. X. Rodriguez & J.W. Christian, Making A Plan: Select Discovery Issues That Are Important to the Practitioner, available at https://www.texasbar. com/AM/Template.cfm?Section=articles&Template=/ CM/HTMLDisplay.cfm&ContentID=44485 (last visited Dec. 18, 2019).

3. See, e.g., Heller, 303 F.R.D. at 483; In re Park Cities Bank, 409 S.W.3d 859, 878 (Tex. App.—Tyler 2013, no pet.).

4. In re Park Cities Bank, 409 S.W.3d at 878 (citing Tex. R. Civ. P. 193.2(c), (e)); Heller, 303 F.R.D. at 484 (quoting Anderson v. Caldwell Cty. Sheriff’s Office, No. 1:09cv423, 2011 WL 2414140, at *3 (W.D.N.C. June 10, 2011)) (“[T] here is no provision in the Federal Rules that allows a party to assert objections simply to preserve them.”).

5. See Tex. R. Civ. P. 193.1, 193.2(c)–(d) (“A party may object to written discovery only if a good faith factual and legal basis for the objection exists at the time the objection is made. An objection or response to written discovery may be amended or supplemented to state an objection or basis that, at the time the objection or response initially was made, either was inapplicable or was unknown after reasonable inquiry.”); see also Fed. R. Civ. P. 26(e).

6. See Tex. R. Civ. P. 193.2(a) (requiring the responding party to “state... the extent to which the party is refusing to comply with the request”).

7. Heller, 303 F.R.D. at 486–87 (quoting Sprint Commc’ns Co., L.P. v. Comcast Cable Commc’ns, LLC, No. 11-2684JWL, 2014 WL 545544, at *2 (D. Kan. Feb. 11, 2014)).

8. Heller, 303 F.R.D. at 489; Tex. R. Civ. P. 193.2(b) (“A party must comply with as much of the request to which the party has made no objection unless it is unreasonable under the circumstances to do so before obtaining a ruling on the objection.”).

9. Heller, 303 F.R.D. at 488 (“If a discovery request is overbroad, the responding party must, to comply with Rule 33 or Rule 34, explain the extent to which it is overbroad and answer or respond to the extent that it is not—and explain the scope of what the responding party is answering or responding to.”); In re Alford Chevrolet–Geo, 997 S.W.2d 173, 181 (Tex. 1999) (orig. proceeding).

10. See Tex. R. Civ. P. 196.2(b).

11. See Tex. R. Civ. P. 192.6.

12. In re Alford Chevrolet–Geo, 997 S.W.2d at 181.

13. See Tex. R. Civ. P. 193.3 (setting forth the requirements when withholding privileged information or material).

14. Texas Lawyer’s Creed (Nov. 7, 1989), available at https:// www.legalethicstexas.com/Ethics-Resources/Rules/ Texas-Lawyer-s-Creed/Texas-Lawyer-s-Creed (emphasis added).

DAMAGES

Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations

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713-513-7113 HOUSTON

www.thomasroneyllc.com

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January/February 2020

13

T To the Victor

By Shawn M. Grady

Belong the Spoils?

Turnover Receivership as a PostJudgment Remedy

o the victor belong the spoils, so the saying goes. Though under Texas civil law system, that is not always the case. In many cases, if a litigant is forced to take a case to judgment, the battle may be won, but the war to recover assets has just begun. Texas is a notorious “debtor haven” and has been since before its birth as a state.1 Texas has a number of statutes that effectively protect debtors, and there remains a judicial culture that sympathizes with debtors.

A prudent litigant should obtain collection advice well before judgment. Depending on the situation, claimants may be able to lock down an adversary’s assets through pre-judgment remedies and attach real property or freeze bank accounts. In addition, claimants can conduct discovery in the case-in-chief useful to collection, such as banking habits, the identity of key vendors, lenders, accountants, etc. However, in some cases, it is simply not possible to lock down assets or obtain valuable financial information pre-judgment — and the chase for assets begins post-judgment.

Immediately upon obtaining a judgment, there are several post-judgment remedies available to the judgment creditor, including garnishment of bank accounts, turnover relief, and perhaps the most powerful tool, turnover receivership.2 This article deals solely with turnover receivership.

Brief History In 1979, the Texas Legislature enacted a statute, commonly known as the “Turnover Statute,” which is a procedural device intended to help a judgment creditor collect its judgment.3 The Turnover Statute provided creditors with a procedure to collect intangibles, such as accounts receivables and the debtor’s interest in claims, which were easily concealed prior to the enactment of this statute.

Among the procedural devices offered by the Turnover Statute, perhaps the most powerful tool was the authority granted to the court to appoint a receiver.

and flexibility than judgment creditors What is a turnover receivership? to discover bank accounts, and freeze The Turnover Statute authorizes a court them, to more effectively and efficiently to appoint a receiver to take possession put pressure on most debtors. of the debtor’s non-exempt property, Obtain information from third parsell it, and pay the proceeds to the judg4 ties: Receivers can demand documents ment creditor. This type of receiverfrom third parties, such as customers, ship is for liquidation and should not vendors, landlords, and lenders, to obbe confused with a receiver appointed tain valuable informaunder Chapter 64 of the tion such as current Texas Civil Practices and banking information, Remedies Code.5 A Chapbased on payment reter 64 receiver is appointTo the victor belong cords. ed to manage or preserve Levy on accounts a business or operation the spoils, so the saybefore judgment. ing goes. Though under receivable: Receivers may contact customTo collect, the turnTexas civil law system, ers and demand monover receiver’s powers that is not always the ies owed to the debtor are defined by the order of appointment. Almost case.” be paid to the receiver.

This gives the receiver always, these orders are immense power over drafted by the creditor’s almost any operating business. attorney, or a receiver. In some jurisFile a lawsuit: To collect on claims dictions, there are established receiverheld by the debtor, receivers can file a ship orders, as some judges prefer their lawsuit in the shoes of the debtor. own specific order. To save an extra Search the debtor’s office: Receivers hearing, or written submission, it is a good idea to contact the court clerk for advice, and if possible, to find a recent receivership order the judge has signed.

In Houston state courts, there are hearings on receivership applications almost every week. Justice of the peace courts, however, are less predictable.

The typical receivership order empowers the receiver to take any of the following actions to collect: Levy on bank accounts: Receivers can monitor and levy on the debtor’s bank account(s) at will. Receivers can request balance information and freeze any account by simply delivering notice to the bank,6 and they may do so at multiple banks, if needed. By contrast, a judgment creditor must file a lawsuit to garnish a bank account and serve each bank with a writ, via constable, to freeze any accounts.7 Receivers also have more discovery powers to identify the judgment debtor’s bank, including requests for information under the Texas Finance Code8 and subpoena powers. Overall, receivers have more power

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may enter the premises of a debtor’s business and search for valuable information, especially to find out where the debtor keeps money, including bank information or online depositories such as Paypal, etc.

Capture the mail: To gather valuable information, receivers may capture the debtor’s mail.

Who may serve as receiver?

The Turnover Statute is silent with regard to who may serve as turnover receiver. However, Texas courts have looked to Chapter 64 for guidance as to receivership qualification. Chapter 64 requires that a receiver be a citizen and qualified voter in Texas at the time of appointment and not be a party or person interested in the matter.9 In Houston, the county courts have a roster similar to mediator lists of receivers who the judges appoint on a rotating basis. District court judges may also have preferred receivers. The local justice of the peace courts do not have

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standardized procedures for appointing receivers. Regardless of the court’s practice, counsel may, and should, recommend that the judge appoint a particular receiver. It is obviously important to have a competent and motivated receiver appointed for effective collection.

How much does a receiver cost?

The order appointing the receiver must proscribe the receiver’s fee and expenses. Typically, receivership orders provide a 25% contingency fee to the receiver, which is taxed as costs of court, and is added on top of the judgment debt owed.

In practice, the receiver will take 25% of all proceeds collected, which will be taxed as court costs against the judgment debtor, until the total balance of the judgment debt is paid. The judgment creditor is entitled to recover attorney’s fees incurred to obtain the appointment of the receiver.10 The judgment creditor should expect to pay the receiver’s bond, which is usually nominal.

How do you get a receiver appointed?

To have a receiver appointed, the judgment creditor has the burden to satisfy the elements established by the Turnover Statute, which requires a factual showing that (1) the judgment remains unsatisfied, and (2) the judgment debtor owns non-exempt assets.11 The elements to obtain a turnover order are the same as the elements to have a turnover receiver appointed. It is worth noting that in 2017, the Texas Legislature eased the burden of proof for judgment creditors; previously, evidence was required that the non-exempt assets owned by the judgment debtor were “not readily leviable by ordinary process.”12 Now, regardless of the date when judgment was rendered, judgment creditors need only show evidence of non-exempt assets. Even if the elements are shown, the trial court has discretion whether to appoint a receiver.13 The Turnover Statute does not specify, or restrict, the manner in which evidence may be received, nor does it require that such evidence be in a par16

January/February 2020

ticular form, that it be at any level of particular specificity, or that it reach any level of particular quantum before the court may grant relief.14 In other words, the judgment creditor must present some evidence to the court with its application for turnover receiver, whether affidavit, verification, or evidence already on the record, to prove its elements.15 Notice of the hearing or written submission date, and opportunity for the judgment debtor to be heard, are not required under the Turnover Statute.16 What is the practice in Houston?

Receivership is parochial, or governed by the customs of each jurisdiction. In Houston, it is customary that the judgment creditor set its application for turnover receiver for oral hearing and provide notice to the judgment debtor of the hearing. As is typically the case, justice of the peace court is a bit of a wildcard.

Other Texas state courts may grant receivership applications on ex parte hearings, or by written submission. Moreover, it is not uncommon for some judges to require judgment creditors to have exhausted other remedies, including a writ of execution and writ of garnishment, providing yet another reason to check the judge’s docket for recently granted receivership applications, or speak with the judge’s clerk.

A judgment creditor has some options as to the court in which it files its receivership application because, in addition to the trial court that rendered the judgment, the creditor may bring an independent proceeding in any court of appropriate jurisdiction.17 Is the receiver permitted to collect or take property from third parties?

Unless the receiver files another lawsuit against the third party, the general rule is that there is no turnover of property held by a third party, who is a stranger to the underlying judgment. However, there are some limited exceptions to this rule, which vary depending on the jurisdiction. The most obvious exception

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is money or property held by a bank.

Another example is when a receiver obtains the shares in a corporation owned by the judgment debtor, the receiver can sell the corporation’s property, as long as the creditors of the corporation are not prejudiced.18 In addition, there are Texas cases that hold that turnover may be had against property in the hands of third parties if the judgment debtor controls the property.19 Shawn M. Grady is a collections attorney for suppliers, construction contractors, carriers, healthcare providers, lenders, and other businesses. He is Board Certified in Creditors’ Rights Law by the American Board of Certification (ABC).

