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Causation in Torts: Deciphering the Indecipherable The Health Care Liability Claim Pre-suit Notice and Authorization Trap Assessing the Status of the Attorney-Client Privilege in the Age of Twitter Golf Cart Ejections: Injuries and Deaths on the Rise Meet New President Warren W. Harris




Volume 56 – Number 1

July/August 2018

Warren W. Harris 2018-2019 President Houston Bar Association

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contents July/August 2018

Volume 56 Number 1



FEATURES in Torts: 10 Causation Deciphering the Indecipherable By Preston Hutson

Health Care Liability 14 The Claim Pre-suit Notice and Authorization Trap

By Robert W. Painter

the Status of the 18 Assessing Attorney-Client Privilege in the Age of Twitter

By Allison Standish Miller



Cart Ejections: Injuries 24 Golf and Deaths on the Rise By Benny Agosto, Jr.

New HBA President 26 Meet Warren W. Harris W. Harris Takes 28 Warren Office as HBA President 29 50-Year Lawyers Awards and 30 President’s Justice Eugene A. Cook Professionalism Award

The Houston Lawyer



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, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, 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., 2017. All rights reserved.


July/August 2018


contents July/August 2018

Volume 56 Number 1



departments Message 6 President’s Building for the Future By Warren W. Harris From the Editor

of Change 8 ABySeason Polly Graham Fohn THE RECORD 32 OFF A Marriage for History’s Sake:

David Furlow and Lisa Pennington By Anietie Akpan



in professionalism 33 AFredProfile Hagans


Spotlight 34 Committee Speakers Bureau: Demystifying

Everyday Legal Issues

By Raymond L. Panneton SPOTLIGHT 35 SECTION HBA Federal Practice Section:

Bringing Together the Federal Bench and Bar By Yvonne Ho


Trends 36 Legal Supreme Court Strikes Down PASPA By Nicholas R. Pierce

Reasonableness of Hospital Charges By Chance A. McMillan

ReviewS 38 Media Mastering Voir Dire and Jury

Selection, 4th ed.

Reviewed by Robert Painter

The Far Away Brothers: Two Young Migrants and the Making of an American Life Reviewed by Anietie Akpan

The Houston Lawyer

40 Litigation MarketPlace


July/August 2018


president’s message By Warren W. Harris Bracewell LLP

Building for the Future


n behalf of all HBA members, I want to thank tremendous resource to the HBA. This year we will work more Alistair Dawson for his service as president. I closely with the substantive law sections. Many of our memhave worked with him on the board for the past 10 bers are only active in the bar through their section memberyears, so I have seen firsthand all that he has acship, and we want to be sure they are well served by the HBA. complished. During his term as president, HousThis year we will also focus on professionalism, and an issue ton had an unprecedented storm. Alistair quickly mobilized of The Houston Lawyer will be devoted to that topic. The board HBA members, who served 10,000 victims in of directors has moved to increase the awareurgent need of legal representation. Despite all ness of professionalism by creating a new anWe are fortunate of those challenges, he ensured the HBA did nual professionalism award. This award honto have a dedicated not miss a beat with all of the other activities. ors lawyers and judges who have demonstrated By any test—fundraising, committee work, lifelong professionalism and was presented for group of lawyers who special projects—Alistair had an outstanding the first time at the recent HBA annual dinner. year as president. Congratulations on a job The new award was presented to its namesake, volunteer to serve as well done. Justice Eugene A. Cook, widely regarded as our board of directors, For 148 years, members of the Houston bar the “father of professionalism” in Texas. Two have enjoyed a rich tradition of fellowship and members of the Supreme Court of Texas parsection chairs, and camaraderie. We must also look to the future of ticipated in the presentation ceremony. Justice committee chairs, our bar and our profession. We are fortunate to Jeff Brown presented the new award. Because have a dedicated group of lawyers who volunJustice Cook was unable to attend the annual and I know we teer to serve as our board of directors, section dinner, Chief Justice Nathan Hecht accepted have a great year chairs, and committee chairs, and I know we the award for Justice Cook. Chief Justice Hecht have a great year ahead with their leadership. served on the Court with Justice Cook and ahead with their Over the past several months, I have chaired was a Justice when the Texas Lawyer’s Creed a strategic planning task force. One directive was adopted by the Court, so it was fitting that leadership. that came out of our strategic planning is that Chief Justice Hecht accept the award. We apwe must ensure the HBA brings value to all of our members preciate that Chief Justice Hecht and Justice Brown traveled and remains relevant to all lawyers, regardless of where they from Austin to take part in the award presentation. practice and the type of practice they have. We will make the I recently was invited by Judge Keith Ellison to make reHBA even more relevant because of the shared commitment to marks on behalf of the bar at a naturalization ceremony. I had improving our profession in the many different ways we pracnever been to a naturalization ceremony, and it was quite a tice it. The HBA has so many good projects, and we will work moving experience. More than 3,000 new citizens plus thouto ensure our programs are focused on serving Houston lawsands of friends and family were in attendance. It was very yers and fulfill our mission. emotional with so many new citizens being naturalized, and The board of directors is continuing the work begun by the it is a great privilege to be a part of an event like this. It is strategic planning task force. At its recent retreat, the board wonderful that Judge Ellison is so committed to these naturalheld a half-day session to follow up on the recommendations of ization ceremonies, and I appreciate that he included me and the task force. The board made revisions to the HBA’s mission the HBA. statement based on the report of the task force. The board has I look forward to the year ahead as HBA president and am another strategic planning session scheduled for September. honored to serve our members. Please let me know if you have As a former section chair, I realize that the sections are a ideas on how the HBA can help Houston-area lawyers.

The Houston Lawyer


July/August 2018



July/August 2018


from the editor By Polly Graham Fohn Haynes and Boone LLP

Associate Editors

Anna M. Archer U.S. District Court

Preston Hutson MehaffyWeber PC

Jeff Oldham Bracewell LLP

Taunya Painter Painter Law Firm PLLC


A Season of Change

when bringing a health care liability claim. he first issue of The Houston Lawyer went The magazine cannot rest, however, on its past to press in 1963. Today, over 50 years latachievements. The ready supply er, the magazine continof news and informaues to thrive. tion on the internet is It reaches an changing the way that audience of over 31,000 people read and it is readers in an era when time to reevaluate the print publications are format and content of increasingly scarce. Last the magazine. We are year, the State Bar of already making small Texas once again named changes. For example, The Houston Lawyer the magazine has long as the best publication run a column in each among large bars in the issue spotlighting the state. work of HBA committees. In comAs the incoming editor-in-chief As the incoming ing editions, we will add a sister for the 2018-2019 bar year, I aspire column spotlighting the efforts of to live up to the standard of exceleditor-in-chief the HBA law sections, where our lence set by those who have come members come together to focus on before me. In this issue, we kick for the 2018their specialty practice areas. The off the bar year with an outstand2019 bar year, sections are often members’ primaing line-up. HBA President Warren ry points of contact with the HBA Harris shares his agenda and goals I aspire to live up and deserve greater recognition. for the new bar year. President-Elect Throughout the year, under the Benny Agosto writes on the increasto the standard leadership of HBA President Waring prevalence of severe injuries ren Harris, the editorial board will from golf cart ejections and how to of excellence continue to explore how to bettry such cases to a jury. Past recipiset by those who ter deliver the content our readers ent of the award for best article of want. We do not yet know where the year, Preston Hutson of Mehaffy have come the journey will lead us. It might Weber contributes a scholarly arreaffirm our current format, with ticle on the evolution of causation before me. few if any alterations, or result in standards in Texas. Allison Standish additional changes big or small. But in the end, Miller of Beck Redden explores the recent state of whatever the result, we hope to leave with a better the law on attorney client privilege famously deunderstanding of the future of the magazine. clared “dead” just months ago. Finally, former ediThank you for reading The Houston Lawyer! tor-in-chief Robert Painter discusses traps to avoid

The Houston Lawyer

Hon. Jeff Work Manning, Gosda & Arredondo, L.L.P.


July/August 2018






First Vice President

Past President

Warren W. Harris

David Harrell

Benny Agosto, Jr.

Bill Kroger

Jennifer A. Hasley

Alistair B. Dawson

Second Vice President

Chris Popov

DIRECTORS (2017-2019)

Collin Cox Hon. Erin Lunceford

Diana Perez Gomez Robert Painter

Daniella Landers Lionel M. Schooler

DIRECTORS (2018-2020) Greg Moore Greg Ulmer

editorial staff Editor in Chief

Polly Fohn Associate Editors

Anna Archer Jeff Oldham Hon. Jeff Work

Preston Hutson Taunya Painter

Anietie Akpan Natasha Breaux Marcel de Chermont Al Harrison Trey Holm Stacey Lafitte Michael A. Lee David Lopez Tim McInturf George Murr Taunya Painter Sara Taheri Koby Wilbanks

Editorial Board

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Managing Editor

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By Preston Hutson

Causation in Torts:

Deciphering the Indecipherable


s with many universally accepted legal values, the principle of holding people civilly responsible for the consequences of their own conduct has been around for centuries. History set the foundation, and we are now tasked with deciphering it for the modern world. Tort liability grew out of the 18th century philosophical notions inherent to the laws of nature.1 Indeed, any community composed of individuals each endowed with the natural right of self-determination necessarily must establish rules governing situations in which another abridges one’s inalienable right of self-determination. As the 19th century dawned, and Napoleon ascended to power in the cataclysmic wake of the French Revolution, Napoleon immediately promulgated the French Civil Code proclaiming the basic premise of civil liability: “Every act of one which causes damages to another obliges him through whose fault it has happened to repair it.”2 In essence, the French Civil Code established the tort axiom that every person is responsible for his or her own conduct. Within Anglo-American law, the principle of tort liability remained uncodified,

and absent a legally recognized source, necessarily evolved within the existing framework of the English common law. Springing from the equitable authority of the Chancery, civil restitution was initially obtained only through bills in equity.3 Consequently, the common law tradition of fault liability became encumbered by technical limitations specific to equity jurisprudence. For instance, claimants seeking remuneration in a court of equity had to come before the court with “clean hands,” i.e. irreproachable, free of the taint of inequity or bad faith.4 While the clean hands doctrine served multiple purposes, it primarily acted to combat the potential for unjust enrichment. In this manner, the law created the fundamental concept limiting potential recovery to those damages specifically attributable to the defendant’s conduct. While the practice of fault liability has since evolved, this fundamental causal tenet remains: did the party charged cause the harm? With the remainder of this article, we will explore the legal framework dedicated to resolving this question. A word of caution—the systematic study of causation is not for the faint of heart. It begins with Sir Francis Bacon and a simple, but misapplied, Latin maxim evolves into a swamp of impenetrable legalese. From the maxim, courts introduced a bevy of terms, like “proximate cause” and “foreseeability,” purporting to clarify causal questions. Rather than clarify, these terms tended to obfuscate. Leon Green, a1920s legal scholar, opined that terms like “proximate” and “remote” are “worse than useless” and of no aid in resolving causal questions.5 Further, the use and abuse of these terms, Green noted, created an unintelligible screen of obscure language a court could fall back upon any time it needed legalistic justification supporting a difficult decision.6 A. Origins of the Causal Inquiry As common law tort liability developed throughout the 19th century, both courts and legal scholars frequently turned to Lord Francis Bacon’s first Latin maxim: In jure non remota causa sed proxima spectatur. It were infinite for the law to judge the causes of causes, and their im-