Endnotes

1. See Shawn M. Grady, Wanted Dead or Alive: Debtors and Desperados, HOUS. LAW. July/Aug. 2016, at 14.

2. See Childre v. Great Sw. Life Ins. Co., 700 S.W.2d 284, 286-87 (Tex. App.—Dallas 1985, no writ).

3. See Mike Bernstein, Nuts and Bolts of Turnover Receivership, State Bar of Texas CLE: Collections and Creditors’ Rights 1 (2019).

4. See TEX. CIV. PRAC. & REM. CODE § 31.002(b)(3).

5. See TEX. CIV. PRAC. & REM. CODE § 64.001 et seq.

6. See TEX. CIV. PRAC. & REM. CODE § 31.002(g); see also TEX. FIN. CODE § 59.008.

7. See TEX. CIV. PRAC. & REM. CODE § 63.001– 63.008; see also TEX. R. CIV. P. 657–679 (providing procedures governing garnishments).

8. See also TEX. FIN. CODE § 59.006.

9. See TEX. CIV. PRAC. & REM. CODE § 64.021.

10. See TEX. CIV. PRAC. & REM. CODE § 31.002(e).

11. See Hamilton Metals, Inc. v. Glob. Metal Servs., Ltd., No. 14-17-00670-CV, 2019 WL 3792733, at *3–4 (Tex. App.—Houston [14th Dist. August 13, 2019, no pet.).

12. See id. at *3 (citing Act of May 24, 2017, 85th Leg., R.S., ch. 996, § 2, 2017 Tex. Sess. Law Serv. 4026, 4026).

13. See TEX. CIV. PRAC. & REM. CODE § 31.002(b).

14. See Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

15. The Fourteenth Court of Appeals of Texas recently held that an application, which included a verification by the judgment creditor’s counsel that the CEO of the judgment creditor had good faith reason to believe that the judgment debtor owned non-exempt assets that fell within the general categories, was not legally sufficient evidence to satisfy the Turnover Statute. See Hamilton Metals, Inc., 2019 WL 3792733, at *5–6.

16. See Ross v. 3D Tower, Ltd., 824 S.W.2d 270 (Tex. App.—Houston [14th Dist.] 1992, writ denied); see also Cantu v. Seeman, No. 01-09-00545-CV, 2012 WL 1564536, at *4 (Tex. App.—Houston [14th Dist.] May 3, 2012, pet. denied) (mem. op.).

17. See TEX. CIV. PRAC. & REM. CODE § 31.002(a) and (d).

18. See Newman v. Troy, 926 S.W.2d 629 (Tex. App.—Austin 1996, writ denied). It should be noted that LLCs are not treated the same as corporations, as it relates to turnover of property.

19. See Bernstein, supra note 3, at 10–16 (discussing various Texas cases involving this issue).

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January/February 2020

17

By Heather McFarlane

Online Mediation in Personal Injury Cases

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ediation provides parties in a lawsuit the ability to get together, share information through a neutral facilitator, express emotion about the dispute, and brainstorm potential settlement options. The opportunity for people to see each other, and to be together to focus on the case, can be a magical combination and often results in settlement.

When I was an active litigator, I made it my habit to meet with my opposing counsel in person to discuss the case because I found that it reduced the letter writing campaigns and increased cooperation.

Thus, when I first heard about online mediation, I was skeptical. How can a process that depends upon accurate communication (including nonverbal information) possibly work when people are not with each other?1 I also worried about confidentiality: how could the parties feel comfortable that no one was eavesdropping? Finally, I doubted that the participants would give the process their full attention if they were not corralled in a conference room. What would stop the

participants from turning their attention elsewhere? Since becoming certified to mediate online, I have become comfortable that online mediation preserves the process, and, in some cases, provides benefits that the in-person process cannot. While I cannot imagine mediating entirely online, I believe it can bring value to personal injury and other cases.

How it Works – The Mechanics of Online Mediation I use the Zoom.us videoconferencing platform for online mediation. Before the scheduled mediation, all participants take a few minutes to create a free account and download the Zoom app on their desktop, smartphone, or tablet. Access to the internet is required, and if a party is using a desktop computer instead of her smart device, she would need a camera and speaker.

After logging in, the participants arrive in a virtual waiting room. Once everyone has arrived, the mediator places the parties and their lawyers into pre-assigned, private rooms: the online equivalent of having a receptionist usher the parties into their own conference room. All of the members of a particular room can see and hear each other; no telephone is required. Each person can either show their surroundings or choose a background to mask their physical location.

As the mediator, I then send a chat to seek permission to enter the private conference room, which is the online version of knocking on the door to maintain privacy. Once someone enters, everyone can see who is in the room; there is not a way to silently enter or to secretly observe.

When ready, the mediator can move everyone into a joint session, back to caucus, pull out the lawyers or parties only, and any combination of participants, just as people could do in person. The mediator maintains control of assigning each person to a room, thus protecting the confidentiality of the process.

If the parties reach an agreement, the lawyers can work collaboratively on the agreement through a shared screen pro-

cess. Once the agreement is completed, the mediator sends the agreement to all of the participants with the ability to sign with DocuSign. DocuSign does not require the signers to have an account, and everyone immediately gets a secure copy of the fully executed agreement.

Online Mediation Maintains Protection of the Mediation Process Privacy and Confidentiality. By statute, mediation is completely confidential.2 Nothing that the parties discuss during mediation can be used outside the mediation. The mediator cannot be subpoenaed or testify about what happened during mediation. Additionally, anything that the parties discuss with the mediator during a separate caucus (where the parties are separated into different rooms) remains confidential unless and until the person grants the mediator permission to share that information. Online Mediation also protects privacy and confidentiality.

As discussed above, the Zoom platform provides for separate caucus rooms so that attorneys and their clients have privacy when discussing the case, and there is no way to eavesdrop or listen without the participants’ knowledge.

The Zoom platform has a feature that allows for the recording of the proceedings; however, the mediator can turn off this feature when scheduling the mediation. Of course, nothing stops a participant from recording the proceeding independently (such as a screen/audio record or recording on a separate device); however, that can also happen during an in-person mediation. The rules for the mediation in both forums prohibit the recording of the mediation.

Non-Verbal Communication. Because a majority of human communication is non-verbal, conducting a mediation where the parties are not sitting across from one another concerns many people.

Originally, online mediation consisted of chats, texts, emails, and telephone calls.

Without a video component, I agree that non-verbal communication was compromised. With the video conferencing fea-

ture of the Zoom platform, however, non-4 verbal communication remains intact.

The participants can hear intonation and see gestures and body language. The only thing missing in the video conference is the ability to shake hands or otherwise touch one another.

Focus on the Mediation. Mediation provides an opportunity for the participants to carve out time to focus on the dispute and to dedicate their attention on the problem and the potential solutions.

If the parties stay in their home or office, what prevents them from splitting their attention? This issue must be addressed when scheduling the mediation and when signing the agreement to mediate, and it may prevent a particular case from being appropriate for online mediation.

The participants must commit to avoid other calls or interruptions. Even though the participants are not in the same physical location, the video feature exposes anyone who is working on something

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else. Clients and lawyers are in the same private video room and will know when another participant is distracted and not paying attention.

ety event. Allowing parties to participate in a comfortable environment promotes the productive expression of emotion.

Modulated Emotions. In law school, we were taught to think rationally and Benefits of Online Mediation logically. This rational model focused on Convenience. Online Mediation allows reducing or eliminating emotions when all parties to participate from anywhere making a decision. Over the last 25 years, they have access to the internet and a however, neuroscientists have discovered computer, tablet, or smartphone. This that emotions play a key role in decision convenience can help with making, even when we scheduling because no one believe we are being rahas to travel. In personal tional. Emotions form injury cases, this can be the context in which we Online Mediation particularly helpful when a see the world and are allows all parties therefore necessary to plaintiff is severely injured.

The plaintiff does not have to participate make decisions.3 to travel or arrange for a loNo matter what the from anywhere cation that meets the plaindispute is about, it bethey have access to gan with people (after tiff’s physical or medical the internet and a all, corporations can needs, but the other participants can see and hear computer, tablet, or only act through the directly from the plaintiff. smartphone. This people who work there), On the defense side, online their needs, belief sysconvenience can tems, and experiences. mediation may encourhelp with scheduling To have a productive age the out-of-town defendant or insurance adjuster because no one has conversation about how to participate directly in to travel. In personal to resolve a dispute, a the mediation. The convemediator needs to learn injury cases, this can nience also helps convince more about the people be particularly help- involved and what mobusy doctor-defendants in ful when a plaintiff is tivates them to conmedical malpractice cases to mediate because those severely injured.” tinue fighting instead doctors can stay in their of resolving. Failing to office. No one has to fight understand and address traffic. Without the need to travel, the the emotional aspect of the dispute often mediation takes much less time than it ends a mediation in impasse. would if it had been conducted in person.

Specific emotions sway decision makThe convenience also allows a mediaing in predictable ways. For example, tor to end a session and reconvene with feelings of fear often lead people to less disruption to the participants’ schedchoose the safe option and to avoid risk. ules. For example, if the parties decide Anger tends to breed over-confidence that they need further information to (“I’m going to destroy you in court!”), make an informed decision, the mediaand to view events through a lens of intor can end the mediation and reconvene justice (“It’s the principle of the thing!”). knowing that the parties will have an Happiness (not common in mediation!) easier time rescheduling the mediation tends to cause people to make decisions than they would if it were a traditional without taking the time to understand in-person mediation. Some online mediathe consequences of any given decision. tors anticipate breaks and schedule meIn short, online mediation can help peodiations in two-hour increments. ple express and temper strong emotions, Comfort. Mediation can be a high anxiwhich assists in settlement.

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January/February 2020

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Cost Savings. Personal injury lawyers sometimes represent clients who live or work in different counties, states, or even countries. These same lawyers tend to litigate in counties other than where they live and work. Online mediation saves airfare, hotel, and other travel expenses; this leaves more money to use for settlement. Especially in automobile accidents where policy limits restrict the potential gross settlement, the added travel expense directly impacts the amount the plaintiff can hope to recover.

Ease of Information Sharing. The Zoom platform allows each person to share that person’s screen with others.

For example, participants can present a slide show, photographs, video, or other documents relevant to the case. Screen share also allows parties to annotate or collaborate on documents. The best part?

No one has to worry about projectors, screens, other equipment, or forgetting something back at the office. While the parties see the shared screen, they continue to view images of the other participants, which allows the parties to watch each other’s reactions. Unlike an in-person mediation, the participants also see their own image; this helps them monitor their own body language and reaction to the process.

The encrypted platform also provides a “share document” feature that allows any of the participants to securely send documents to any other participant.

Participation. Because of the convenience, the parties can include third parties in the mediation without additional expenses. For example, an expert witness may have critical information, but it might be too expensive to pay the expert’s hourly rate to appear live at the mediation. Allowing that expert to join everyone online greatly reduces the cost of that expert’s participation. Further, if it appears that the ultimate decision-maker is not present, it is easier to involve that person online immediately and for that decision maker to witness what is happening rather than to rely on the summary report of those present.