pulsions on of another; therefor it contenteth it selfe with the immediate cause, and judgeth of acts by that, without looking to any further degree.7 As noted above, early American courts commonly applied Bacon’s maxim as the principal means to prevent unjust enrichment across the broad spectrum of civil jurisprudence. Most commonly, the maxim governed insurance disputes, segregating covered losses “proximately caused” by the insured peril from losses considered too “remote.”8 The maxim’s first mention in an American court occurred in 1805 by the Supreme Court of Errors of Connecticut in Nichols v. Bronson.9 Therein, Bronson successfully brought a statutory “vexatious suit” against Nichols, the latter having maliciously filed a debt claim against him without good grounds. Entitled to treble damages, the victorious Bronson submitted an affidavit seeking recovery of both expenses and consequential damages resulting from his having had to answer Nichols’s bad faith claims. Nichols filed a bill of exceptions to the consequential damages, arguing: We contend, that these causes of damage are too remote: By stating them in the declaration thus particularly, they are not the less so. A party may have a good cause of enhancing damages, and by omitting to state it particularly, lose the benefit of it. But by stating a cause to enhance damages, it does not, of course, become a legal cause. The nature of these causes of special damages is not at all affected by being thus particularly charged in the declaration. In jure, non remota causa, sed proxima, spectatur. This is a general rule, and applies in no cases more frequently, and forcibly, than in questions of damages, and consequential injuries.10 While the Court disagreed with Nichols, ruling Bacon’s maxim to be inapplicable, the result sheds no light upon our inquiry. Rather, the reader should note Nichols’s casual manner in applying the maxim, as one might play a trump in a game of cards. Nichols makes no effort either to understand much less apply the maxim’s literal meaning to the facts at issue. Nichols’s

rote application of Bacon’s maxim mirrors the larger legal tradition in which courts and jurists employed Bacon’s maxim as a “universal solvent of [all] difficulties” that a court might fall back upon any time it needed to justify its decision.11 In short, consistent, workable rules for assessing causation did not exist. B. Texas causation law, circa 1896 Texas jurisprudence during the late 19th century reflects this absence of any workable rules to establish causation. Consider Texas & P. Ry. Co. v. Bigham.12 Having contracted with the Texas and Pacific Railway Company (T&P) to transport 100 head of cattle to Waxahachie for sale, Bigham delivered his cattle to T&P’s stock pens to await shipment. Upon herding his cattle into the stock pen, Bigham began securing the gate by means of a rope—the gate’s latching mechanism was broken and had been for months. As he tied the rope, a passing train panicked the herd and the livestock plunged toward Bigham and the broken gate. Unable to get out of the way, the herd threw Bigham 20 feet upon the ground, rendering him unconscious. After a jury awarded Bigham both personal injury and property damages, T&P appealed, claiming its broken gate was not the proximate cause of Bigham’s injuries. The Supreme Court agreed and reversed Bigham’s award for personal injury. In reversing, the Court distinguished Bacon’s maxim, noting that to construe its terms literally meant defining proximate cause by its temporal relation to the event—“in ordinary language, a proximate cause is the nearest cause.”13 Finding that result untenable, the Court searched for a standard more to its liking: It is usually laid down, in cases of negligence, that, in order to constitute the proximate cause of an injury, the injury must be the natural and probable result of the negligent act or omission. Since every event is the result of a natural law, we apprehend the meaning is that the injury should be such as may probably happen as a consequence of the negligence, under the ordinary operation of natural laws... But it seems to us that as applied to the law of negligence, at least, a better

ground for the rule is that a party should not be held responsible for the consequences of an act which ought not reasonably to have been foreseen. In other words, it ought not to be deemed negligent to do or to fail to do an act when it was not anticipated, and should not have been anticipated, that it would result in injury to any one (sic).14 Note the lengths the Court appears willing to undertake to favor T&P railroad. Not only has it eschewed the literal application of Bacon’s maxim, the Court has also dismissively swept aside the then generally accepted legal standard for ascertaining foreseeability, i.e. should the defendant have foreseen its conduct to have naturally and probably resulted in plaintiff’s injury? Ultimately, in overturning his personal injury claims, the Court held Bigham’s negligence in tying the rope operated to break the continuous operation of T&P’s defective gate and that the railway could not have reasonably foreseen Bigham’s injuries. Amazingly, however, in assessing the foreseeability of the injuries suffered by Bigham’s cattle, the Court held that it was T&P’s duty to safely hold the cattle and the railway company should have anticipated the potential that cattle might escape. While further discussion of the origins of the causal standard is beyond our scope, at this point the reader doubtless appreciates the absence of any workable rules for assessing causation. Rather, courts adopted opaque terms, devoid of any substantive meaning, to use as “universal solvent” it might apply to resolve any difficulties presented by the case.15 C. Texas Causation Law, Circa 2018 In the years following Bigham, Texas developed a two-pronged approach to causal questions—proof of causation has two elements, cause in fact and foreseeability.16 As currently formulated, to establish that a negligent act or omission proximately caused a given harm, a plaintiff must show that the negligent act or omission was a substantial factor in bringing about the harm and that harm would not have occurred absent (but for) the negligent act or omission. Conversely, to prove that the thehoustonlawyer.com

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harm was foreseeable, a plaintiff must illustrate that a person of ordinary intelligence would likely have anticipated the danger created by negligent conduct.17 Certainly, if asked, the Texas Supreme Court would have us believe that this most recent iteration of the causal inquiry reflects a drastic improvement over previous iterations. But closer inspection reveals the Court’s continued reliance upon rote legal terms, old and new, offering little predictive guidance. Indeed, were Leon Green to survey current Texas jurisprudence, he would doubtlessly draw parallels between the 1896 Court’s overt willingness to manipulate the standard to its own end and the modern Court’s promulgation of a malleable standard that unapologetically blurs any significant distinction between cause in fact and foreseeability. 1. Factual Cause/Cause in Fact Throughout the 20th century, the standard for establishing factual causation was referred to as the “but-for” test—“an act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred.”18 As originally conceived, courts intended the “but for” inquiry as a simple, straightforward inquiry, i.e. did the act cause the harm or not?19 Courts traditionally left questions concerning the legal scope of liability, i.e. whether the law recognizes a right of recovery for the specific injuries at issue, under the rubric of “proximate cause.” While the “but-for” test works well for cases involving a single defendant accused of a single negligent act or omission, the standard often breaks down when applied to multiple defendants and multiple allegations of negligence. To solve this perceived problem, the RESTATEMENT (FIRST) OF TORTS introduced the concept of “substantial factor,” which the drafters intended as a method of assessing injuries having multiple sufficient causes.20 But the substantial factor rubric proved confusing and was often employed by courts alternatively to impose a more rigorous standard for factual cause or to provide a more lenient standard. The Texas Supreme Court first considered the “substantial factor” concept to impose a more rigorous standard of proof. 12

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United Pump Co. v. Allbritton involved a firefighter injured while crossing over a pipe rack made wet by the liquids used to extinguish the blaze.21 After an investigation revealed the fire to have resulted from a defective pump, the injured firefighter sued the pump’s manufacturer, alleging that but for the defective pump and the resulting fire; she would not have been injured. In reversing judgment on the products and negligence claims, the Supreme Court noted that to establish causation in fact, Allbritton needed to prove that the pump’s failure was a substantial factor in bringing about her injuries. At some point within the causal chain, the Court reasoned, the connection between the defendant’s conduct and plaintiff’s injuries might be too attenuated to constitute legal cause, which is not established if the bad conduct “does no more than furnish the condition that makes the plaintiff’s injury possible.” Citing the RESTATEMENT (SECOND) OF TORTS, the Court added that the phrase “substantial” implied a standard requiring the defendant’s conduct to have “such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called philosophic sense.”22 While a complete discussion of Allbritton is well beyond our scope, the opinion is most notable because it was issued months after the seminal 1994 election shifting the political balance of power in Texas. In reviewing the opinion, one is immediately aware of the Court’s magical shift in the meaning of the term “legal cause,” which before Allbritton was synonymous with “proximate cause” requiring proof of both cause-in-fact and foreseeability, into a wholly separate inquiry designed to assess the remoteness between the defendant’s conduct and the plaintiff’s injury. Before Allbritton, assessing the scope of a defendant’s liability was reserved for the foreseeability element. After Allbritton, the scope of a defendant’s liability became a consideration in both the factual causation element (was the cause too remote) and the foreseeability element (should the defendant have anticipated the danger created by its conduct). To what end? Allbritton created a mechanism

through which Texas courts might dismiss a products liability action under the rubric of “scope of liability.” Simply by turn of phrase, the Court dismissively altered the prevailing legal standard and eliminated any substantive distinction between the standards of producing cause and proximate cause. If one listens carefully, they may hear the distant echoes of Leon Green bemoaning the use of “spongy terms, each capable of absorbing the meaning of others, and frequently used interchangeably.”23 Since Allbritton, Texas courts have universally applied the term substantial factor to limit the scope of the putative defendant’s potential liability. Moreover, courts have increasingly employed this limitation to decide cases as a matter of law. Indeed, while courts traditionally expressed causal inquiries as questions of fact ripe for the jury, recent jurisprudence suggests that scope of liability issues are more appropriately decided as a matter of law. Indeed, Texas jurisprudence is replete with opinions rendering judgment upon questions of whether a defendant’s wrongful conduct was a substantial factor in causing the proffered injury. Presently understood, plaintiffs bear the burden of presenting sufficient evidence establishing a reasonable probability, i.e. more likely than not, that factual cause exists. While one need not prove factual cause with absolute certainty, they must offer evidence of probative forces demonstrating factual causation beyond a mere possibility or speculation.24 And, perhaps the most dangerous pitfall, a plaintiff’s evidence must demonstrate that the defendant’s bad conduct did more than merely furnish the condition making the injury possible; it must show an actual causal link between the conduct and the injury.25 2. Foreseeability Initially, jurists intended the causal inquiry to involve two inquiries, cause in fact and foreseeability.26 Recall our discussion of the 1896 Bigham opinion in which the Texas Supreme Court acknowledged the accepted standard that to establish foreseeability the plaintiff must show that the defendant might reasonably have foreseen its conduct to naturally and probably result in the

plaintiff’s injury. Over the ensuing decades, Texas modified this standard to ask whether the actor, as a person of ordinary intelligence, should have anticipated the dangers created by the conduct.27 Importantly, the actor need not have foreseen the particular accident that ensued; the actor need only have anticipated an injury of that particular character involved. To illustrate further, consider the following from § 29, comment d of RESTATEMENT (THIRD): Thus the jury should be told that in deciding whether the plaintiff’s harm is within the scope of liability, it should go back to the reasons for finding the defendant engaged in negligent or other tortious conduct. If the harms risked by that tortious conduct include the general sort of harm suffered by the plaintiff, the defendant is subject to liability for the harm.28 Most questions of foreseeability concern the affirmative defense of superseding cause, i.e. whether the defendant can establish an intervening conduct or force as a superseding cause of plaintiff’s injuries. If the defendant can prove the intervening activity was not foreseeable, it will necessarily break any causal connection between its wrongful conduct and plaintiff’s injuries. While a defendant may contend any subsequent event supersedes its own responsibility, these questions usually arise in assessing whether the defendant might reasonably have expected the intervening criminal acts of a third person. Texas has adopted the RESTATEMENT (SECOND) OF TORTS § 442, which enumerates several factors to be considered upon facing these questions.29

As the causal jurisprudence developed, American courts co-opted the vague terms within Bacon’s maxim, creating a swamp of impenetrable legalese that served to cloak their judicial decisions with the imprimatur of validity. Texas jurisprudence both past and present continues this unfortunate tradition of hiding its decisions behind an unintelligible screen of obscure language. Preston Hutson is a shareholder with MehaffyWeber, with a primary practice in civil defense litigation. He is an associate editor of The Houston Lawyer magazine. Endnotes

1. Roscoe Pound, CAUSATION, 67 YALE. L. J. 1, 6 (1957). 2. Id.; Edward A. Tomlinson, TORT LIABILITY IN FRANCE FOR THE ACT OF THINGS: A STUDY OF JUDICIAL LAWMAKING, 48 LA. L. REV. 1299, 1300 (1988). 3. Pound, supra, at 7. 4. Precision Instr. Mfg. Co. v. Automotive Maint. Machinery Co., 324 U.S. 806, 65 S. Ct. 993, 997 (1945). 5. Leon Green, ARE NEGLIGENCE AND “PROXIMATE” CAUSE DETERMINABLE BY THE SAME TEST? — TEXAS DECISIONS ANALYZED, 1 TEX. L. REV. 243, 251-52 (1923). 6. Id. 7. Francis Bacon, MAXIMS 1; Joseph H. Beale, THE PROXIMATE CONSEQUENCES OF AN ACT, 33 HARV. L. REV. 633 (1920).

8. C.f. Waters v. Merchants Louisville Ins. Co., 36 U.S. 213, 223, 9 L. Ed. 691 (1837); Louisiana Mut. Ins. Co. v. Tweed, 74 U.S. 44, 45, 19 L.Ed. 65 (1968); Pound, supra, at 7. 9. 2 Day 211 (Conn. 1805). 10. Id. at 213-14 (Citations omitted). 11. Jeremiah Smith, LEGAL CAUSE IN ACTIONS OF TORTS, 25 HARV. L. REV. 103, 106 (1911). 12. 90 Tex. 223 (1896). 13. Id. at 225. 14. Id. at 225-26. 15. W. Page Keeton, NEGLIGENCE, DUTY, AND CAUSATION IN TEXAS, 16 TEX. L. REV. 1 (1937). 16. C.f. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). 17. Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016). 18. RESTATEMENT (THIRD) OF TORTS: PHYSICAL AND EMOTIONAL HARM § 26, cmt. b (Am Law Inst. 2010). 19. Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, THE LAW OF TORTS § 185 (2nd ed.). 20. RESTATEMENT (THIRD) OF TORTS: PHYSICAL AND EMOTIONAL HARM § 26, cmt. j (Am. Law. Inst. 2010). 21. Union Pump Co. v. Allbritton, 898 S.W.2d 773 (Tex. 1995). As an example of “substantial factor” being employed to broaden the scope of “but for” causation, see Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332 (Tex. 2014). 22. Id. at 776. 23. Leon Green, DUTIES, RISKS, CAUSATION DOCTRINES, 41 TEX. L. REV. 42 (1962). 24. Rogers v. Zanetti, 518 S.W.3d 394, 411 (Tex. 2017); Alarcon v. Alcolac Inc., 488 S.W.3d 813, 819 (Tex. App.—Houston [14th Dist.], pet. denied). 25. C.f. HIS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). 26. RESTATEMENT (THIRD) OF TORTS: PHYSICAL AND EMOTIONAL HARM § 29, cmts. a-d (AM LAW INST. 2010). 27. Nixon, supra, at 549-50. 28. RESTATEMENT (THIRD) OF TORTS: PHYSICAL AND EMOTIONAL HARM § 29, cmt. d (Am Law Inst. 2010) 29. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 857 (Tex. 2009).

D. Conclusion Quite obviously, this brief inquiry into the causal questions inherent to tort actions is intended as neither definitive nor complete; the reader should seek far better sources for those considerations. Nonetheless, one hopes that the reader leaves with an understanding of the common law origins of the causal question, complete with the rote application of a vague and misleading Latin maxim applied more as a trump card to cover a judicial decision as opposed to any workable standard for assessing causation. thehoustonlawyer.com

July/August 2018



treatment, or other claim to departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”1 Quite a few attorneys call me with the question of whether their client’s claim against a health care provider falls under the requirements of Chapter 74. With one exception, I tell them to follow the procedural requirements, rather than risk an appellate challenge. My one exception— involving cows and car wrecks—is also a case illustration of how far some health care defendants have gone to try to stretch the applicability of Chapter 74. It all started with a car wreck in the Dallas area.2 Cattle strayed onto a road. A pickup truck traveling on the road hit at least one of the cattle and rolled over eight times. The passenger in the pickup truck was injured in the accident and sued the owner of the cattle and property from which the cattle had escaped. The suit was based on negligence and negligence per se. The property owner, a physician, filed a motion to dismiss under Chapter 74 and sought attorney’s fees. The plaintiff had not served an expert report as required by the Chapter. The defendant claimed he should benefit from Chapter 74 simply because he was a physician. The trial court denied the motion to dismiss and the physician appealed. The Dallas Court of Appeals dismissed the appeal and awarded the plaintiff sanctions because the physician pursued a frivolous appeal. If you are considering a case with facts as outlandish as cows and a car wreck, then it probably is not a health care liability claim. In most other circumstances, however, it is better to be safe than sorry.

Chapter 74 Almost Always Applies A health care liability claim includes any cause of action against a “health care provider or physician for treatment, lack of

Chapter 74 has a Tolling Mirage The first challenge of the Chapter 74 toll road relates to the notice of claim and limitations. Health care liability claims have a twoyear statute of limitations.3 If a health care

By Robert W. Painter

The Health Care Liability Claim Pre-suit Notice and Authorization Trap exas Civil & Practice Remedies Code, Chapter 74, governs health care liability claims. Many attorneys consider health care liability claims to be synonymous with medical malpractice cases, but the statutory definition is more expansive, and navigating when and how it applies can cause some pitfalls.

liability plaintiff files suit within the twoyear limitations period, then the perils of the notice of claims process can be easily avoided. This, by far, is the best practice. Problems arise, though, from the inviting language of Section 74.051(c) that tempts plaintiffs and their lawyers with a tolling provision: “Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of notice, and this tolling shall apply to all parties and potential parties.”4 Beware, though, because the Chapter 74 tolling provision is not straightforward. Notice Letter Plus Not-Just-Any Authorization The statutory 75-day tolling provision is triggered as “to all parties and potential parties” when a health care liability claimant gives written notice of the claim by certified mail, return receipt requested, to each physician or health care provider who is a potential defendant.5 Until 2016, defendants routinely challenged tolling applicability when a health care liability plaintiff served proper presuit notice on one, but not all, defendants. Fortunately, it is now settled that proper pre-suit notice to one health care liability defendant tolls the statute of limitations as to all defendants.6 This leads to the next battleground, which is what it takes to provide proper notice. The most recent courthouse skirmishes have focused on the authorization form for release of protected health information contained in Section 74.052, which “must” accompany the written presuit notice. In statutory construction, the word “must” creates or recognizes a condition precedent7 and creates a duty or obligation.8 Therefore, if the statutory authorization does not accompany the notice, then tolling of the statute of limitations may not be utilized.9 House Bill 2891 re-worked the statutory authorization form, which became effective on June 9, 2017. The statute requires that a notice letter “must be accompanied by a medical authorization in the form

specified by this section.” Note the lack of customary wiggle room in the language of Section 74.052. Other laws, such as the one authorizing unsworn declarations, allows the use of language that is “in substantially” the form suggested by statute.10 For Chapter 74 authorizations, it is not enough to be substantially compliant with the statutory form. The Waco court of appeals described it like this, “‘substantial compliance’ does not permit a party to ignore statutory requirements.”11 Unfortunately, the new Chapter 74 form has some practical problems. It contains a blank for the patient’s place of birth, which no healthcare provider ever needs. Yet, it omits blanks for the patient’s Social Security number and date of birth, both of which are usually required for a release of records. Regardless of these issues, the only safe harbor is to serve an authorization form that tracks the statutory language verbatim. Comprehensive Authorization Now that we have settled what the Chapter 74 records release or authorization of protected health information should look like, we can move on to what it must contain. The statute requires the health care liability plaintiff to provide two separate listings of names and addresses of physicians and healthcare providers on the authorization form. The first list is for those physicians and healthcare providers who examined, evaluated, or treated the patient in connection with the alleged injuries that are the subject of the claim. The second list is for those who examined, evaluated, or treated the patient during the five years prior to the incident made the basis of the notice. A statutory authorization form that provides only a portion of the required health care information does not toll the statute of limitations. The First Court of Appeals found a Chapter 74 authorization insufficient when it omitted prior treaters and numerous persons and entities involved in the surgery at issue and subsequent care.12 The same court ruled in a separate opinion that

the plaintiff’s service of a “medical authorization with the information she had available at the time” was insufficient because it did not identify all prior and subsequent treaters.13 A health care liability plaintiff whose statutory authorization omits any of the required information from the two required lists of physicians and healthcare providers faces the substantial risk that the trial and appellate courts will find that the notice and authorization form are together insufficient to toll the limitations period.14 Based on the growing line of appellate opinions addressing the insufficiency of Chapter 74 authorizations, prudent plaintiffs’ attorneys will counsel their medical malpractice clients both orally and in writing that the statutory authorization is not a pro forma form. What Level of Authorization Detail is Enough? The legislature created the health care liability claim pre-notice and authorization requirements with the stated intent of encouraging pre-suit negotiations and avoiding unnecessary litigation. Numerous appellate courts have provided this rationale: “[t]he notice requirement’s purpose of obtaining information is not fulfilled if [the defendant] is deprived of the opportunity to explore [the plaintiff’s] past medical history, including these preexisting conditions, for purposes of evaluating (and potentially settling) his claim.”15 I have anecdotally heard of some health care liability defendants taking the position that the statutory authorization must separately list every physician who saw the patient during relevant hospitalizations, even if they never saw the patient outside the hospital. This is an extreme position that makes little sense under existing law. A more reasonable approach, which also satisfies the underlying public policy goals of the statute, is to list separately every physician or health care provider who saw the patient outside a hospital setting, in addition to each hospital where the patient was treated during either relevant thehoustonlawyer.com

July/August 2018


time period. This type of disclosure on the authorization form affords potential defendants the opportunity to obtain and review all relevant medical records during the pre-suit notice period. The Bottom Line on Chapter 74 If you want to represent a plaintiff in a health care liability or medical malprac-


July/August 2018


tice matter, work up the case quickly and do everything reasonably possible to file a lawsuit within the two-year statute of limitations. When faced with unavoidable facts that require reliance on the Chapter 74 tolling provision, start by using the exact medical records release authorization contained in Section 74.052. Counsel your client in writing on the importance of complete disclosure and your reliance on them for physician and healthcare provider information. Finally, make sure to send your notice letter and authorization form to all potential defendants by certified mail, return receipt requested before the two-year limitations period expires.

Robert W. Painter is an attorney at Painter Law Firm PLLC, where he represents plaintiffs in medical malpractice lawsuits. He is a former editor-in-chief of The Houston Lawyer. Endnotes

1. TEX. CIV. PRAC. & REM. CODE § 74.001(13) 2. Archer v. Tunnell, No. 05-15-00459-CV (Tex. App.—Dallas Feb. 9, 2016, no pet.) (not designated for publication). 3. See TEX. CIV. PRAC. & REM. CODE § 74.251(a). 4. See id. § 74.251(c). 5. Id. § 74.051(a). 6. See Kovaly v. Kuruvanka, 497 S.W.3d 539,550 (Tex. App.—Houston [1st Dist.], pet. denied). 7. TEX. GOVT. CODE § 311.016(3). 8. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). 9. Carreras v. Marroquin, 339 S.W.3d 68, 71 (Tex. 2011). 10. TEX. CIV. PRAC. & REM. CODE § 132.001. 11. Borowski v. Ayers, 524 S.W.3d 292, 305 (Tex. App.—Waco, pet. denied). 12. Davenport v. Adu-Lartey, 526 S.W.3d 544, 554 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). 13. Johnson v. PHCC-Westwood Rehabilitation & Health Ctr., LLC, 501 S.W.3d 245, 251 (Tex. App.—Houston 1st Dist.] 2016, no pet.). 14. Mitchell v. Methodist Hospital, 376 S.W.3d 833, 838 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). 15. Id.