The Green Factor. The transportation industry accounts for nearly one-quarter of the world-wide carbon emissions, and automobiles account for three-quarters of the total carbon emissions in the transportation industry. As more people and corporations focus on reducing carbon emissions, the ability to save people from traveling to a mediation serves as a motivation for on-line mediation.

Summary Although we may bemoan the shift from communicating in person to communicating online, it is here to stay. Doctors, therapists, and accountants have all begun to offer online visits and consultations, and the future promises even more online services for attorneys and their clients. Online mediation is unlikely to take the place of mediating in person, and it is not appropriate for every case. However, because of its benefits, lawyers should at least consider using online mediation in each of their cases.

Time to redesign your website? contact

leo@quantumsur.com 281.955.2449 ext.1

Heather (Kubiak) McFarlane offers in-person and on-line mediation. She is a full-time mediator with over 20 years of trial experience. She recently obtained advanced mediation training at Harvard Law School’s program on negotiation and is passionate about sharing what she learned to help others.

Endnotes

1. This article does not discuss online mediation conducted with artificial intelligence instead of a mediator.

Those services, such as CyberSettle.com, present different issues than mediating through videoconferencing technology.

2. As an interesting side note, did you know that the Texas Mediation Statute cloaks non-verbal communication in confidentiality? “Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” Tex. Civ. Prac. Rem. Code § 154.053(c).

3. In my study of this topic, I was fascinated to read about the research of Antonio Damasio, a professor of neuroscience psychology at UCLA, who studied patients with injuries that had destroyed the part of the brain that processes emotion. His discovery: without emotion, a person cannot make decisions. To read a summary of this study that is fully presented in his book, Descartes’ Error, go to https://www.thecut.com/2016/06/how-onlyusing-logic-destroyed-a-man.html.

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January/February 2020

21

By Kent Rutter and Natasha Breaux

PI on Appeal:

Overview and the Shifting Trends

A

trial court’s judgment brings finality to one phase of a case, but many litigation attorneys find that they are soon challenged to answer a new series of questions from their client: • Should we aim for a post-judgment settlement?

• Should we roll the dice on appeal?

• How often do the courts of appeals reverse judgments for plaintiffs or defendants in personal injury cases?

• Do the Houston courts of appeals reverse more or less often than other courts?

• Did the 2018 elections have an impact?

This article aims to help attorneys answer client questions like these, using empirical data from the authors’ study of all civil appeals1 decided by the fourteen Texas courts of appeals during the 20182019 court year. The study categorized decisions according to the procedure by which the case was decided and the substance of the claim.2 When the outcome was a reversal,3 the study identified the reason for the reversal. The key findings—with a focus on tort appeals and the Houston courts of appeals—are outlined below.

REVERSALS IN TORT AND DTPA CASES Across Texas, the ground is shifting in appeals of both tort and DTPA cases.

As recently as the 2011-2012 court year, when the plaintiff in a tort or DTPA case prevailed in the trial court and the defendant appealed, the defendant won a reversal half the time. During the 20182019 court year however, the reversal rate plunged to 27%.

On the other side of the equation, the 2018-2019 court year demonstrated that when the defendant prevailed in the trial court and the plaintiff appealed, the chances of reversal were only 17%, down from 25% in the 2011-2012 court year.

In four courts of appeals—the First and Fourteenth Courts in Houston, as well as the courts in Dallas and San

Antonio—the November 2018 elections appear to have impacted the disposition of tort and DTPA appeals. All of the justices on those courts were Republicans until newly elected Democratic majorities took the bench in January 2019.

To obtain an early look at whether the changed makeup of these courts affected outcomes in tort and DTPA cases, the authors compared decisions issued during the last four months of 2018 and the first eight months of 2019. There was a significant shift. When a tort or DTPA plaintiff prevailed in the trial court and the defendant appealed, the reversal rate fell from 39% to 17% after the new Democratic justices took the bench. In appeals by tort and DTPA plaintiffs, the reversal rate rose from 5% to 18%.

The statistics do not show that these four courts are outliers. In fact, this shift generally brought these courts into alignment with trends occurring statewide. Moreover, although these statistics are based on hundreds of appeals, they should be approached with caution as they are based on relatively short time frames. It remains to be seen whether tort and DTPA plaintiffs will continue to enjoy these newly improved odds in the years to come.

REVERSALS FOLLOWING TRIALS AND SUMMARY JUDGMENTS Broadening the focus from tort and DTPA appeals to all types of civil appeals, the reversal rate in all fourteen Texas courts of appeals was 30% during the 2018-2019 court year. In Houston, the reversal rates were similar: 30% in the First Court of Appeals and 31% in the Fourteenth Court of Appeals. Generally, reversal rates across the state were lower than average in appeals from final judgments resulting from jury verdicts, bench trials, and summary judgments.

On the other hand, reversal rates were higher than average in other types of appeals, including appeals from denials of motions to compel arbitration, default judgments, special appearances, and temporary injunctions.

Jury Verdicts The phenomenon of the “vanishing jury trial” has a parallel—the vanishing jury trial appeal. Between the 2001-2002 court year and the 2018-2019 court year, the number of appeals following jury trials across Texas declined by 45%.

When judgments on jury verdicts were appealed, the statewide reversal rate was 26%. In Houston, the reversal rates were significantly higher: 38% in the First Court of Appeals and 39% in the Fourteenth Court of Appeals.

Statewide, when the courts of appeals reversed judgments entered on jury verdicts, they most often did so because the evidence was legally insufficient to support the verdict, or because one of the parties was otherwise entitled to judgment as a matter of law. These reasons accounted for 63% of the reversals. Charge error accounted for 14% of the reversals. Factual insufficiency and “great weight” reasons accounted for 10% of the reversals. Evidentiary rulings did not play a significant role in reversals.

Appeals was close to the statewide rate, with a reversal rate of 21%. The Fourteenth Court of Appeals reversed less often, at a rate of only 13%.

Statewide, the most common reason for reversals following bench trials was that the evidence was legally insufficient to support the judgment, or one of the parties was otherwise entitled to judgment as a matter of law. These reasons accounted for 89% of the reversals. The remaining 11% of reversals were based on errors in procedure. No appeals were reversed based on factual insufficiency or the erroneous admission or exclusion of evidence.

Summary Judgments In contrast to appeals following jury trials and bench trials, summary judgment appeals are on the rise. Between the 2001-2002 court year and the 2018-

Bench Trials Like appeals following jury trials, appeals following bench trials are dwindling. Between the 2001-2002 court year and the 20182019 court year, the number of appeals following bench trials across Texas declined by 45%, just as appeals following jury trials did.

When judgments following bench trials were appealed, the statewide reversal rate was 20%.

The First Court of thehoustonlawyer.com

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2019 court year, the number of summary judgment appeals across Texas increased by 186%.

In these appeals, the statewide reversal rate was 25%. In Houston, the reversal rates were similar: 26% in the First Court of Appeals and 25% in the Fourteenth Court of Appeals. Statewide, summary judgments for tort defendants, employers in employment cases, and insurers in insurance coverage cases were reversed at a significantly lower rate (15%) than summary judgments in all cases combined (26%).

The reason for summary judgments reversal was most often the existence Across Texas, of a fact issue, or, in appeals from nothe ground is evidence summary judgments, the exshifting in appeals istence of some evidence. These reasons of both tort accounted for 50% of the reversals. Erand DTPA rors of law accounted for 42% of the reversals. Procedural errors accounted for cases.” the remaining 7%.

Only 8% of the summary judgment appeals were from pure no-evidence summary judgments. Of those, 43% were in personal injury cases, accounting for 19% of the total summary judgment appeals in personal injury cases. When the summary judgment motion was based solely on no-evidence grounds, the reversal rate was 22%, which is slightly less than the reversal rate of 25% in appeals from traditional or hybrid summary judgments.

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CONCLUSION This article has provided a brief overview focusing on tort appeals and the Houston courts. The authors’ complete study, which will be published in the Houston Law Review this spring,4 will provide further details, as well as data and analysis about other types of appeals and other courts of appeals across Texas.

Kent Rutter is an appellate partner at Haynes and Boone, L.L.P. and is president of the State Bar of Texas Appellate Section.

Natasha Breaux is an appellate associate at Haynes and Boone, L.L.P. and is on the Editorial Board of The Houston Lawyer.

Endnotes

1. To present an accurate picture of reversals, certain types of opinions were excluded before these statistics were calculated. For example, appeals in juvenile cases, although categorized by the Texas courts as civil cases, were excluded because in reality they are quasi-criminal in nature. Also excluded were appeals that were not decided on the merits, such as appeals that were dismissed for want of prosecution and appeals in which an affirmance or reversal was entered at the request of the parties pursuant to settlement. The remaining decisions—1,690 in all—form the basis of the findings presented here.

2. The decisions were categorized according to the procedure and claims that were the focus of the appeal.

Thus, if the focus of the appeal was a partial summary judgment granted on some issues, not the subsequent trial of the remaining issues, the appeal was categorized as a summary judgment appeal. Likewise, if the focus of the appeal was a breach of contract claim, not an ancillary tort claim, the appeal was categorized as a contract appeal.

3. An appeal was classified as an affirmance even if the judgment was modified or reversed in part, if the modification or reversal affected only a small portion of the judgment. For example, an appeal in a suit for damages was classified as an affirmance if the court of appeals left most of the damages undisturbed, and reversed or modified only a relatively small component of the damages or a relatively small award of prejudgment interest, sanctions, or attorney’s fees.

4. Kent Rutter & Natasha Breaux, Reasons for Reversal in the Texas Courts of Appeals, 57 HOUS. L. REV. __ (Spring 2020).

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UPCOMING EVENT

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By Troy M. Moore (Plaintiff Perspective) and Rebecca A. Moore (Defense Perspective)

The Eggshell Plaintiff Rule:

Opposing Perspectives

H

The Plaintiff Perspective f you have negotiated with an insurance company lately, you might have noticed that adjusters do not seem to grasp the thin-skulled plaintiff rule, also known as the eggshell plaintiff doctrine. Many times, when you have a Plaintiff who has any pre-existing condition of the same area (especially issues with the spine), adjusters dismiss claims for substantial injuries and pain after an auto accident.

You commonly hear, “Well he had a bad back anyway.” This often occurs with plaintiffs who have undiagnosed, asymptomatic, degenerative disc disease of the spine, or other spinal conditions.

Generally, these plaintiffs were carrying on with their lives, pain-free, until they were involved in an automobile collision, and then the insurance adjuster tells them their case is not worth anything because they have a pre-existing condition.

It is well settled law in Texas that a tortfeasor takes a plaintiff as he finds him.1 There are five excellent cases that delineate the establishment of the

case law in Texas on this topic. Taking you back to 1889, when Texas had only been a State for 44 years, there was the Driess v. Friederick case.2 In Driess, the plaintiff broke his leg falling through a defective cellar-grating, which was known by the defendant to be defective.

The injuries resulting from the broken leg disabled the plaintiff from being able to perform any vocation. The defendant pleaded that the plaintiff’s leg had previously been broken in the same place, which aggravated the injuries he received through the defendant’s failure to use due care. The defendant thus sought a jury instruction to that effect to lessen the awarded damages.3 Indeed, the evidence showed that the first injury, 16 years prior, had weakened the bone, causing the bone to fracture more easily “than it would have... had not the first fracture occurred.”4 The Court held, in groundbreaking law for Texas, that “[t]he damages which [Plaintiff] was entitled to recover were the damages resulting to himself, conditioned as he was at the time of the injury, and not such damages as he might have been entitled to had his condition been different.”5 After this case, there is a shift in how Texas courts examined proximate cause in relation to foreseeability (or ‘anticipation’ or ‘contemplation’, as some cases refer to it). Everyone has read Palsgraf, right? In 1919, the Texas Commission of Appeals addressed the pre-existing condition issue in Collins v. Pecos & N.T. Ry. Co.6 In Collins, a railroad foreman was poisoned when he handled wet rail ties that were recently soaked in creosote, which is poisonous. Evidence showed that most individuals would experience a burning sensation compared to a sunburn when creosote was applied to the skin. However, the plaintiff in Collins suffered a “constitutional disorder” and/or “systemic poisoning” far different from what most people experienced upon exposure to wet creosote. The Commission of Appeals of Texas reviewed the Court of Civil Appeals holding that overturned a trial jury verdict for the Plaintiff. The

Court of Civil Appeals had addressed considerable force and violence, throwthe issue of “whether an employer would ing the worker against the side of the be charged with negligence in failing to engine and its beams—injuring the warn of such danger, when worker’s back. As it it did not know and could turns out, the plainnot know that a constitutiff, unbeknownst to tional disorder would rehim and the world, had The Collins case sult from such a use—in a latent defect in his other words, was such an was truly a watershed spine called spondy10 injury incidental to the case and proved to lolisthesis. One with wrong done, and was it spondylolisthesis may hold fast to the such as may have reasongo for years withstandtraditions of ing considerable strain, ably been supposed to have entered into the conEnglish common law and then suddenly, for templation of the [Defenthat a tortfeasor takes no assignable reason, dant].”7 After taking up the sustain serious injury his victim as he from a relatively light case on appeal, the Comfinds her.” trauma. In Thompson, mission held that it: the trial defendant aris not, however, essengued that “since the tial to make a negligent defendant is entitled to assume that his act the proximate cause of an injury employees are able-bodied, he could that the particular injurious consenot foresee that the acts, which the jury quences and the precise manner of found to be negligent, would cause any their infliction could reasonably have injury.”11 Rejecting the tortfeasor’s argubeen foreseen. If the consequences follow in unbroken sequence from ment, the court held that “if a latent conthe wrong to the injury without any intervening efficient cause, it is sufficient that if at the time of the negligence the wrongdoer might by the exercise of ordinary care have foreseen that some injury might result from the negligence.8

‘‘

dition plus an injury caused such pain, the injury, and not the latent condition, is the proximate cause.”12 The Thompson case has later been cited as authority by the Texas Supreme Court, so it bears noting this case holds solid precedential authority statewide.13 In another important case, the Supreme Court of Texas took up a mandamus in a case where the plaintiff claimed ordinary mental anguish after suffering physical injuries sustained while using an oven cleaning spray.14 The defendant had convinced the trial court to allow for a compulsory mental examination of plaintiff, claiming that the plaintiff’s mental anguish was pre-existing and may have contributed to the incident with the oven cleaner.

The plaintiff sought a writ of mandamus to prohibit the mental examination requirement. The appellate court denied the mandamus, and the case went up on appeal. The Texas Supreme Court held that, regardless of Ms. Coates’s personal problems at the time of the incident

The Collins case was truly a watershed case and proved to hold fast to the traditions of English common law that a tortfeasor takes his victim as he finds her.

Apparently, the lower court was tempted into finding a lack of proximate cause due to lack of foreseeability or anticipation of the particulars of the individual victim. Collins appears to be the closest Texas ever got to straying from the thinskulled plaintiff rule.

Fast-forward to 1956, when the Court of Civil Appeals of Galveston heard the Thompson v. Quarles case.9 In Thompson, the plaintiff was working on a diesel locomotive engine, and as he was jacking over the engine, a switch engine hooked onto the diesel engine on one end with thehoustonlawyer.com

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with the oven cleaner, she was entitled to recover the damages resulting from the incident “conditioned as [she] was at the time of the injury.”15 The Court further reasoned that the fact that Mrs. Coates had personal problems at the time of her injury does not, in itself, relieve the tortfeasor of liability.16 This case was of great importance in Texas because had the Court not granted this writ of mandamus, every Texas personal injury plaintiff claiming mental anguish after Coates would have been subjected to tortfeasors’ demands for compulsory mental examinations.

The most recent important case is Katy Springs & Manufacturing Inc. v. Favalora.17 The Katy Springs plaintiff, Favalora, fell after being hit in the chest by escaping wire when a bundle of large-gauge wire used to make springs jammed in a payoff reel that was fabricated by Katy Springs. Following this accident, Favalora endured long-term chronic neck pain and numbness in his arm. Favalora had a previous fusion of C4-5 vertebrae after a car accident, and it took him a long time to recover; however, the evidence established that he had in fact recovered, and was able to work out, exercise, teach swim lessons, play volleyball, and engage in heavy lifting at work, all essentially pain free. Repeating previous courts’ holdings that a tortfeasor takes a plaintiff as he finds him, the court fur-

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ries. ther held that if a latent condition does For instance, was there an event afnot cause pain or suffering, but that conter the original accident that aggravated dition plus an injury caused such pain, the claimant’s initial injury or did the then the injury, and not the latent conclaimant fail to treat dition, is the proximate 18 the condition properly cause. prior to the event? Such The eggshell plaintiff questions need to be doctrine is unique in that If there is addressed, and most unforeseeability is the key one thing we Plaintiff’s counsel are element of recovery against the tortfeasor. It is someall have learned opposed to the discovery of such informawhat of an oxymoron to during our years tion. It is important to our legal brains considerof practicing note that an intervening ing how the general Palsgraf foreseeability requirelaw: there are or superseding cause is ment of proximate cause shades of gray an event that happens after the accident comis pounded into our heads and nuances to plained of and causes beginning the first year of all aspects of additional injury to the law school. So, the next time that insurance ada case, leaving claimant or aggravates juster essentially tells you us always with the claimant’s initial injury from the accident. your plaintiff was already arguments to The Texas Supreme broken, and they are not be made.” Court has expressed paying, send him/her these that “proximate cause” five cases. is a legal term with a fixed and long-established legal meanThe Defense Perspective ing.19 The word in the term which neceses, every first-year law student learns about the “eggshell sitates that it be defined so as to convert plaintiff doctrine” in his or her it into language employing words of Torts class, and while my colordinary meaning is the word “proxileague argues this doctrine is mate.”20 “The question always is, Was ironclad, it is not as cut and dry as many there an unbroken connection?... Or was attorneys believe. It is certainly true that there some new and independent cause under Texas personal injury law, indiintervening between the wrong and the viduals who cause injury?”21 “New and independent cause” injury due to their is likewise a term of fixed legal meaning negligence are rethat must be defined.22 Again, it is not the sponsible for their word “cause” that necessitates a definivictim’s injuries— tion of the term; it is the words “new and even those that independent.”23 In other words, there are are unexpected or two kinds of causes to be considered by unforeseen. Howthe jury when there is evidence that negever, those defendligent acts other than the alleged negliing such claims gent acts of the parties were responsible should take into for the injury. It is necessary that they consideration be translated by definition into words of various scenarios such ordinary meaning, and so differenin which the negtiated, as to enable the jury to properly ligent party may pass upon the issues.24 not be wholly liThis is because the person responsible able for the injufor the event complained of is not liable

‘‘

Y

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for the injuries caused by the intervening or superseding cause because the injuries would not have been foreseeable.

Both arguments above come to light in Allstate v. Jordan.25 In this case, Jordan had several pre-existing conditions. In 1983, she had surgery on the lumbar area of her spine, and she was depressed, experienced anxiety, had chronic pain, and headaches. Prior to the August 5, 2010 accident, Jordan had scheduled an appointment for September 13, 2010, at the Scott & White Clinic to be treated for her depression. When the accident happened on August 5, Jordan testified that she felt a burning sensation in her neck upon impact but declined medical treatment at the scene. Following the accident, she was driven to Scott & White to see her family doctor where she complained of pain in her neck and shoulders and minimal pain across her chest.

The treating physician noted Jordan had normal range of motion in her neck, no head injury or injury to her arms, and

“no significant distress,� and concluded that she was suffering from whiplash.26 On August 31, 2010, it was noted that, although Jordan had some pain on turning her head to the right, she had good range of motion and no weakness in her upper extremities and was instructed to continue with chiropractic treatment, antiinflammatory medication, and muscle relaxers, although there was testimony she was not taking the prescribed medication.27 On September 14, 2010, Jordan was in her garden when she tripped over a brick and landed on another brick, breaking her nose in three places. Jordan claimed that she fell because she was dizzy from the medication that had been prescribed for the injuries she sustained as a result of the accident. Between the date of the accident and the time of trial, Jordan visited several doctors and received medical treatment for a variety of symptoms.

Essentially, her medical treatment after the accident revealed that she suffered a

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29

whiplash injury and was improving with good range of motion and no weakness in her upper extremities prior to her intervening fall in her garden. After her fall, she continued to report problems similar to those received in the accident, namely, chronic neck pain, headaches, memory problems, dizziness, problems sleeping, depression, and numbness and tingling in her arms and fingers. At times, the records indicated that her conditions were improving, and at other times, they indicated that her conditions were worsening. Jordan related all of the problems to the accident, and Allstate attributed the majority of the problems to the garden fall, which it believed was an intervening and superseding cause.28 The trial court entered judgment on the jury verdict, awarding $30,000 for past medical expenses, but nothing for past physical pain. On appeal, the Texarkana Court of Appeals determined the jury’s finding of no damages for Jordan’s past physical pain was not so against

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the great weight and preponderance of evidence that it was clearly wrong and unjust, even though the jury awarded Jordan virtually all of her past medical expenses. This was because she had preexisting chronic pain and had scheduled an appointment prior to the accident to discuss depression resulting from losses sustained before the accident. “[W]hen there is conflicting evidence of the injury’s cause or an alternative explanation for the injured party’s reported pain, appellate courts have upheld zero damage findings for physical pain despite the jury finding that the injured party is entitled to damages for medical expenses.”29 The jury in this case heard that Jordan had mild disc degeneration throughout the cervical spine that could have been the result of normal aging and that Jordan’s injuries could have been the result of the hard fall she sustained five weeks and a few days after the accident. Her treating physician wrote, “Ms. Jordan has a preexisting mild left lateral curvature... of the thoracic spine that is not the result of this injury; however, the changes in joint biomechanics increased the susceptibility of that area to more damage with less trauma.”30 Accordingly, the jury could have concluded that the injuries that were not documented before Jordan’s fall were attributable to the fall.