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July/August 2018


By Allison Standish Miller

Assessing the Status of the AttorneyClient Privilege in the Age of Twitter


ttorney–client privilege is dead!” It may be hard to believe, but President Donald Trump tweeted out this declaration only a short time ago, on April 10, 2018. It received over 104,000 likes and over 26,000 retweets. The FBI and other members of law enforcement had conducted an earlymorning raid of the president’s personal attorney’s office and residence, and the president, apparently believing that any-

thing communicated to or through a lawyer was untouchable, took to Twitter to express his displeasure. Although the non-lawyer public quickly turned its attention to other matters, the tweet sent a shockwave, albeit a minor one, rippling through the legal community. Lawyers across the country discussed it over coffee, on various op-ed pages and blogs, and even at law schools, wondering: Is something so fundamental to our system of justice really a thing of the past? Logically, and practically, we know that is not true. But—especially for those of us who practice in the professional liability world—those five words raise various questions not just about the current status of the privilege, but also about why it exists in the first place, how much the privilege really does protect, and why the public has certain misconceptions regarding what so many of us take for granted as part of our professional lives. A quick reminder of the actual text of Rule 503(b)(1), the “General Rule” on attorney-client privilege, is instructive here: General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client: A. between the client or the client’s representative and the client’s lawyer or the lawyer’s representative; B. between the client’s lawyer and the lawyer’s representative; C. by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action; D. between the client’s representatives or between the client and the client’s representative; or E. among lawyers and their representatives representing the same client.1 The client, the client’s guardian or con-

servator, the personal representative of a deceased client, or “the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence” may claim the privilege.2 Lawyers may claim the privilege on their clients’ behalf, and are presumed to have the authority to do so.3 Even though the privilege is not one of our enumerated constitutional rights, it is without question an integral part of our legal system. Indeed, many of us, almost as a knee-jerk reaction, describe the privilege as “sacrosanct.” For instance, Fourteenth Court of Appeals Justice Ken Wise, who also served a number of years as a Harris County District Court judge, remarked that it is “critical to the process that the sides in an adversarial proceeding need a place where they can not be adversaries.” Houston attorneys have expressed their views on the privilege as being foundational to the practice of law. “The privilege is vital to virtually every conversation I have with a client and often with other defendants,” said Erica Harris, a Houstonbased partner at Susman Godfrey. “No one could speak freely if there was not a promise that questions asked and words spoken could not be used against you later.” According to solo practitioner Shelly Durham, the attorney-client privilege “plays a very frequent role” in family law cases as well. “Whether we are dealing with clients admitting to having had affairs, issues regarding parentage of children, drug use by a client, discipline of children, etc., there are a lot of secrets in familial relationships, and it is crucial that the attorney be made aware of the facts in order to properly address them or not address them within the case.” As attorneys we (should) know that merely copying a lawyer on an email does not magically make the communication privileged. This practice is nevertheless routine. As reflected in the Rule, communications must be made “to facilitate the rendition of professional legal services to the client” in order to be privileged.4 If they are not, the com-

In a similar vein, not all communications and documents related to internal corporate investigations are protected by the attorney-client privilege or its companion, the attorney work product exemption.7 Likewise, drafts of documents may not necessarily be protected if they are not made, prepared, or developed “in anticipation of litigation or for trial.”8 Corporations and their counsel must therefore proceed with tremendous caution. Interestingly enough, not every country enjoys the protections of the attorney–cli-

munications are subject to discovery. Likewise, the privilege does not apply to communications made to a lawyer who has been hired in a non-legal capacity.5 To that point, “[a] client’s dirty laundry isn’t privileged just because he asks his lawyer to wash it,” appellate lawyer Peter Kelly of Kelly Durham & Pittard said. “The privilege is supposed to protect the communication of legal advice, not everything the lawyer does with his client in mind.” It is for this reason, among others, that the crime-fraud exception exists.6

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July/August 2018


ent privilege. Lawyers are statutorily duty-bound to keep client communications confidential in many countries whose law is code-based rather than founded upon common-law, but the communications themselves may not be privileged.9 It is thus crucial for in-house and outside counsel alike to be aware of the rules and regulations in the various jurisdictions in which they practice. Yet rules regarding the privilege vary even within the continental United States. “I find it interesting that the scope of privilege among defendants and potential defendants is more limited under Texas law than that under federal or other states’ laws,” Harris said, warning that this can be “a likely trap for the unwary.” As we all learned soon after the April 10 FBI raid on President Trump’s attorney, Michael Cohen, the government has built specific protections and precautions into its seizure of potentially-privileged information from attorneys like Cohen.10 These protections and precautions—in no doubt due to the power and importance of the privilege—require special levels of permission to obtain such a warrant, and special levels of protection to review seized information and materials.11 Joel Androphy, who practices both criminal and civil law at the Houston boutique firm Berg & Androphy, spends a large portion of his time on the prosecution of qui tam private whistleblower cases, many of which involve complex and delicate issues surrounding the privilege. “The government is sensitive to privilege,” Androphy said. “When [the United States Attorneys for the Southern District of] New York did what they did [in Mr. Cohen’s case], they had a very valuable reason for doing it.” We are certain to hear more of these issues in the coming months, not only as details of Special Counsel Robert Mueller’s and the Southern District of New York’s investigations are made public, but also as the civil litigation relating to the nondisclosure agreement drafted by Cohen progresses. Given the circumstances surrounding it, the president’s tweet indicates that not 20

July/August 2018


just he, but many Americans may carry various misconceptions about the scope of information that the attorney-client privilege is designed to protect. Although these individuals may believe that any communication made to a lawyer is privileged and therefore protected, certain other clients are reluctant to accept that the privilege truly protects them at all. “In my practice, it can be difficult to get clients to open up and realize communications are confidential,” said Fred Dahr, a solo criminal practitioner. “They think I might pass on to the DA something negative or inculpatory. Another difficult issue is when a parent Shauna Johnson Clark or a grandparent pays the fee for a child/ grandchild client and the client feels pressure not to be honest with me[,] fearing the story will make them look bad to their relative.” Rest assured, however, recent case law confirms that the privilege is alive and well in Texas. In February of this year, the Texas Supreme Court confronted the issue of “who may qualify as a lawyer for purposes of the privilege,” deciding whether Rule 503 protects communications between patent agents and clients.12 In the case, Andrew Silver, an inventor, sued Tabletop Media LLC, claiming that Tabletop had failed to pay him for his invention. Tabletop then sought production of communications between Silver and his patent agent, in response to which Silver asserted the attorney-client privilege. Even though patent agents and patent attorneys alike must be licensed to practice before the United States Patent and Trademark Office, Tabletop asserted that patent agents are not attorneys, and the Rule’s protections do not apply. After trial court and a divided panel of the Dallas Court of Appeals agreed, Silver sought review in the Supreme Court, where a number of amici weighed in. In performing its analysis, the Court examined Rule 503’s definition of “lawyer” and the role of the patent agents, stating that “the issue is not the creation of a new patent-agent privilege but rather whether the existing lawyer-client privilege extends to communications between a registered patent agent and the agent’s

client.”13 The Supreme Court reversed, holding that “because patent agents are authorized to practice law before the USPTO, they fall within Rule 503’s definition of ‘lawyer,’ and, as such, their clients may invoke the lawyer-client privilege to protect communications that fall within the privilege’s scope.”14 In December of last year, the El Paso Court of Appeals clarified the related issue of who qualifies as a client for purposes of the rule.15 In the case, Yvette Delgado sued her employer, DISH Network, claiming discrimination and retaliation. During discovery, Delgado sought production of documents and communications regarding various employment-related lawsuits against DISH, which included communications between DISH’s outside counsel and Delgado in her role as human resources manager. Delgado was not personally named a party to any of the proceedings. The employer asserted the attorney-client privilege, claiming that even though Delgado was a party to the communications, no attorney-client relationship between Delgado and DISH’s outside counsel existed. Accordingly, the communications belonged to DISH and were thus protected under the Rule. The Court of Appeals reversed the trial court’s order granting Delgado’s motion to compel production, finding that neither an express nor an implied attorney-client relationship existed between Delgado and DISH’s outside counsel. The Court also found that the joint client exception to the Rule, which protects communications “offered in an action between clients who retained or consulted a lawyer in common” did not apply given that Delgado’s involvement “solely as a representative of DISH in the course and scope of her employment” did not render her a client for purposes of the Rule.16 A similar question in the First Court of Appeals’s In re Rescue Concepts, Inc. decision regarded the application of the Rule in light of the capacity in which a lawyer functioned, i.e., whether the lawyer acted as a lawyer or in some other role in making the communications at issue.17 In the case, a buyer of real estate brought a

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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 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

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Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz 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

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. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Sidley Austin LLP Shortt & Nguyen, P.C. Trahan Kornegay Payne, LLP

Individual Champions

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


July/August 2018


breach of contract action against the seller; the seller then brought claims against the buyer’s real estate broker. The broker eventually sought communications between the seller and the seller’s attorney during contract negotiations, claiming that because the attorney functioned solely as a


July/August 2018


real estate agent or broker, and not in a legal capacity, the communications were not privileged. After conducting the required in camera review, the trial court agreed. The Court of Appeals conducted its own in camera review and reversed, holding: (1) that the lawyer-agent provided legal services; and (2) that the communications at issue were made “for the purpose of facilitating the rendition of professional legal services.”18 The broker has sought mandamus relief of the First Court of Appeals’ ruling in the Texas Supreme Court.19 The case should be closely watched not only by attorneys who wear

multiple hats in the real estate context, but in any field in which they may assume dual roles. If nothing else, the president’s tweet raised the public awareness of the privilege and, one hopes, has increased its understanding of what it means and who it protects. “Now more than ever, when everything is public, litigants need a place where they can feel that their communications truly are protected,” Justice Wise said. Although the world often feels like it moves at the speed of Twitter, lawyers and non-lawyers alike can take comfort knowing that the attorney-client privilege, one of the most important elements in the foundation of our profession, holds firm. Allison Standish Miller is a trial attorney at Beck Redden, LLP. Her practice also encompasses appellate work and representation of attorneys in State Bar grievance proceedings. Endnotes

1. Geoffrey TEX. R. EVID. 503(b)(1).

2. 3. 4. 5.

TEX. R. EVID. 503(c). Id. TEX. R. EVID. 503(b)(1). See, e.g., In re Bivins, 162 S.W.3d 415, 419–20 (Tex. App.—Waco 2005, orig. proceeding); Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 332 (Tex. App.—Austin 2000, pet. denied). 6. See TEX. R. EVID. 503(d)(1). 7. See TEX. R. CIV. P. 192.5; In re Fairway Methanol, 515 S.W.3d 480, 494 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). 8. See TEX. R. CIV. P. 192.5; see also, e.g., In re Tex. Windstorm Ins. Ass’n, No. 14–16–00677–CV, 2016 WL 7234466, *3 (Tex. App.—Houston [14th Dist.] Dec. 13, 2016, orig. proceeding) (mem. op). 9. See, e.g., Privilege: a world tour, Practical Law UK Articles 2-103-2508, by Diana Good, Patrick Boylan, Jane Larner and Stephen Lacey, Nov. 18, 2004. 10. See, e.g., Ryan Lucas, “Does FBI Raid on Trump Lawyer Cohen Mean Attorney-Client Privilege Is ‘Dead’?,” NPR, available at https://www. npr.org/2018/04/10/601153729/does-f bi-raidon-trump-lawyer-cohen-mean-attorney-clientprivilege-is-dead (last visited June 27, 2018). 11. See id. 12. In re Silver, 540 S.W.3d 530, 533 (Tex. 2018). 13. Id. 14. Id. at 538. 15. In re DISH Network, LLC, 528 S.W.3d 177, 180–84 (Tex. App.—El Paso 2017, orig. proceeding). 16. TEX. R. EVID. 503(d)(5); In re DISH Network, 528 S.W.3d at 186–87. 17. In re Rescue Concepts, Inc., ---S.W.3d---, No. 01– 06–00564–CV, *1 (Tex. App.—Houston [1st Dist.] Sept. 19, 2017, pet. filed) (orig. proceeding). 18. Id. at *3–4, 10–11. 19. See No. 18–0480, In re Jones Lang LaSalle-Texas, Inc., in the Supreme Court of Texas

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July/August 2018


By Benny Agosto, Jr.