She was also not taking the prescribed medication after the accident. As such, the Court of Appeals concluded the jury could

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have determined that she was not suffering from neck, arm, and shoulder pain as a result of the accident, as her pain was not so serious as to require compensation, therefore making the jury unable to separate any whiplash injury from her pre-existing condition.31 If there is one thing we all have learned during our years of practicing law: there are shades of gray and nuances to all aspects of a case, leaving us always with arguments to be made. Break your case into three parts, the prior condition, the recovery period (if any), and any subsequent injury. Ask yourselves, did the prior medical symptoms and suffering subside? Did the claimant continue with the medical treatment during recovery?

Was the claimant’s ability to work affected during the recovery period? Finally, what about the claimant’s current condition? Is it different from the prior condition or does it differ in degree? Discovery is essential.

Troy M. Moore is the managing attorney for the Law Office of Troy M. Moore, PLLC in Northwest Houston. His practice focuses mainly on personal injury and probate law. Moore is a proud Aggie and graduate of South Texas College of Law. https://troymmoore.com Rebecca A. Moore is of counsel in the Houston office of Sheehy, Ware & Pappas, P.C. Her practice focuses mainly on casualty claims arising from allegations of construction defects, premises liability, personal injury and commercial litigation.

Endnotes

1. Coates v. Whittington, 758 S.W.2d 749, 752 (1988); see also Driess v. Friederick, 73 Tex. 460, 462, 11 S.W. 493, 494 (1889); Thompson v. Quarles, 297 S.W.2d 321 (Tex. Civ. App.—Galveston 1957, ref’d n.r.e.).

2. 73 Tex. 460, 11 S.W. 493.

3. Id. at 461.

4. Id. at 462.

5. Id. 6. 110 Tex. 577, 212 S.W. 477, 478 (1919).

7. Id. 8. Id. at 581–582.

9. 297 S.W.2d 321 (Tex. Civ. App.—Galveston 1956, writ refused n.r.e.).

10. Spondylolisthesis is when a vertebra slips out of place and pinches spinal nerves, usually in the lumbar spine.

11. Id. at 329.

12. Id. (emphasis added).

13. Coates v. Whittington, 758 S.W.2d 749, 752-3 (Tex. 1988).

14. Id. at 750 15. Id. at 753.

16. Id. 17. 476 S.W.3d 579 (Tex. App.—Houston [14th Dist.]

2015, pet. denied).

18. Id. at 592.

19. Southland Greyhound Lines, Inc. v. Cotton, 126 Tex. 596, 91 S.W. 2d 326, 328–29 (1936) (quoting Tex. & Pac. Ry. Co. v. Bingham, 90 Tex. 223, 38 S.W. 162, 164 (1896)).

20. Id. 21. Id. 22. Id. 23. Id. 24. Id. 25. 503 S.W.3d 450 (Tex. App.—Texarkana 2016, no pet.).

26. Id.at 458.

27. Id. 28. Id. at 458–59.

29. In re State Farm Mut. Auto. Ins., 483 S.W.3d 249, 264 (Tex. App.—Fort Worth 2016, orig. proceeding) (citing Grant v. Cruz, 406 S.W.3d 358, 364 (Tex. App.—Dallas 2013, no pet.); Enright v. Goodman Distribution, Inc., 330 S.W.3d 392, 298 (Tex. App.— Houston [14th Dist.] 2010, no pet.); see also Lanier v. E. Founds, Inc., 401 S.W.3d 445, 455 (Tex. App.— Dallas 2013, no pet.); Hyler v. Boytor, 823 S.W.2d 425, 427–28 (Tex. App.—Houston [1st Dist.] 1992, no writ) (upholding zero damages for pain and suffering despite medical expenses award where jury heard evidence of other potential causes of plaintiff’s injuries).

30. 503 S.W.3d at 462.

31. Id. at 463.

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OFF THE RECORD

Professor Lauren Simpson:

Advocate for Gardens that Sustain the Web of Life

P

The Houston Lawyer

By Liz Furlow

form a critical link in the chain that will help sustain insects rofessor Lauren Simpson,1 a legal research and writing and thus the web of life. If each of us changes even just part of professor at the University of Houston Law Center, is a our home gardens into wildlife habitat, we can together create wildlife citizen activist with a passion for pollinators. the ‘stepping stones’ that pollinators and other insects need to She first grew interested in wildlife habitats when survive.5 This is something that all of us can do, and it’s thus the she lost her traditional garden landscaping in the droughts following Hurricane Ike. She and her husband, who message of hope that I share in my advocacy.” share an environmentally Her advocacy continfriendly mindset, tried to ues to grow alongside find flowering, droughther gardens. Now, as Protolerant plants that would fessor Simpson speaks support pollinators, but in the community, she few pollinators visited her learns of the impediments gardens. people face to creating She connected with a wildscapes at home. The few naturalist organizachallenges are numerous, tions around Texas—infrom neighbors’ resiscluding Butterfly Enthutance, nuisance laws that siasts of Southeast Texas, may hamper wildscapthe Houston Audubon Soing, and—most significiety, and the Native Plant cantly—deed restrictions Society of Texas’s local requiring non-native planchapters—to learn how tings or traditional landto adapt her gardens to scaping. support wildlife. Through Professor Simpson in her garden. – Photo courtesy of the University of Houston Law Center.

But Professor Simpson their mentorship, Professor Simpson learned simple changes believes that lawyers, who are well-suited to understanding the to create a beautiful, wildlife-supportive garden. Now, just five legal paradigms affecting private land use, can make excellent years later, Professor Simpson’s home gardens—which she has advocates for change. As Professor Simpson explains, “We can named Saint Julian’s Crossing Wildlife Habitat—welcome 49 counsel individual homeowners and HOAs to help resolve or species of butterfly, between 25–30 species each of bee and wasp, prevent disputes, while educating about the need for wildlifeand numerous other pollinators and wildlife. supportive decisions. But we can also advocate for statutes, ordiProfessor Simpson’s love for pollinators is founded on more nances, and regulations that support homeowners’ wildscaping than just an appreciation of their beauty. As Professor Simpson efforts.” explains, “Pollinators and other insects need our help now more Professor Simpson is already inspiring the next generation of than ever.” A recent study concluded that wild insects provide lawyers to share her passion. Recognizing the legal well-being annual eco-services in the U.S. equaling almost $60 billion a crisis,6 and the correlation of nature connectedness to well2 3 year. But insects are declining at an alarming rate. “The drivbeing,7 Professor Simpson has begun to infuse the therapeutic qualities of wildlife into her classroom. Every week, for example, ers of this decline are varied and complex,” Professor Simpson she hosts a Monday Nature Moment—a brief mindfulness exstates, “and include things such as climate change, pesticide use, perience focused on nature—wherein students may get closer habitat loss and fragmentation, competition by non-native into nature by holding native prairie grasses and butterfly catersects and plants, disease, and more.”4 pillars, selecting native prairie seeds for their homes, or listen“So here’s the ‘rejoice and be glad moment,’” Professor Simpson says. “Right here, right now, right in our own gardens, we Continued on page 41 32

January/February 2020

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Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers.

Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP

Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company

Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley Gardere LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP

Porter Hedges LLP ReedSmith LLP Sidley Austin LLP Winstead PC Winston & Strawn LLP

MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Shortt & Nguyen, P.C. Squire Patton Boggs Trahan Kornegay Payne, LLP

Boutique Firm Champions

Individual Champions

Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law

Small Firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C.

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January/February 2020

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A Profile

in p r o f e s s io n a l is m

“Y

Travis Torrence Shell Oil Company Global Litigation Bankruptcy & Credit Team Lead

our story is what you have, what you will always have. It is something to own.”

- Michelle Obama in Becoming

The Houston Lawyer

I’m black. I’m gay. I’m from the South. I’m the great-grandson of Mississippi sharecroppers and the great-great-grandson of slaves who worked on plantations in Louisiana. Although I am hopeful my ancestors would be proud of the man and professional I have become, I am certain they would be disappointed with the level of unwarranted adversity I have faced and that continues to exist today.

Among other things, I have been told I don’t belong, that I’m not good enough, and that I’ll never measure up to my peers. I’ve been laughed at and called names that have made me cry. But, Maya Angelou’s sage words continue to remind me that “hate has caused a lot of problems in the world, but has not solved one yet.”

I believe the same to be true of bigotry, jealousy, and divisiveness. In spite of the difficult circumstances I’ve faced, I have worked to create some remarkable opportunities for myself and others and have been the gracious recipient of immense generosity. So, although I’m often tempted to focus on hardship, disadvantages, and inequality, instead, I choose to be guided by my personal and professional values— courage, compassion, and civility. I’ve developed the courage to bring my true and authentic self to work; the compassion to be good to myself, my community, and the bar; and the civility to demonstrate respect for others and value differences. Those tenets have served me well, because where I’m from, and where I‘ve worked, treating others with dignity, being a zealous advocate for your clients and your business partners, helping others, and practicing law with integrity and collegiality have been of upmost importance. After all, what we do means a lot, but who we are means more.

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January/February 2020

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The Kay Sim Endowment d Bec

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A celebration of the campaign will culminate at the Annual Gala for the Houston Bar Association’s 150th Anniversary on May 14, 2020.

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committee spotlight

Get On Board Project TRAIN

“E

The Houston Lawyer

By Trey Holm and Hon. Jeff Work

very soul has value” and “each person counts” are the employee with the onboarding process, after which they retwo phrases all lawyers should have embedded in main a resource for both employer and employee. their minds. Pursuing and protecting the rights of Ryan Dole is one of the individuals Dawson speaks of who was the individual is the bedrock of our profession and given a chance and proved himself by becoming an important protecting the individual makes the community betmember of the Jackson Walker team in Houston. Kurt Nondorf, ter as a whole. In decades past, a partner at Jackson Walker, says some of these individuals with Dole is doing a great job and evgreat capacity for learning and eryone is very glad he is there. contributing were marginalized “Ryan has been a great addition for their differences and forgotto our staff. His diligence and ten. Fortunately, we have seen good humor are contagious and the genius of individuals like uplifting,” Dole couldn’t think Stevie Wonder, Helen Keller and of any concerns or challenges Beethoven, but likely missed working at Jackson Walker. He others who could have greatly Project TRAIN helps employers hire and retain individuals with special simply said, “I have enjoyed contributed. Regardless of an in- abilities, assisting at every step of the way. working here and would like to dividual’s capacity for “genius,” every person counts and should continue.” be given the opportunity to contribute.