Golf Cart Ejections:

Injuries and Deaths on the Rise


olf courses, airports, malls, churches, schools, beaches and communities all over the country have seen an increase in use of golf carts and transportation carts. The use of this transportation has become part of our culture. While the overall safety record of golf carts is not tracked nationally, some people are concerned about how they are used.

The Statistics Last year, according to the Consumer Product Safety Commission (CPSC) approximately 18,000 Americans were sent to the emergency room for injuries sustained in golf cart accidents.1 One significant mode of injury in golf cart accidents is passenger ejection, which can lead to serious injuries, especially to the head. Based on the CPSC statistics, roughly 40% of golf cart accidents involve a person falling out of the cart, and many of these accidents involve young children. In addition to ejection accidents, approximately 10% of golf cart accidents involve a rollover, and statistics indicate that such accidents are roughly twice as likely to lead to injuries requiring a hospital stay as non-rollover accidents.2 Unfortunately, this number is steadily increasing 24

July/August 2018


as golf carts today are used in a variety of settings, both on and off the golf course. In a study led by the Center for Injury Research and Policy, the number of cartrelated injuries rose by a staggering 132% from 1990 to 2006.3 A major factor for this increase is that while golf carts are more often found off the putting green, industry standards still define, and design, golf carts under an incorrect assumption that they are strictly used to transport individuals in the game of golf. While this might have been true at one point, even major golf cart manufacturers such as Club Car acknowledge that golf cart owners now include “families who live in gated communities, automotive dealers, apartment complexes, and other

individuals and business owners” as an example. Club Car’s product line now boasts stretched, six passenger golf carts to accommodate more passengers and owners who have no intention of ever using these vehicles on a golf course. Under the current golf cart industry standards, manufacturers are still permitted to sell tens of thousands of golf carts to the public annually without any basic safety features like seatbelts, overhead handles, roll bars or handrails.4 Presenting the Case to the Jury A practicing attorney will not fully understand the extent of the client’s injuries unless one sees an x-ray of the client’s head post-accident. The x-ray itself may not seem to show significant injuries at first blush, so I utilize a method of colorization of x-rays that proves to be captivating to jurors. It is shown in the demonstrative below. The use of this type of demonstrative evidence can be admitted at trial through a medical expert. The jury will quickly start to get a picture of why golf cart ejection injuries can be so devastating. The most common golf cart ejection injuries observed in clients include fractures to arms, shoulders and upper extremity region; intracranial injuries, including concussion and hemorrhage are often observed.

Traumatic Brain and Head Injuries Approximately 1.7 million people sustain a traumatic brain injury in America each year. A person does not have to be traveling at high speed or strike a hard object to sustain a traumatic brain injury.5 Accidental falls have always been a cause for concern. According to the Center for Disease Control (CDC), nearly 20% of falls result in some type of injury. In the United States, accidental falls are the most common cause of non-fatal injuries in people over the age of 65. Additionally, 3 million older patients are treated in emergency rooms across the country for falls, and 800,000 patients are hospitalized for falls each year.6 Warning signs of a serious brain injury include: • Loss of consciousness, • Confusion and short-term memory loss, • Unusual sluggishness, • Nausea and dizziness, and • Weakness/numbness of one side of the body. Of course, it is crucial that a person suffering from any of the above symptoms, or is likely to be suffering from a traumatic brain injury, seek medical attention as soon as possible. Golf Carts on Public Roads Golf carts are not designed for use on public roads. However, there is an ever growing number of municipalities that have ordinances that allow carts on public roads. It must be noted that because of the lack of safety regulations over golf carts, combined with serious and sometimes fatal traumatic brain injuries, this is a serious cause for concern. One common scenario for a passenger ejection accident occurs when a cart, traveling near its maximum speed, is turned sharply to the left. During a sharp left turn, centrifugal force tends to eject the passenger to his or her right. Sharp turns are less likely to lead to a driver ejection, because the driver has the steering wheel to hold on to and can always anticipate when he or she is about to initiate a turn.7

Recently, as an example, a Houston resident, Bobbie, became another unsuspecting victim to the latent dangers that golf carts pose. Bobbie and her husband had just enjoyed an evening concert hosted by the Houston rodeo when a volunteer driving the couple back to their vehicle in one of the stretched cart transportation vehicles, a six-passenger golf cart, made a sharp left turn. The force of the turn in the absence of basic safety features caused Bobbie to be thrown from the cart and fall headfirst onto the pavement of the parking lot. The injuries Bobbie sustained to her head in the fall left her in a coma for over two years, before she passed. Children’s Safety Children are often victims of golf cart ejection accidents. Without seatbelts, children are prone to falling and sliding off the golf carts. Certainly, children should never drive golf carts unsupervised. The Consumer Product Safety Commission injury statistics indicate that approximately 40% of all golf cart related accidents involve children less than 16 years old, and 50% of these involve a fall from a moving cart. As a result, children represent a dramatically large portion of all ejection accident victims.8 Since there are currently no occupant restrictions or seatbelt requirements for these vehicles set forth in the applicable safety standard or the manufacturer’s operating manual, young children of any age are often permitted to ride in open, offroad vehicles that are capable of traveling up to 20 mph on the flat ground and not equipped with seatbelts. The results of this behavior are in great part the cause of injuries.9 Kristopher J. Seluga, a partner at Technology Associates, a forensic engineering consulting firm, has expressed his concerns that the numbers might actually be higher because of underreporting. “Many fatality victims don’t survive long enough to make it to the emergency room,” he said. “When that happens, they don’t end up in the CPSC data.” Seluga estimates that because of increased use, the number of acci-

dents has increased steadily in recent years while the number of injuries has roughly tripled since 1991.10 Legal Claims There are numerous claims and causes of actions that can be brought for golf cart ejection cases. The typical complaint or petition is filed against the driver and his or her employer, the owner of the cart, premises owner, golf cart distributor and seller, cart modifier and manufacturer. Particular attention must be placed on specific standards in the industry for two-, four- and 6-passenger carts. Key question: Was the cart modified post fabrication and distribution by the manufacturer? Practitioners will frequently find that carts that have been modified fail to comply with basic safety and industry standards. Conclusion Although the use of golf carts for transportation has become part of our culture, the dangers of these vehicles are much less known to the public. For this reason, litigators handling golf cart ejection cases should explore the science behind the mechanism of injury, as golf cart related injuries and deaths are on the rise. Benny Agosto, Jr. is a partner of the Houston law firm Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz. He is a trial lawyer, board certified in personal injury trial law. He can be reached at bagosto@abrahamwatkins.com. Endnotes

1. Tanya Mohn, The (Mostly) Safe Golf Cart, NY Times Online (Mar. 4, 2017), available at http:// mobi le .ny t i me s.c om / 2 017/ 03 / 0 4/ bu s i ne s s / retirement/the-mostly-safe-golf-cart.html. 2. Kristopher Seluga, Golf Cart Occupant Ejections (Aug. 2, 2017, 10:34 AM), available at http://www. technology-assoc.com/articles/gulf-cart-hazards. html. 3. Benny Agosto, Jr., The Impact and Concerns of Traumatic Brain and Head Injuries, http://www.abrahamwatkins.com/blog. 4. Seluga, Supra, note 2. 5. Agosto, Supra, note 3. 6. Ibid. 7. Seluga, Supra, note 2. 8. Benny Agosto, Jr., Golf Cart-Related Injuries and Deaths on the Rise, http://www.abrahamwatkins. com/blog. 9. Mohn, Supra, note 1. 10. Kristopher Seluga, Analysis and Prevention of Child Ejections from Golf Cars and Personal Transport Vehicles, Accident Research & Biomechanics, Paper No. 09-0186; See also, Mohn, Supra note 1.


July/August 2018


Meet New HBA President Warren W. Harris

The Houston Lawyer talked to the 2018-2019 president about his family, legal career and goals for the new bar year. THL: Where were you born and where did you grow up? Harris: I am a native Houstonian. I was born and raised on the east side of Houston and graduated from North Shore High School. THL: Tell me about your family. Harris: My wife, Lauren, provides support and encouragement for me to do this and everything else I do. Not only is she a wonderful wife and mother, but she is also an outstanding appellate lawyer who practices at Porter Hedges L.L.P. We have twin boys and two daughters, Walker (15), William (15), Elizabeth (13), and Caroline (9), who all attend St. John’s School. The boys, who are both working on their Eagle Scout rank, just received their driving permits so our entire family is a little nervous right now! Elizabeth plays club lacrosse, and Caroline enjoys playing soccer (especially when her dad is coach). Our kids love to travel, and their favorites are beach and ski trips. My mother- and father-in-law, Judy and David Beck, stop by frequently to spending time with their grandchildren. I am the youngest of five children. My oldest sister, Janet, and my brother, Dan, also enjoy spending time with us and the kids. THL: Where did you go to college and law school? Harris: I received a Bachelor of Business Administration in finance from the University of Houston. I attended law school at the University of Houston Law Center. THL: How did you become interested in law as a career? Harris: I wanted to be a lawyer for as long as I 26

July/August 2018


The Harris fa Caroline, Eliz mily at the HBA Annu al Dinner: W abeth and W illiam, Laure alker. n, Warren,

can remember, although I am not sure what triggered that desire. I also had an interest in law enforcement. While in college, I attended the Sheriff’s academy and joined the Harris County Sheriff’s Department as a reserve deputy. I have worked in patrol and many other areas of the department, and have served as a lieutenant in the reserves since 1985. One of my community service roles with the department is leading a team of deputies who every Easter and Christmas deliver stuffed animals to children in local hospitals. THL: What is your area of specialty and with what firms have you worked in your legal career? Harris: I have an appellate practice with Bracewell LLP and head the firm’s appellate group. In addition to handling appeals with my firm’s lawyers, much of my practice involves handling appeals from cases that were tried by other firms. A significant part of my practice also involves serving as the appellate lawyer during trials. I have practiced at Bracewell since 1996 and previously practiced at Porter Hedges L.L.P. After law school, I served as a briefing attorney to the Supreme Court of Texas. THL: Who were your mentors? Harris: Through my legal practice and bar activities, I have had the privilege of working with many great lawyers. I was a law clerk for Justice Eugene Cook on the Texas Supreme Court who taught me the importance of serving our profession and shared many important lessons about the practice of law and about life. While working on my first HBA committee I met Lynne Liberato who, for nearly 30 years, has

been a trusted advisor on bar, appellate practice, and personal fronts. Working with great trial lawyers like Fred Hagans has taught me much about the law, advocacy, and professionalism in the practice of law. I have also been fortunate to practice at Bracewell with extremely talented and smart appellate lawyers, such as Justice Brett Busby, Jeff Oldham, and Yvonne Ho, who have imparted their wisdom over the years. THL: How did you get interested in volunteering with the bar? Harris: I have always had a strong interest in serving the community, and when I became a lawyer that naturally extended to serving the bar. I joined The Houston Lawyer Committee in 1989 and I was hooked on the HBA. I became active in the HBA Appellate Practice Section and served as chair. I have also been active in other bars, including being a former president of the Houston Young Lawyers Association. THL: What do you think is the role of the organized bar in society today? Harris: The bar has a duty to educate the public on the rule of law and the importance of lawyers in our society, to protect the rule of law, and to ensure access to justice for the poor. The bar must provide lawyers the programming to fulfill these duties. The bar also must ensure that new lawyers are adequately trained to serve their clients and that they demonstrate professionalism in their practice, and a mentoring program is the best way to do that. The HBA gives every newly-licensed

lawyer in Houston a free membership and encourages them to join our mentoring program.