Organizations involved in the Network include The Center for In 2017 acting on this ideal, then-HBA President Alistair DawPursuit, Social Motion Skills, H.E.A.R.T., Jewish Family Service son and the HBA started Project TRAIN (the Training, Readiness and Disability Rights Texas. The Network also provides pro-bono and Inclusion Network). Project TRAIN develops and distributes legal services to ensure that children and teens obtain services materials and training programs that assist employers in hiring they are entitled to in school and assist with establishing supportand retaining individuals with special needs or cognitive disored decision-making arrangements or guardianships once they ders. The HBA Project TRAIN Committee has worked tirelessly in turn 18 years of age. developing this innovative program and engaging law firms and Initially, 19 Houston law firms and companies pledged their corporate law departments. The potential rewards are great. As proactive support for employing individuals with special needs. the program developed, it was essential to Dawson that a support Employing someone through this program takes some extra effort system be in place for both the employer and participant. “The end and training but, again, it is worth it. result must be a win-win,” Dawson said. “These individuals can For Nondorf and the other leaders at Jackson Walker, particido this. We just need to give them a chance”. pating employers receive a diligent and productive member of The Project TRAIN Network, composed of attorneys and repretheir team, as well as a lift in the day for everyone who meets Dole. sentatives of disability rights groups, provide practical advice on “I recommend that other firms give the program a closer look and the unique situation of hiring special needs individuals, as well join with Alistair to provide opportunities for this special segas address legal issues related to the Americans with Disabilities ment of our community.” For more information, visit the Project Act and employment law. These organizations provide employers TRAIN Committee page on the HBA website at hba.org. with training that assists them in preparing for and hiring employees with special needs and managing issues that might arise.

Trey Holm is an associate editor of The Houston Lawyer. He is an Dawson assures anyone who is interested in the program that associate with Killeen & Stern, PC where he focuses on insurance Project TRAIN is with the employer every step of the way, from litigation. The Hon. Jeff Work is a former district judge and former interview through hire, onboarding, and beyond. If fact, a mentor associate editor of The Houston Lawyer, who now practices with from the program is assigned to each employee and even assists Thomas J. Henry in San Antonio.

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January/February 2020

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SECTION spotlight

Commercial & Consumer Law Section:

T

Programming Encompasses Many Practice Areas

By Stephanie Eberhardt

he Houston Bar Association’s Commercial & Consumthemselves and these experts do not shy away from adding their er Law Section is dedicated to all aspects related to the thoughts during CLEs, which makes for thought-provoking and practice of commercial and consumer law. The mementertaining discussions. Some members have even resolved casbership of the HBA Commercial & Consumer Section es after the CLE presentations. We also encourage law students to encompasses many attend our CLE meetings free practice areas and sides of so that they have the opporthe bar. We count among our tunity to meet and learn from members commercial attorpracticing attorneys. neys representing major corThe Commercial & Conporations, solo consumer law sumer Law Section has practitioners, attorneys from an annual happy hour for both the plaintiff and defense members—this year held at debt collection bar, landlord 8th Wonder Brewery in and tenant attorneys, comEast Downtown—to provide mercial real estate practitiomembers an additional opners, receivers, and governportunity to network. This The Section presents experts in all areas of commercial and consumer law at ment consumer protection monthly luncheon meetings. year, we will be hosting a attorneys. spring happy hour for members as well. Our Section contribThe Commercial & Consumer Law Section holds our monthly utes to the Houston Bar Foundation for the Harvest Celebration, lunch CLE meetings on the first Thursday of every month at The volunteers at LegalLine, and this year will be giving to the HBA Downtown Club at Houston Center. The Commercial & ConHabitat for Humanity home. The Commercial & Consumer Law sumer Law Section works hard to find speakers who are experts Section also co-hosts the Annual Holiday Reception Honoring the in their fields to present at these CLEs, and we are always lookJudiciary alongside the ADR Section, Federal Practice Section, and ing out for new legal developments of interest to our membership.

Litigation Section. You may have seen some of our section memOur section CLEs are a great way to keep up with new developbers handing out name tags at this year’s reception. ments in case law and legislation associated with our specialties.

The Commercial & Consumer Law Section is always looking In the past year, we have hosted CLEs on a wide variety of topics for members who are interested in contributing, and we have and issues such as: A Plaintiff’s Lawyer’s Perspective on Presentopportunities for section leadership in the upcoming bar year. ing Damages; Post-Judgment Remedies in Texas; Landlord/Tenant Please contact our section chair, Katharine Allen, if you are inLaw after Hurricane Harvey; Updates for Article 9; Partnership terested.

by Conduct; A Guide to The Texas Turnover Statute; Contempt for Civil Attorneys; Mortgage Litigation in Texas; and Attorney Stephanie Eberhardt is an Assistant Attorney General in the ConDebt Collectors. We encourage our members to ask questions at sumer Protection Division of the Office of the Attorney all of our CLEs. The Commercial & Consumer Law Section has General of Texas. She is the chair-elect of the HBA Commercial & a core group of regular members who are subject-matter experts Consumer Law Section. thehoustonlawyer.com

January/February 2020

37

LEGAL TRENDS

Program Gives Civil Litigation Associates Valuable Courtroom Experience

M

The Houston Lawyer

By Dane Schiller

ichael Bender’s first day volunteering for a new program created by Harris County District Attorney Kim Ogg left him stormbattered, sopping wet and barefoot in court.

The 27-year-old associate from Hunton Andrews Kurth LLP had been through three days of training and was ready to pick a jury as a temporary prosecutor in one of the county’s sixteen Justice of the Peace Courts. It would be a traffic offense—an otherwise stress-free experience for a veteran lawyer—but for a newly-licensed associate, handling that first trial can be incredibly taxing, as jurors would make their decision based on what he argued.

For Bender, the stress of preparing for his first trial was exacerbated by the dangerous stormy weather that preceded Tropical Storm Imelda. At the last minute before trial, the storm rolled into Houston and the court’s afternoon docket was cancelled. Before people could leave the courthouse on North Shepherd, the parking lot flooded. Bender pulled off his Cole Haans and socks, rolled up his slacks and started helping as people pushed cars to higher ground. They were stranded at the 38

January/February 2020

an honor to provide a public service like courthouse for hours. this here in our hometown.”

Standing in the courtroom, soaking V&E associate Anna Johnson, who wet in his bare feet on what was supposed tried her first case as a volunteer prosecuto be his first ever trial day, Bender kept tor, agreed: “Being able to try a case bethinking the same thought: “Yesterday I fore a jury as a first-year associate was an didn’t know any of these people, and now incredible opportunity.” Yvonne Taylor, they’ve all seen my toes.” chief of human resources, and Johanna Despite his difficult first day, Bender reCraft, chief of the justice turned and eventually was court section, oversee able to go to trial. He and the program. It allows nine other young lawyers civil attorneys, with the from four of Houston’s most V&E associate approval of their firm prominent civil law firms Anna Johnson, who and under the authority are gaining courtroom experience in criminal cases tried her first case as of the district attorney, to volunteer as pro bono because of the new initiaa volunteer prosecutor, attorneys in the hightive introduced under Ogg. agreed: ‘Being able to volume JP courts, generThe district attorney’s try a case before a jury ally once a week for six “pro bono attorney program” is a trend that preas a first-year associate months.

The attorneys enmiered in Houston with a was an incredible hance their courtroom program that allowed civil opportunity.’” skills while helping litigation associates to try the DA’s office with the cases in municipal courts. thousands of Class C The program has also been misdemeanor cases on the docket. To beimplemented in Chicago by Cook County gin, they attend three day-long trainings: State’s Attorney Kimberly Foxx. a trial skills day, a docket management “The program puts some of Houston’s day, and a day where they shadow a prosbest new lawyers in courtrooms to get triecutor. al experience while lightening the work“It’s important for the development of load for prosecutors,” Ogg said. “Because the young lawyers, not just for the adthe lawyers are employed by large law vocacy skills, but also to expand their firms, there is no added cost for Harris view of the community,” said Taylor, the County.”

HR chief. “It gives them an opportunity It’s a win for the law firms, as well. to give back, make the community safer, Baker Botts, Bracewell, Hunton Andrews and help develop a sense of compassion Kurth and Vinson & Elkins are particifor people in situations they might not see pating. otherwise.”

“We appreciate any opportunity for our Law firms interested in participating young lawyers to get in the courtroom,” should contact Taylor at the DA’s office. said Tony Visage, a partner at Bracewell.

Craft, chief of the justice section, said “The Harris County DA program provides she worried Bender and others wading real world experience, including working in the water were going to get bitten by with opposing counsel and interacting snakes with the Court.”

“We had to get a high-water vehicle to Jason Powers, a partner at Vinson & get us out.” Craft said. “The water came Elkins, said “We’re excited about this proup to the windows of the cars in the parkgram, both because of the experience it ing lot. It was crazy how fast the water can provide our lawyers and because it is

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LEGAL TRENDS

came in.”

For Bender, it was a day that he’ll never forget.

“People who came before me always told me their ‘war stories’ about what they dealt with in court,” he said. “Now I’ve got my own.”

Dane Schiller is the Communications Director for the Harris County District Attorney’s Office.

Klocke v. Watson:

Fifth Circuit Denies the TCPA’s Applicability in Federal Court Diversity Cases

I

By Liz Furlow

n August 2019, the Fifth Circuit Court of Appeals denied the availability of motions to dismiss under the Texas Citizens Participation Act (“TCPA”) in diversity cases in federal court.1 The Texas Legislature enacted the TCPA in 2011 to “encourage public participation by citizens by protecting a person’s right to petition, right of free speech, and right of association from meritless lawsuits arising from actions taken in furtherance of those rights.”2 In other words, the Legislature sought to curb perceived abuses in the legal system through anti-

SLAPP (Strategic Litigation Against Public fees and costs to the movant, as well as a Participation) legislation. nominal sanction; Klocke subsequently Through the TCPA, a party can seek appealed. early dismissal of any claim that, based Ultimately, the Fifth Circuit found on the movant’s preponderance of the that the TCPA did not apply to diversity evidence, infringes on a person’s right to claims brought in federal court. The Court free speech, right of association, or right examined the statute through the Erieto petition. If the movant meets that burlens—citing the reasoning that “substanden, the non-movant must tive state law must be prove each element of the applied in federal courts claim with “clear and spein diversity cases... but 3 cific evidence.” Even then, state procedural law In Klocke v. Watson, yields to the applicable a movant can still obtain Plaintiff-Appellant Federal Rules.”4 dismissal and a fee award if it shows, through a preThe Fifth Circuit reaWayne Klocke’s son, ponderance of the evidence, Thomas, was a student soned that because the a valid defense to the nonTCPA imposes evidenat the University of tiary requirements that movant’s claim. A nonTexas at Arlington who go beyond the pleading movant who cannot meet its evidentiary burden, or killed himself after the standards outlined in whose claim is barred by a University refused to Federal Rules of Civil valid defense, is subject to Procedure 8 and 12 and let him graduate. He mandatory dismissal and the evidentiary stanwas allegedly falsely dards of Rule 56, the required to pay attorney’s charged with ‘homo- statute conflicts with fees and costs; the court may also impose sanctions. phobic harassment’ al- federal law and cannot In addition to this burlegations for which the be applied to diversity den-shifting framework cases in federal court.