join the HBA. The HBA has also established a generational THL: What do you see as the role task force to focus on of the president in the Houston Bar recruiting, retaining, Association? and responding to the Harris: An important question that I focus on needs of its members. as president is: what is the HBA’s mission? The HBA has a variety The HBA exists to serve the needs of Housof great programs, and ton lawyers. We accomplish our mission by will work to ensure its including all lawyers in our efforts to promote programs are focused professionalism, the rule of law, and access to on the HBA’s mission of justice. We also educate the profession and the serving Houston lawyers. public on legal issues, and we serve the comWe will strengthen our munity through law-related service projects. efforts to assist and proTo address the fundamental issues that mote the activities of the Department nty Sheriff’s g a team ou C s ri ar H e will shape the HBA in the years ahead, I have sections. Because over utenant in th e roles include leadin pitals at os rvic serves as a lie chaired a strategic planning task force that has 8,600 HBA members are Warren still ere his community se s to children in local h h al w im s, an ve ed er ff u es R st examined how we can best fulfill he HBA’s misalso section members, the who deliver of deputies Easter. sion. The report of the task force was recently sections are an important d an Christmas communication is that lawpresented to the board of directors. As the year part of our organization. As yers talk with each other much less. A result progresses, you will hear more about this straone way to support the secis often decreased professional courtesy; it is tegic plan and see how we focus the HBA on tions, The Houston Lawyer will have a feature much easier to send a nasty email than to say its mission. issue on sections and section leaders and those things to another lawyer. promote sections throughout the year. The THL: What areas will you focus on sections will also be included in the year-end THL: What do you like to do outside the during your administration? President’s Awards. practice of law? Harris: I will focus on serving the needs of Because professionalism is important to Harris: Spending time with our children and Houston lawyers, assisting HBA sections, and maintaining public confidence in the legal protraveling with them are great joys. Our kids promoting professionalism. The HBA’s top fession and the rule of law, the HBA will take love to ski and we enjoy family ski trips. Wine priority is to serve Houston lawyers. We must several steps to promote professionalism. is a big hobby. In addition to enjoying and colensure the HBA brings value to its more than Mentoring is critical to increasing professionlecting wine, I have chaired wine committees 11,000 members and remains relevant to all alism, and the HBA will expand its mentoring at private clubs and am active in local and inHouston lawyers, whether they are solos or program to reach even more newly-licensed ternational wine organizations. I also enjoy atpractice at a big firm, government agency, or attorneys. As another way to bring attention to tending college football games. Before kids, I a corporation, and whether they are litigators professionalism, the HBA has created the Jusseemed to have a little time to play golf. or transactional lawyers. The HBA is reviewing tice Eugene A. Cook Professionalism Award to its membership process to be sure it is prohonor lawyers and judges who have demonTHL: Are you involved with other profesviding current members excellent benefits and strated a lifelong commitment to professionalsional or community organizations? encouraging all Houston lawyers to ism. The HBA will also expand its professionalHarris: I co-chair the Houston nominating ism programming. committee of the Texas Bar Foundation and am president-elect of the University of Houston THL: What do you Law Foundation. I am a past president of the think has changed the Texas Supreme Court Historical Society and most about the prachead its Taming Texas educational program, a tice of law since you judicial civics and court history project aimed became licensed? at seventh-grade students. We have published Harris: In the 30 years two Taming Texas books, with a third book in since I was licensed, progress, and have developed a classroom there have been significant curriculum that is taught in Houston-area changes in the practice schools by HBA Teach Texas volunteers. of law such as increased mobility and the increasing THL: Is there anything else you would pressures on the business like to bring out in this interview that is side of practicing law. The important to you? most notable change may be Harris: I am proud to be a lawyer and of all technology. Now everything The Harris fa the good work that lawyers do. I am honored happens in real time and you mily enjoys b venues like Deer Valley, oth ski trips and trips to to serve as HBA president and am excited for are always connected. Another Utah, left, an d The Baths the beach, at the year ahead. result of email and electronic at Virgin Gorda Bay


July/August 2018


Warren Harris W Takes Office as HBA President

arren W. Harris of Bracewell LLP took office as the 2018-2019 president of the Houston Bar Association at the organization’s Annual Dinner Meeting on May 17 at River Oaks Country Club. He succeeded Alistair Dawson of Beck Redden LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Dawson presented the President’s Awards to outstanding committee and program chairs for 2017-2018, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar year. The HBA also presented its inaugural Justice Eugene A. Cook Professionalism Award (see story on page 30). Dawson recognized Mayor Sylvester Turner and Harris County Judge Ed Emmett for their outstanding service to the area during Hurricane Harvey, and the Hon. Robert Schaffer, the Hon. Sylvia Matthews, the Hon. David Farr, the Hon. Susan Brown, and the Hon. Paula Goodhart for their outstanding work in getting Harris County’s courts running after the storm, despite extensive damage Shauna Johnson Clark to court buildings. Photos by Temple Webber Photography

Alistair Dawson, left, presents the gavel to new HBA President Warren Harris.

Harris is joined by his wife, Lauren Beck Harris, along with Wendy and Alistair Dawson.

Harris County Judge Ed Emmett, shown with his wife, Gwen, was honored for his dedication to Harris County throughout Hurricane Harvey. Dawson presents a check for proceeds from the 2018 John J. Eikenburg Law Week Fun Run to Eric Nordstrom, HBA member and member of the board of directors for The Center. This year’s event raised $78,704 for The Center, providing opportunities for individuals with intellectual and developmentally disabilities.

Members of the Harris County Judiciary who were serving as administrative judges for their respective divisions were recognized for extraordinary efforts in getting Houston’s courts open after the storm: the Hon. Robert Schaffer, Harris County Administrative Judge; the Hon. Susan Brown, Criminal District Courts; the Hon. Sylvia Matthews, Civil District Courts; Dawson; the Hon. Paula Goodhart, Harris County Courts at Law; and the Hon. David Farr, Family District Courts. Ashley Turner, the daughter of Mayor Sylvester Turner, represented her father in accepting his award for outstanding service to the city during and after Hurricane Harvey. 28

July/August 2018


50-Year Lawyers 50-year lawyer Richard Brann and his wife, Penny

50-year lawyer Ben L. Aderholt

50-year lawyer Stephen Rice and his wife, Meg

50-year lawyer Al Kimball and his wife, Rosemary

50-year lawyer Paul Van Slyke and his wife, Karen

The HBA would like to recognize all of the 50 Year Members, including those who were unable to join us for the Annual Dinner: Mr. Ben Louis Aderholt Mr. J. Currie Bechtol Mr. A.T. Blackshear, Jr. Mr. Donald R. Boehm Mr. William C. Boyd Mr. Richard R. Brann Mr. Maurice L. Bresenhan, Jr. Mr. Kenneth Wesley Burch Hon. Robert N. Burdette Hon. William Rambo Burke, Jr. Mr. K. Ray Campbell Mr. William B. Clarkson Mr. John P. Cogan, Jr. Mr. Joseph J. Colangelo Mr. James A. Crouch Mr. Daniel W. Daly III Mr. Michael Davis Mr. W. Alvin Early Mr. Theodore C. Flick Mr. J. Kent Friedman Mr. Jack C. Goldstein Mr. W. Garney Griggs Mr. David Wright Hannah, Jr.

Mr. Lester L. Hewitt Mr. Anthony L. Hodges Mr. David C. Holland Mr. John S. Hollyfield Hon. John A. Hutchison III Mr. J. Rolfe Johnson Mr. Gene Jones Mr. Norman R. Jones Mr. David R. Keyes Mr. Albert B. Kimball, Jr. Mr. Gerald L. King Mr. Thomas Kleven Mr. Kenneth D. Kuykendall Mr. W. C. Lonquist, Jr. Mr. Robert Lord Mr. Vincent L. Marino Mr. Howard Wright Mays, Jr. Mr. James Patrick McCauley Mr. Carl Owen McClenny Mr. William Talbot Miller Mr. Michael A. “Mickey” Mills Mr. W. James Murdaugh Jr. Mr. John R. Pearson

Mr. Richard A. Peebles Mr. A. Benjamin Ramsey Mr. Ronald R. Randall Mr. Stanley E. Rauhut Hon. Putnam Kaye Reiter Mr. B. Stephen Rice Mr. John A. Saur Mr. Stephen W. Schueler Mr. Allen J. Segal Mr. Frank Shaw Mr. Anthony D. Sheppard Mr. Frank Forsythe Smith, Jr. Mr. Charles Henry “Hank” Still Mr. Jack W. Thompson Mr. Marcus L. Thompson, Jr. Mr. Theodore F. Trigg Mr. Paul C. Van Slyke Mr. John Stewart Watson Mr. Benjamin Gladney Wells Mr. Timothy T. West Mr. Gordie L. White II Mr. Arthur E. Whitmer Mr. Patrick Glenn Woosley thehoustonlawyer.com

July/August 2018


President’s Awards

Alistair Dawson presented the 2018-2019 President’s Awards to outstanding committee chairs during the HBA’s Annual Meeting. Photos by Tara Shockley, HBA

John Strohmeyer, Cassandra McGarvey and Kimberly Chojnacki were honored for their outstanding work as co-chairs of the John J. Eikenburg Law Week Fun Run Committee.

Ryan Wooten and Sean Jain were honored for their outstanding work as co-chairs of the Habitat for Humanity Committee.

Courtney Scobie and Jamila Brinson were honored for their outstanding work as co-chairs of the AIDS Outreach Committee.

John Stavinoha, Matt Frogel, Louie Layrisson, Peter Danysh, Mitch Reid and Jessica Rodriguez were honored as co-chairs of the LegalLine Committee.

Elizabeth A. Campbell, Cheryl Elliott Thornton and Amanda G. Halter were honored for their outstanding work as co-chairs of the Gender Fairness Committee.

Farrah Martinez was honored for outstanding work as editor in chief of The Houston Lawyer magazine.

Justice Eugene A. Cook Professionalism Award


he HBA presented the first Justice Eugene A. Cook Professionalism Award at the Annual Dinner. The award was established by the HBA Board of Directors to recognize a lawyer or judge who exemplifies the highest level of legal ethics and a lifetime of professionalism. The inaugural recipient of the HBA President Warren Harris, Texas Supreme Court Chief award is its nameJustice Nathan Hecht, Texas Supreme Court Justice Jeff sake, the Hon. Brown, and Fred Hagans, former co-chair, Texas Supreme Court Professionalism Committee with the crystal eagle presented to Eugene A. Cook, Justice Eugene A. Cook, who was unable to attend. a former Texas Supreme Court Justice and former president of the HBA. Texas Supreme Court Justice Jeff Brown introduced the award, and Texas Supreme Court Chief Justice Nathan Hecht accepted the award on behalf of Justice Cook, who was unable to attend. “In 1989, Justice Eugene Cook proposed that the Texas Supreme Court and the Court of Criminal Appeals adopt a joint statement encouraging 30

July/August 2018


lawyer civility. He was the architect of the Texas Lawyers Creed, making Texas the first state to adopt a mandate to govern the conduct of all of its lawyers,” said Chief Justice Hecht. “The words were his, thoughtful and from the heart: ‘A lawyer should always adhere to the highest principles of professionalism.’” When Justice Cook served as president of the HBA and chair of the HBA’s Professionalism Committee, he promoted ethics and professionalism throughout Houston and the state. Justice Cook also worked with courts, bar associations, and law schools in numerous other states to promote professionalism and the value of mentoring programs. “There is no one more deserving of this award than Justice Cook,” said Texas Supreme Court Justice Jeff Brown, who introduced the award. “He was always proud to be a lawyer and worked his entire career to bolster the public’s perception of the legal profession. For all of his work, Justice Cook is often called the ‘father of professionalism’ in Texas.” Justice Cook’s work in professionalism has been recognized by other organizations. He received the Lewis F. Powell, Jr. Award for Professionalism and Ethics from the American Inns of Court, which is the preeminent national award for professionalism. Justice Cook also received the Lola Wright Foundation Award from the Texas Bar Foundation for advancing legal ethics and professionalism in Texas and the Distinguished Professionalism Award from the Texas Center for Legal Ethics and Professionalism.


A Marriage for History’s Sake:


The Houston Lawyer

By Anietie Akpan

David Furlow and Lisa Pennington

mornings in class, and their afternoons taking historical walking When he’s not busy running his law practice, attorney 1 tours in which they would visit museums, theaters and historic David Furlow spends his time making presentations to homes. prestigious members of the Texas Supreme Court HisSince that fateful summer, torical Society, teaching seventh graders about Texas David and Lisa have crafted a History, preserving historical artifacts, filming docunear-perfect professional symmentaries, and serving as Executive Editor of the Texas Supreme biotic relationship by continuCourt Historical Society Jouring to explore the past togethnal, a position he has held er. Lisa supports David in his for the past seven years. research and writing, notably David’s passion for hisabout revolts and rebellions tory—from local Texas hisagainst the Roman Empire. In turn, tory to British historical arhe supports Lisa’s genealogical and chaeology—makes him one historical projects focusing on Tudor/ of the highest respected hisStuart England and the seventeenthtorians in the legal commucentury settlement of America. nity. His reputation not only Together, they have made numergarners attention from local ous presentations at historical and arand state historical organichaeological organizations, authored zations, but also nationallyseveral papers, and are members of syndicated television chanNot your typical gingerbread house: David and his son, Ryan, built numerous historical project commitnels, notably the History a scale model of the Hadrian’s Wall fort at Vindolanda out of gingerChannel. bread last Christmas. [Inset] David and Lisa support one another’s tees. Their most recent project is serving as consultants to the Plymouth “My mother and father historical research and writing interests. Plantation, through which David and Lisa are researching Lisa’s sparked my initial interest in history,” David shared. When he was Mayflower ancestor, Isaac Allerton, for writing his biography to be a child, his mother read National Geographic articles to him; and published in 2020 for the 400th Anniversary Commemoration of as a member of the U.S. Army, his father served during World War the Mayflower arrival in Cape Cod. II in North Africa, Italy, France, Germany and Austria. Seeing his David and Lisa also have extensive experience in preserving father’s military uniform and weapons, as well as a Nazi belt he British archaeology. Together, they funded the Oxford Radiologihad brought back from Germany, bolstered young David’s interest cal Laboratory’s X-ray analysis of the Kelvedon British sword, a in learning about global history. weapon that was buried in eastern Britain during the Roman invaBut David credits his wife and research partner, Lisa Penning2 sion, 43 A.D./C.E. The funding project was done for the benefit of ton , for fanning the “spark” into a bonfire to explore studying their friend and colleague, Paul Seal, who works as an archaeolohistory, particularly British history. David first met Lisa in high gist for the Colchester Castle Museum. Seal later recommended school, where they competed against each other in debate. They David to a production team from the History Channel who were later both attended the University of Texas Law School where they making the channel’s first 2-hour HDTV documentary, Warrior became moot court partners, even winning a moot court competiQueen Boudica, in 2005. David was flown into Boston, Massachution together. During his last year in law school, in the summer of setts by the History Channel to partake in a number of interviews 1983, he and Lisa studied International Arbitration and International Law at King’s College, London, England. They spent their Continued on page 35


July/August 2018


A Profile

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


Fred Hagans Hagans, Montgomery & Rustay, P.C.

n 1988, Justice Eugene Cook chaired the Texas Supreme Court Professionalism Committee and asked Blackie Holmes and me to co-chair it. In the late eighties, there was growing concern that abusive behavior by lawyers was increasing in frequency and severity. Many feared that such unprofessional conduct threatened the ability of the profession to fulfill the profession’s responsibility to clients and the broader legal system. Our committee was created in response to those concerns. The goal of the committee was to create a document that could be used by courts, lawyers, and clients to improve professionalism. We listened to and read the ideas of many lawyers around the state. Our draft was a compilation of what we as lawyers thought we could – and should – be as a profession. The committee’s draft was sent to the Texas Supreme Court and the Texas Court of Criminal Appeals. It was adopted by both as “The Texas Lawyer’s Creed—A Mandate for Professionalism.” This single document contained what our committee hoped would unify lawyers with principles of professionalism that were undeniable and would be embraced by all. Over the years, professionalism has

ebbed and flowed in our profession, but the Creed has been a constant reminder of how we can come together as a profession. We constantly aspire to do better. That was the goal of the Creed. On a personal level, I was lucky enough to start my practice at what was then called Bracewell & Patterson. The partners there taught professionalism through their actions—they were courteous, they respected our system, they took pride in knowing and understanding the law, and they worked hard. I took those principles and have tried to live them through my own practice and the work of my own firm. Practicing law is satisfying and frustrating, scary and rewarding, but it is the best way to spend my life that I can imagine. Every day we serve, and we do so in the role of a trustee. Clients place their legal problems in our hands. They need our help. To meet those needs, we must be competent, work hard, and have good judgment. We are privileged to be lawyers. We should be “passionately proud” of our profession and our part in it—by continually striving to improve as we travel through this life we have chosen.


July/August 2018


committee spotlight

Speakers Bureau:

Demystifying Everyday Legal Issues


The Houston Lawyer

By Raymond L. Panneton

tinely go into schools across the Housutreach and education are Speakers Bureau volunteers are often a ton area to engage with students of all cornerstones of any bar asstudent’s first encounter with a lawyer. A ages. Whether reading law-based chilsociation, and nobody perspecial program called “The Importance dren’s books to elementary students or forms these functions betof Jury Service” last year reached 3,274 providing insight on the law as a career, ter than the Houston Bar high school seniors, who learned what Association’s Speakers Bureau. to expect when they are called Currently co-chaired by Alex to exercise one of their most Kaplan of Susman Godfrey, LLP important rights. and Donna Thomisee of LugenThrough the Speakers Bubuhl, Wheaton, Peck, Rankin & reau, 152 attorneys gave 230 Hubbard, the Speakers Bureau presentations that reached seeks to recruit current HBA 13,200 people, including 5,104 members who are willing to children, 6,120 teens, 40 colspeak to schools, service clubs, lege students, 1,344 adults and and other local civic organiza592 seniors in 2017-2018. tions on a number of legal topIf you wish to participate in ics. In addition to local civic the Speakers Bureau committee organizations, the Speakers Buor sign up to become a speaker, reau assists the Law Week and you are encouraged to complete Ray Panneton speaks to students at Memorial High School. Lawyers for Literacy Commitand return the speaker profile tees on Constitution Day and Law Week form found at www.hba.org/speakersschool readings. bureau. The only requirement to serve as At its very core, the Speakers Bureau a speaker is that you are an HBA member. serves as a repository and resource for Similarly, any organization that wishes event organizers who wish to have an to have an attorney speak at its next event engaging and informative presentation is encouraged to complete and submit a on a legal topic for their audience. GivSpeaker Request Form found at www. en the inescapable intersection between hba.org/speakers-bureau. Alternativethe law and every-day life, the Speakers ly, you can request a speaker at your Bureau’s many volunteers provide valuevent by contacting Ashley Steininger at able insight and demystify many of life’s (713)759-1133 or via email at ashleyg@ everyday legal issues. Through these efhba.org. forts, Speakers Bureau volunteers work daily to open and widen the conduit beRaymond L. Panneton is a litigation astween the legal profession and the public sociate at Hendershot, Cannon & Hisey, PC at-large. where he focuses his practice on complex In addition to speaking to adult business litigation. He can be reached at groups, Speakers Bureau volunteers rourpanneton@hchlawyers.com. www.hba.org/committees/speakers-bureau


July/August 2018



OFF THE RECORD from page 32

HBA Federal Practice Section:

Bringing Together the Federal Bench and Bar


By Yvonne Ho

minating stories about the history of the f your practice involves proceedings Southern District of Texas. And the secin federal court, then consider jointion also hosted a presentation by Shon ing the HBA Federal Practice Section. Hopwood, a former-bank-robber-turnedThis section brings together criminal law-professor at Georgetown University and civil law practitioners interested School of Law, whose in learning about best inspirational story was practices for federalfeatured on the televicourt cases, keeping sion show “60 Minabreast of current isutes.” sues, and getting to Beyond its formal know each other. presentations, the Many programs HBA Federal Pracoffered by the HBA tice Section provides Federal Practice Secmembers opportunition focus on practies to develop relatical tips and legal tionships with other trends, as presented like-minded attorneys. by federal judges and Each year, the section established attorneys. www.hba.org/sections sponsors social events Last year, the section for judges and attorneys across the HBA. hosted a panel featuring the newest federThese events further enrich the experial magistrate judges, as well as presentaence of being an HBA member. tions by the Honorable David Hittner and The HBA Federal Practice Section welthe Honorable Keith Ellison, who shared comes new members and invites everyhelpful insights and terrific war stories. one to share ideas for future presentaAnd in recent years, the section has hosttions. We hope that you will join us for ed discussions of legal developments on another informative and fruitful year. recurring issues. Want to find out more about HBA SecBut the HBA Federal Practice Section tions? Visit www.hba.org/sections. also offers programs that go beyond the nuts-and-bolts of federal practice. For example, the Honorable Gregg Costa of Yvonne Ho is the chair-elect of the HBA the Fifth Circuit Court of Appeals reFederal Practice Section and a partner in galed the section with colorful and illuthe appellate group at Bracewell LLP.

for the documentary, which aired in 2006. David was contacted by the History Channel again in 2016 and was flown to Hollywood to serve as a script consultant and on-screen expert for the channel’s new series, Barbarians Rising, an eight-hour documentary series regarding the “barbarian” peoples of Europe who opposed the expansion of the Roman Empire. So how does David hope to grow local interest in British history? “We will... publish books about the Pilgrims’ role in the seventeenth century settlement of America and about Boudicca’s revolt against the Roman Empire by researching, writing, speaking and publishing about those topics of British law, history, and archaeology in Houston,” shares David. Over the past decade, David and Lisa have spoken to numerous groups, including the Houston Archaeological Society, Houston Blacksmith Society, Fort Bend Archaeology Society, Houston Philosophical Society, and the University of Texas Classics Department. And it’s safe to say that this love for history certainly runs in the family. “My youngest son Ryan and I built a scale model of the Hadrian’s Wall fort at Vindolanda out of gingerbread last Christmas,” adds David, “It covered our dining room table, and amused a lot of our friends in Texas and in Britain, too.” Anietie Akpan is the managing attorney of The Law Office of Anietie Akpan, PLLC, where she practices guardianship law and special needs estate planning. She is a member of The Houston Lawyer Editorial Board. Endnotes

1. David Furlow is the owner of David A. Furlow, P.C., where he practices civil rights, probate, bankruptcy and appellate law. He is board certified in civil appellate law. 2. Lisa Pennington recently retired as managing partner with the Houston office of Baker Hostetler.