University administered and heighted evidentiary Though the amended punishment.” TCPA went into effect standards, the TCPA also sets specific deadlines for on September 1, 2019, the TCPA motion, as well the statute will likely as deadlines for hearing and ruling on the still be inapplicable in federal diversity motion. cases, as the amended statute removes the In Klocke v. Watson, Plaintiff-Appellant “preponderance of the evidence” standard Wayne Klocke’s son, Thomas, was a stufor movants, but retains the “clear and dent at the University of Texas at Arlingspecific evidence” standard for non-movton who killed himself after the Univerants. sity refused to let him graduate. He was Liz Furlow is an associate at Baker Botts allegedly falsely charged with “homoLLP where she practices commercial phobic harassment” allegations for which litigation. She is on the editorial board of the University administered punishment.

The Houston Lawyer.

Klocke sued the school, alleging defamation, and the University moved to dismiss Endnotes Klocke’s defamation claims under the 1. Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019), as revised (Aug. 29, 2019).

TCPA. After the district court granted the 2. Texas Citizens Participation Act, H.B. 2973, 82nd University’s motion for dismissal—disreLeg., 1st Called Sess. (codified as amended at TEX. CIV. PRAC. & REM. CODE ch. 27). garding Klocke’s procedural objections to 3. Id. at 27.005(c). the TCPA motion—it awarded attorney’s 4. Klocke, 936 F.3d at 244.

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January/February 2020

39

LEGAL TRENDS

Banning Ban the Box Enforcement Guidance in the Fifth Circuit

I

The Houston Lawyer

By Natalie DeLuca

n 2012, the Equal Employment Opportunity Commission (“EEOC”) issued standing Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Guidance”).1 In August 2019, the Fifth Circuit Court of Appeals issued an opinion in State of Texas v. Equal Opportunity Commission enjoining enforcement of that Guidance.2 Based on the Court’s findings, attorneys may now need to reexamine prior advice on the Title VII liability associated with consideration of criminal conviction history in hiring and employers may revisit their hiring processes.

The EEOC’s 2012 Guidance followed on the heels of a national “Ban the Box” movement.3 Standard job applications have historically asked the applicant to declare whether they have ever been convicted of a crime by checking either a “Yes” or “No” box. An affirmative answer to this question could be used as an easy hiring tool for employers to

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inquiries be limited to convictions for categorically screen out consideration which exclusion would be job related for of any applicant with any criminal histhe position in question and consistent tory. For those with any criminal hiswith business necessity.”8 Essentially, tory, this purportedly presented a chalthe EEOC recommended banning the lenge to gainful employment because it box. precluded even preliminary considerThe Guidance established two methation of their skills and experience and ods for an employer to show job relatthe chance to explain the particulars edness and business necessity. As a first of their criminal past in an interview. option, EEOC allowed Viewed as a civil rights isfor formal validation sue by activists, the Ban of employer screenthe Box campaign first ing processes per began petitioning public The EEOC’s 2012 the Uniform Guidelines sector employers to altogether eliminate the crimiGuidance followed on Employee Selection nal conviction question on on the heels of a Procedures. Validation, 4 however, usually reemployment applications. national ‘Ban the Box’ quires the assistance However, Ban the Box movement. Standard of paid social sciences never meant that an employer was expected to job applications have experts, but even the expose their operations to historically asked the EEOC acknowledged that validation studany applicant regardless of applicant to declare ies linking a particular criminal history. Rather, it whether they have conviction to future simply challenged employers to scrutinize criminal ever been convicted work behaviors, traits, conviction history in a of a crime by checking and conduct, were rare at the time of the Guidtailored way. That process either a ‘Yes’ or ance.9 This left employwas largely directed by the ‘No’ box.” ers to largely rely upon EEOC’s Guidance. the EEOC’s second The Guidance asserted recommended method: that consideration of crimindividualized assessment of the nature inal history could result in inadvertent and gravity of the criminal conduct, the discrimination against applicants in time passed since the offense and/or protected classes in violation of the Title completion of the sentence, and the naVII of the Civil Rights Act of 1964, parture of the job sought.10 Unsurprisingly, ticularly with respect to race and nation5 this required employers to establish a al origin. The Guidance therefore resubstantially more complex application quired that an employer’s consideration evaluation process than simply screenof arrest or conviction history must be ing out all applicants with a conviction. related to the specific job sought and The State of Texas, like many employconsistent with the employer’s business 6 ers, maintained no-felon hiring polinecessity. No longer could arrest precies as to certain positions such as, for clude employment because mere arrest, instance, police officers, game wardens, which is not proof of criminal conduct, teachers, and corrections officers.11 In could not be proven to be “job related” 7 some cases, Texas’ policies were derived absent more. The EEOC recommended from state statutes addressing the hirthat “employers not ask about convicing of those with certain convictions.12 tions on job applications and that, if But, the Guidance had explicitly warned and when they make such inquiries, the

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OFF THE RECORD

LEGAL TRENDS

From page 32

that when candidate exclusion was not proven to be job related, even compliance with a state exclusion law would not be an effective defense to Title VII because Title VII would preempt such a state law.13 In 2014, the State of Texas challenged the EEOC Guidance, seeking an injunction of the EEOC’s allegedly unlawfully promulgated Guidance.14 Further, Texas sought a declaration that notwithstanding the EEOC Guidance, it could lawfully per se exclude felons from state employment.15 Texas asserted that the EEOC Guidance caused it to choose between violating the state’s blanket no-felon laws or following those laws and subsequently risking an EEOC enforcement action because of failure to conduct the EEOC-mandated individualized assessments.16 Although initially dismissed by the trial court, the Fifth Circuit on appeal remanded the case for reconsideration in light of a new Supreme Court precedent addressing judicial review of final agency action under the Administrative Procedure Act (“APA”).17 The trial court ultimately enjoined enforcement of the Guidance until such time as the EEOC complied with APA rulemaking requirements for a notice and public comment period.18 But, on appeal, the Fifth Circuit enjoined the EEOC from enforcing the Guidance against Texas, regardless of whether eventual compliance with APA rulemaking processes was achieved.19 The court found that the Guidance bound the EEOC to a specific legal position to such a degree that noncompliance with the guidance naturally risked legal consequences for employers.20 It was, therefore, a final agency determination and a substantive rule implementing Title VII, which the EEOC lacked authority to promulgate at all, regardless of efforts at APA compliance.21 Notwithstanding the court’s ruling, discrimination in hiring and neutral hiring policies that result in discrimina-

tory impact are still unlawful pursuant to Title VII. Practically speaking, while the enforcement of the Guidance is now enjoined, it may have long ago served its primary purpose of changing employment applications, employer hiring processes, and the way employers think with respect to convicted applicants.

Now, employers who, in response to the 2012 Guidance, banned the box in favor of a robust conviction analysis may be asking: what is the point of bringing back the box now?

Natalie DeLuca is in-house Legal Counsel at the Metropolitan Transit Authority of Harris County, Texas. She is board certified in Labor and Employment Law by the Texas Board of Legal Specialization.

Endnotes

1. EEOC Enforcement Guidance, U.S. EQUAL EMP’T COMM’N, https://www.eeoc.gov/laws/guidance/ arrest_conviction.cfm.

2. Texas v. Equal Emp’t Opportunity Comm’n, 933 F.3d 433 (5th Cir. 2019).

3. Ray Maurer, ‘Ban the Box’ Turns 20: What Employers Need to Know, SHRM (Nov. 12, 2018), https://www. shrm.org /resourcesandtools/hr-topics/talentacquisition/pages/ban-the-box-turns-20-whatemployers-need-to-know.aspx.

4. See Take the Fair Chance Pledge, BAN THE BOX, www.bantheboxcampaign.org (providing the general background and history of the Ban the Box Campaign).

5. See supra note 1 (noting how “African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population.” sic.).

6. Id. 7. Id. 8. Id. 9. Id. 10. Id. 11. Texas, 933 F.3d at 439.

12. See e.g., TEX. EDUC. CODE §21.009 (requiring a pre-employment disclosure of charges, adjudications, or convictions for having inappropriate relationship with a minor).

13. Supra note 1.

14. Texas, 933 F.3d at 439–40.

15. Id. 16. Id. at 439.

17. Texas v. Equal Emp’t Opportunity Comm’n, 838 F.3d 511 (5th Cir. 2016) (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. ___ (2016)).

18. Texas, 933 F.3d at 440.

19. Id. at 451.

20. Id. at 446.

21. Id. at 450–51.

ing to the wind blow through a spring wildscape. She and her husband are also establishing the Lauren and Iain Simpson Conservation Scholarship at the UH Law Center, which will be awarded to a current UH Law Center student demonstrating a significant interest in the conservation of wildlife, of natural areas, or of both.

In addition to her advocacy work in and out of the classroom, Professor Simpson is currently researching the legal paradigms affecting urban wildscapes. She hopes to find practical avenues for that research to advance wildscaping and wildlife conservation outside academia.

Liz Furlow is a a litigation associate at Baker Botts LLP. She is a member of The Houston Lawyer’s Editorial Board.

Endnotes

1. Professor Lauren Simpson is a Clinical Associate Professor of Lawyering Skills and Strategies at the University of Houston Law Center.

2. Matthew L. Forister et al., Declines in Insect Abundance and Diversity: We Know Enough to Act Now, CONSERVATION SCI. AND PRACTICE 1 (2019) (citing John Losey & Mace Vaughan, The Economic Value of Ecological Services Provided by Insects, 54 BIOSCIENCE 31 (2006)).

3. Indeed, when twenty-four entomologists from six continents were asked to rate the insect-abundance crisis on a scale of 0 to 10 (with 10 being the direst), none rated it below an 8, and some even rated it a 10.

James Hance, The Great Insect Dying: A Global Look at a Deepening Crisis, MONGABAY NEWS (June 3, 2019), https://news.mongabay.com/2019/06/the-great-insectdying-a-global-look-at-a-deepening-crisis/.

4. See generally Forister, et al., supra note 3; see also DOUG W. TALLAMY, BRINGING NATURE HOME: HOW YOU CAN SUSTAIN WILDLIFE WITH NATIVE PLANTS (2009).

5. See Forister, et al., supra note 2 at 6 (citing Elizabeth E. Crone, et al., Faster Movement in Non-Habitat Matrix Promotes Range Shifts in Heterogeneous Landscapes, 100 ECOLOGY 1 (2019)).

6. The 2017 Report of the ABA’s National Task Force on Lawyer Well-Being concludes that law students and legal practitioners are in a well-being crisis. AM. BAR ASSOC., NATIONAL TASK FORCE ON LAWYER WELL-BEING, REPORT FROM THE NATIONAL TASK FORCE ON LAWYER WELL-BEING (2017), https://lawyerwellbeing.net/wp-content/uploads /2017/11/Lawyer-Wellbeing-Report.pdf.

7. See, e.g., Colin Capaldi, et al., The Relationship Between Nature Connectedness and Happiness: A Meta-Analysis, 5 FRONTIERS & PSYCHOLOGY (2014); Andrew J. Howell, et al., Nature Connectedness: Associations with Well-Being and Mindfulness, 51 PERSONALITY AND INDIVIDUAL DIFFERENCES 161–71 (2010).

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41

Media Reviews

The Law and Liability of Small Aircraft

By Cecil C. Kuhne III ABA Book Publishing, 2018 Reviewed by Anietie Akpan

The Houston Lawyer

W

arning! If you have a fear of flying, this is not the book (review) for you. Everyone else—read on!

Written by Cecil C. Kuhne III of Norton Rose Fulbright’s Dallas office, The Law and Liability of Small Aircraft (Small Aircraft), provides in-depth discussion of the jurisprudence of aviation, namely dealing with difficult issues of liability from flying small aircraft. It is a densely written resource containing no less than 15 federal court cases describing the wide array of legal issues that frequently arise in aviation litigation, including but not limited to, products and tort liability, property damage, compliance matters under the Federal Aviation Administration (FAA) and federal evidentiary and procedural matters regarding the same.

The legal discussions of Small Aircraft are divided into two broad categories: “Product Liability” and “Regulatory Scheme.” While the former addresses legal issues and court decisions regarding aircraft design, engine manufacturing, pilot error and flight training, the latter discusses FAA compliance, such as safety regulations and fiduciary duties of FAA officials. This book also contains a set of appendices of federal circuit 42

January/February 2020

and U.S. Supreme Court opinions highlighting lower court decisions discussing negligence, strict tort liability and federal evidentiary conflicts regarding investigatory reports.

Each chapter is between five and seven pages, in which the author succinctly provides the fact history of a unique aviation legal issue, describes its litigation history and subsequently provides the final holding of the court. The chapters are further divided into important subsections, showcasing the book’s easy readability. For example, Chapter 5’s examination of the 5th Circuit’s Moorhead v. Mitsubishi Aircraft International, Inc. case (addressing a pilot’s negligence by waiting too long to fly out of dangerous weather) is partitioned into smaller paragraph discussions entitled: “Standard of Due Care,” “Airspeed Indicator,” “Pilot Negligence,” “Evidentiary Rulings,” and so forth, giving the reader an easy roadmap to follow the respective court’s analysis of the factual and legal issues at hand.

While reading Small Aircraft, you will come across chapters with titles such as, “Crashworthy Aircraft: Is the Design Adequate?,” “Fuel System: Why Did the Engine Stall?,” and “Runway Collision: Who Is at Fault?” which admittedly, may not come across as particularly—ahem— comforting. However, the plethora of case analysis this book provides, as well as its highly organized structure, make it an incredible resource for the personal injury, products liability or tort attorney who may be seeking an introduction to a unique jurisprudence likely to manifest in their respective areas of practice.

Anietie Akpan serves as in-house counsel for METRO and is an Associate Editor for The Houston Lawyer. After reading and reviewing this book, it is highly unlikely you

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will find her on an airplane anytime in the near future.

Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law

By Preet Bharara Penguin Random House, 2019 Reviewed by Tim McInturf

F

ormer United States Attorney (US Attorney) for the Southern District of New York (SDNY) Preet Bharara, became wellknown in the financial and legal community for high profile Wall Street investigations and prosecutions (e.g., SAC Capital) in the same way former mayor Rudy Giuliani became famous for prosecuting so-called junk-bond trader Michael Milken. Prosecutions of really rich Wall Street people or firms tend to receive lots of attention. Bharara also became well known for prosecuting New York State public officials. Prosecution of public officials tends to receive lots of attention. In short, whether intentionally or not, Bharara became a public figure during his seven and one-half years as US Attorney for the SDNY. Bharara, who was appointed by President Obama, writes in the very first paragraph of his book about the fact that he was fired

by President Trump. He omits that after Attorney General Jeff Sessions was confirmed by the United States Senate, Sessions requested the resignations of all US Attorneys

Media Reviews

appointed by President Obama. There is nothing unusual about this. Appointment to US Attorney is not a lifetime appointment. When the presidency turns over, it is customary for the incumbents to offer their resignations. Then the new president can choose to either accept or reject them— without having to fire anyone. Forty-six of the 47 Obama-appointed US Attorneys submitted their resignations according to custom. Bharara refused and forced the president’s hand. What did Bharara expect?

How many times has this president said the words, “You’re fired.” He made a career of it.

Some reviews have claimed that Doing Justice—written as the author says “following an involuntary job change”—is not political. Perhaps. Today it is customary for those seeking higher office to write books, for instance: “Hard Choices” by Hillary Clinton, published June 10, 2014, “Outsider in the White House” by Bernie Sanders, published September 28, 2015; “No Apology: The Case for American Greatness” by Mitt Romney, published March 12, 2010; “The Audacity of Hope” by Barack Obama, published July 15, 2008; “Hard Call” by John McCain, published August 14, 2007.

There are plenty more.

Because the author himself spent the prologue of the book discussing his firing and how ugly US politics has become, a seed is planted about what the author intends. Is the book intended to make the world—not just the justice system—a better place (his stated goal in a nutshell) or is the book intended to persuade the reader that the author would make the world a better place if elected to higher office. This question hovers over the book.

The book is equal measure behind-thescenes look at the US Attorney’s office of the SDNY, personal war stories, and the author’s views on the moral issues (sometimes quagmires) presented by the cases.

Of this formula, the first two measures are fascinating to someone who is not familiar with the inner workings of the FBI and any United States Attorney’s office. The author

is a good writer and has selected interesting war stories. But the third leaves at least one reader wondering about the author’s purpose for writing the book. Only time will tell.

Tim McInturf serves as the president of Quantlab Financial, LLC (www.quantlab. com) and is a former trial and appellate lawyer. He regularly volunteers on the KHCB 105.7 Bible Questions & Answers show and enjoys helping people talk through their problems both on and off the air. He is a past Editor-in-Chief of The Houston Lawyer.

Confessions of an Innocent Man

By David R. Dow Dutton, 2019 Reviewed by Tara Shockley

I

magine a terrifying nightmare in which you are wrongly accused of a crime, found guilty and imprisoned on death row. And imagine that crime is the brutal murder of the person you most loved.

For Rafael Zettah, a chef and Houston restaurant owner, that nightmare is real in Confessions of an Innocent Man, the first novel by David Dow, founder and director of the Texas Innocence Network and Cullen Professor at the University of Houston Law Center. From the chilling opening page, the reader knows this is a story about justice exacted by the unjustly accused.

Rafael’s life begins in Texas when his father, a crop duster for a Mexican drug cartel, flies his mother over the border to deliver their baby so he will be an American citizen. After his father is brutally murdered and his mother dies, Zettah returns to the U.S. and attends culinary school. At 38, he is a rising star on the Houston food scene who has just opened a successful restaurant, a licensed pilot, and a bachelor enjoying his craft and his unencumbered life.

One night in his restaurant he meets

Tieresse, an older, beautiful and incredibly wealthy businesswoman and philanthropist who becomes his soul mate. They enjoy every moment of their life together, albeit one with an unusual arrangement.

Then Tieresse is found bludgeoned to death in her Houston home, while Rafael is spending the night in his restaurant apartment. So begins Rafael’s nightmare when he is accused, tried and convicted of her murder. He is sentenced to die and begins nearly seven years on death row.

When a crooked detective passes away, 11 boxes of evidence are recovered in his garage, including a bandana the police found in Tieresse’s backyard while investigating her murder. DNA testing links the crime to someone serving a life sentence for another murder, and Rafael is ultimately released. But he soon realizes that he cannot be the exonerated man who sets up charitable foundations and urges reform of the criminal justice system. “After years of being brutalized by a system that did not care about them at all, that denied their very dignity, they remain decent and good... I am not one of them.” Instead, Rafael begins an elaborate plan to exact his own form of “eye for an eye” justice.

Dow is eminently qualified to write about the fear, tedium, and loss of hope that is part of life on death row. He has represented more than 100 death row inmates during state and federal appeals, and he knows about the conversations and relationships between inmates, their attempts to deal with the certainty they are going to die, the hopes and crushing disappointments of the appellate process. As an author, Dow has given us a suspenseful, wellwritten novel that is difficult to put down.

As a lawyer and advocate against capital punishment, he makes us feel the horrors of justice denied.

Tara Shockley is the associate executive director of the Houston Bar Association and serves as managing editor of The Houston Lawyer.

thehoustonlawyer.com

January/February 2020

43

LITIGATION MARKETPLACE

Office Space HOUSTON/GREENWAY PLAZA AREA – 3555 Timmons Three Solo Estate Planning attorneys seeking a transactional attorney for suite mate.

Beautiful, quiet, elegant, unobstructed views from a triple window office plus staff office available. Amenities include conference rooms, reception area, copier/scanner/printer, kitchenette, high-speed internet, free parking for clients. Elevator lobby exposure. Immediate occupancy. Easy commute to West U, Bellaire and River Oaks @ $2600/month.

Please call Michael Ramirez at 713-621-7057 or email tfrierson@friersonlaw.com.

The Houston Lawyer

Heights area law office sharing.

1 large office (approx 15x15) available August 1. Modern building with 24 hour security on North Loop near Shepherd with downtown views. Beautiful conference room with 60” TV/Whiteboard, color copier/fax/scanner available on network, internet, full featured VOIP phone system, Wi-Fi and wired internet, attached covered parking, room for your files. Kitchen in suite with microwave/pizza oven, coffee, soft drinks, water and snacks available.

Contact Mike or Teri at 713 529-2020 for more information.

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January/February 2020

HOUSTON GALLERIA OFFICE SPACE Galleria area office space for sharing arrangement. Three attorney’s spaces are available with space for support staff and files. Attorney offices are about 14’ X 15’ with large windows.

We have conference rooms, kitchen, and other common areas. This is not an executive suite. Email Kurt Arbuckle, kurt@kurtarbuckle.com.

Large furnished office with marble conference table in former art gallery (now law office) plus secretary’s office or cubicle. Near Richmond at Kirby. Phones, internet, kitchen, copier, postage, shredding service available.

713-840-9600 Professional Services All things driving and sealing/expunging criminal histories. We defend traffic and ordinance violations, remove arrest warrants, solve DPS license issues, obtain occupational licenses, and handle DWI, racing, reckless driving, evading, and hit and run cases. 41/2 YELP stars.

Robert W. Eutsler 713-464-6461 TheTicketAttorney.com Astro Tickets for Sale Astros Ticket Group Seeking Additional Partners for 2020.

We own 4 seats in DugOut 114, Row 11. Available to firm or individuals, rotational drawing used to select games.

Between 8 to 32 pair offered in 2 or 4-seat combinations. $287.50/pair. Contact Michael Smith 832-768-0952 or msmithlaw35@gmail.com.

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