July/August 2018



Supreme Court Strikes Down PASPA By Nicholas R. Pierce


The Houston Lawyer

The Decision n May 14, 2018, the United States Supreme Court ruled in favor of New Jersey’s state-authorized sports gambling in Murphy v. National Collegiate Athletic Association. The court’s 6-3 decision overruled the Third Circuit Court of Appeals and struck down the Professional and Amateur Sports Protection Act (PASPA). The federal law effectively banned most states (46 states to be exact; four states were exempt as they had existing sports betting practices in place when PASPA was enacted in 1992) from authorizing sports betting. The Supreme Court found PASPA’s prohibition of state authorization and licensing of sports gambling violated the Constitution’s 10th Amendment anti-commandeering doctrine. The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has historically interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. The court explained that the 10th Amendment’s anti-commandeering doctrine is the expression of a fundamental decision incorporated into the Constitution—“the decision to withhold from Congress the power to issue orders directly to the States.” The court stated


July/August 2018


that PASPA “unequivocally dictates what a state legislature may and may not do.” The court further declared, “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” With the Supreme Court’s decision, states now have the autonomy to determine whether sports betting should be a lawful or unlawful activity.

Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) remain in place and will continue to prohibit online gambling in states that have not legalized sports betting. However, in states that legalize sports betting, states will have to decide whether to allow online/mobile betting or mandate that a bettor must be physically present in a casino or sports book to place a bet. States with struggling casino industries may possibly decide not to allow mobile betting to increase revenue at their casinos. For states that decide to authorize mobile sports betting, sports books or casinos will be able to take online bets, but only intrastate wagers will be permitted.

The court stated that PASPA ‘unequivocally dictates what a state legislature may and may not do.’

States Moving Forward Across the country, numerous states (as well as media companies and representatives of the casino industry) were delighted by the Supreme Court’s ruling. The economic impact of allowing sports betting is massive. Legal sports betting in Las Vegas takes in over $5 billion each year and most estimates put the value of illegal sports betting in the United States at up to $100 billion. With such a large market now in play, a number of states are looking to rapidly enact legislation to legalize sports betting. States such as Delaware, West Virginia, Connecticut, Mississippi, and Pennsylvania had laws already enacted to legalize sports gambling in anticipation of the Supreme Court’s ruling. Nearly 20 other states have introduced bills that could legalize sports gambling in the near future. At the other end of the spectrum, 26 states have not introduced any sports betting legislation. Texas does not have a bill introduced at this time. Does the Supreme Court’s Decision Affect Online Gambling? The Interstate Wire Act of 1961 and the

Future Implications Professional sports leagues face hurdles in determining how they can best make money from legal sports betting. The leagues have demanded payment of “integrity fees” from betting operators and sports books but have faced significant backlash, frankly, because it cuts into the betting operators, sports books and state governments’ profits or collected tax revenue. The Supreme Court’s decision has been heralded as a victory for sports bettors across the country. Yet there are a number of interested parties that will impact the laws that states adopt. Dealing with the myriad issues like taxation, professional sports leagues’ interests, online betting as well as numerous other issues, will certainly cause battles in the upcoming months and years. Nicholas R. Pierce is an associate at Manning, Gosda & Arredondo LLP. He practices in personal injury litigation.


Reasonableness of Hospital Charges


By Chance A. McMillan

n November 9, 2017, the Texas Supreme Court heard arguments in In Re North Cypress Medical Center Operating Co., LTD, Relator. Numerous hospital agencies filed amicus curiae briefs in the case. At issue was whether patients should be permitted to conduct discovery into the “reasonableness” of hospital’s charges in accident cases. Under the hospital lien statute, in accident cases, hospitals can file a lien that will attach to settlement assuming the charges for the care are reasonable. On April 27, 2018, the Court issued its 6-3 opinion permitting uninsured patients to obtain evidence of what hospitals accept from other patients who may enjoy the negotiated reimbursement rates applicable to private insurance contracts and the government (In Re North Cypress Medical Center Operating Co., LTD, Relator, No. 16-0851 (Tex. 2018). The patient/plaintiff was involved in a motor vehicle crash that required hospitalization in the summer of 2015. Following discharge, North Cypress filed a hospital lien to protect its bill. Litigation commenced, and a settlement was achieved. Plaintiff requested a reduction of the North Cypress bill, but no agreement was reached. Plaintiff sued North Cypress seeking a declaratory judgment alleging that the hospital’s charges were unreasonable and thus the hospital lien invalid. In discovery, Plaintiff requested the reimbursement rates that North Cypress accepts from private insurance contracts

and the government (Medicare/Medicaid). Plaintiff argued the information was relevant to show what constituted “reasonable rates” in the local healthcare setting; North Cypress countered, claiming the requests were irrelevant because the rates were set in consideration of the sheer volume of patients that North Cypress treats that have private insurance or government healthcare. North Cypress complained that the Plaintiff, who was uninsured, should not be allowed to inquire into or benefit from the reimbursement rates routinely utilized by private insurance companies and the government. The trial court ordered North Cypress to produce the information and appeals ensued. The Court’s majority focused on what it characterized as the central issue on appeal: whether the hospital charges were “reasonable” and thus protected by the hospital lien statute. If North Cypress’s charges were unreasonable, then it should not get the protection from the hospital lien statute. To this end, the Court noted that whether information is relevant is historically a low bar in discovery disputes. The Court believed that evidence of what North Cypress routinely accepted from private insurers and the government was evidence of what constituted “reasonable.” The Court denied North Cypress’s petition for writ of mandamus. In the past, for uninsured patients, some hospitals charged excessive amounts for healthcare following a motor vehicle accident and then, often unchallenged, used the hospital lien statute to recover the bill. Some hospitals would then simply refuse to reduce their inflated bills because of the statutory protection of the hospital lien statute. In Re North Cypress Medical Center is an indication that this practice may be coming to an end in Texas. Chance A. McMillan is a partner at Garcia McMillan, PLLC. His practice is limited to plaintiff’s personal injury litigation.

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July/August 2018


Media Reviews

Mastering Voir Dire and Jury Selection, 4th ed. By Jeffrey T. Frederick, Ph.D. ABA Book Publishing 2018


The Houston Lawyer

Reviewed by Robert Painter

very trial lawyer knows that voir dire is an intense, invigorating process that has an important significance in the outcome of a case. As society evolves, the jury pool changes, so trial lawyers need to tweak and update their jury selection techniques. A great place to start is the fourth edition of this seminal text by jury psychologist and consultant Jeffrey T. Frederick, Ph.D. Frederick starts with a primer on voir dire and then quickly delves into evidence-based information that is practical for any attorney picking a jury. One of the frustrations that I have experienced while attending jury selection seminars is that Texas trial judges do not typically allow extensive voir dire in most civil cases. This reality makes Mastering Voir Dire and Jury Selection handy, because it sets out a smorgasbord of techniques and issues that you can pick and choose to custom-tailor a jury selection strategy for your particu38

July/August 2018


lar case. The chapter on understanding juror nonverbal communication provides a panoply of visual, auditory, and nonverbal signs that an astute lawyer should notice and consider when interacting with jurors. As a whole, the chapter reminds me of a mix between Malcolm Gladwell’s book Blink and the television series Lie to Me. I believe that trial lawyers would be well-served to read this chapter shortly before trial to place these cues into working memory. My favorite chapter in the book addresses common situations and problems encountered during voir dire. I felt the discussion about defusing controversial issues—there are so many these days—and breaking the negative spiral were particularly helpful. While this book includes one chapter on juror questionnaires, Frederick wrote a 666-page companion volume entitled, Mastering Voir Dire and Jury Selection— Supplemental Juror Questionnaires. The companion text contains 22 juror questionnaires that were used in cases that the book cites. The topics include bribes/illegal gratuity/perjury/public corruption, fraud, involuntary manslaughter, murder, organized crime/RICO, securities fraud, sexual assault/rate, terrorism, antitrust, bad faith, civil rights, environmental damage, intellectual property, medical negligence, product liability, securities, tortious interference with the contract, assault and battery, and wrongful termination. Robert Painter is an attorney at Painter Law Firm PLLC, where he handles medical malpractice cases for plaintiffs. He is a former editor-in-chief of The Houston Lawyer.

The Far Away Brothers: Two Young Migrants and the Making of an American Life By Lauren Markham Crown Publishing Group 2017


Reviewed by Anietie Akpan

rnesto and Raul Flores are the titular Far Away Brothers in Lauren Markham’s debut novel exploring the challenging, frightening and life-threatening immigration experience of Central America’s prominent child exodus to the United States of the 1990s and 2000s. This contemporary immigration tale begins in the small rural town of La Colonia, El Salvador, where we learn the background of our two young protagonists, the Flores twins, who were born to a large farming family: hot-tempered

Media Reviews

Ricardo, the twins’ eldest half-brother; sensible Wilber; the only sister, romantic Maricela; and then the twins—soft-spoken Raul and fiery Ernesto. Like many towns in Central America, La Colonia found itself becoming a hotspot for organized crime and gang violence, with the Flores twins ending up on the wrong side of this after their family falls under debt to the twins’ Uncle Agustin, a notorious gang leader in the community. With their lives threatened, the Flores Brothers’ parents set them up with a coyota to accompany them on the long journey to the “Great American Unknown” to preserve and protect their safety and welfare. Although the Flores Brothers’ dangerous journey from El Salvador to California is engrossing, it is not until they arrive in the United States that their story really takes off. There are several notable experiences the Flores Brothers are faced with that are unique to their identity as young immigrants of color. A school representative repeatedly (and illegally1) denying the brothers’ enrollment into public school is just one example; the economic exploitation of the brothers at their workplace, and subsequent threat of deportation to prevent them from whistleblowing, is another. However, the author also includes many additional experiences in her novel to remind the audience of the two protagonists’ youth by showcasing how they navigate the social structure among other immigrants and American students at their school—making friends, falling in love for the first time, and, as is the experience of many twins, establishing their identities as their own person.

One especially interesting element of the novel is that the author interweaves several brief factual anecdotes between chapters that parallel with the story of the Flores Brothers. For example, “THE C O U R T H O U S E ,” which describes in detail the term “Special Immigrant Juveniles” (SIJs) and how SIJs navigate the American court system, is aptly placed before the chapter in which the Flores Brothers attend their own court hearing to find out if they would be permitted to stay in the United States, or would be deported. One unusual aspect of this book is that the first half of the story is told exclusively in third-person, but once the Flores Brothers arrive in the United States, there is a sudden use of “I,” implying that the story is being told from someone else’s point of view. Whether the “I” is the author herself, or a nameless, faceless immigration advocate, is never made clear. The Far Away Brothers is a lovely coming-of-age story that narrates the immigration experience in a beautifully human way. Anietie Akpan is the managing attorney of The Law Office of Anietie Akpan, PLLC, where she practices guardianship law and special needs estate planning. She is a member of The Houston Lawyer Editorial Board. Endnotes


Your HBA membership grants you exclusive access to

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1. See Plyler v. Doe, 457 U.S. 202 (1982) (noting the landmark decision of the United States Supreme Court that denial of public education to undocumented students is a violation of the Equal Protection Clause).


July/August 2018



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