Dallas Bar Association
HEADNOTES Focus Appellate Law/Trial Skills
April 2017 Volume 42 Number 4
Thank You Mock Trial Judges
Creekview High School, of Carrollton, won the State High School Mock Trial Championship. Dallas Bar Association members presided over and served as “jurors” for the final competition on March 4. From left to right are: (back row) Hon. Lana Myers, Steve Russell, Tramaine Tinner, Angelina LaPenotiere, Prater Monning, and Tom Goranson. (Front row) Gaylynn Gee, Barbara Palaez, Dena Stroh, DBA President Rob Crain, Stacie McNulty, and Jim Young.
Focus
Appellate Law/Trial Skills
Using Videotaped Depositions at Trial BY BRITTA STANTON AND PAT DISBENNETT
Reading depositions at trial is tedious—and boring. A great way to avoid the ridiculous scene of lawyers asking each other questions and play-acting answers is to use videotape. But there are several rule-based, as well as practical considerations, which should guide effective use of videotape.
When Can You Use a Deposition Video at Trial? Deposition video clips are evidence, and, therefore, must be admissible like any other evidence. That means each clip of testimony must contain admissible Q&A, and that the deposition video itself also must be admissible. Texas state and federal courts treat these threshold issues of admissibility differently. In Texas state court, a deposition may be used for any purpose in the same proceeding in which it was taken. Tex. R. Civ. P. 203.6. And as long as the deposition is taken in the same proceeding, the deposition is not considered hearsay under the Texas Rule of Evidence 801(e)(3). In short, you can generally use deposition videos interchangeably with live testimony in Texas state court. Federal courts, on the other hand, disfavor deposition videos as a substitute for live testimony. This policy is manifested in Federal Rule of Civil Procedure 32, which limits the use of deposition clips to situations that mirror the hearsay exceptions, including: (i) impeachment; (ii) the deponent is a party-opponent; (iii) the deponent
is unavailable at trial; or (iv) other “exceptional circumstances.” Fed. R. Civ. P. 32.
How Can You Use Deposition Video Clips During Trial? A second issue to consider is the manner in which deposition video clips may be presented. For example, can you play your favorite clips in your preferred order, or must you intermix unfavorable clips or play them chronologically? If the plaintiff plays clips during its case-in-chief, does the defendant get to play a counter video or must it wait until its case-in-chief? Under both state and federal rules, these questions are largely left to the discretion of the trial court pursuant to its authority to control the mode and order of trial. See Tex. R. Evid. 611; Fed. R. Evid. 611(a). Consequently, advocates have room to argue their preferred presentations, for which the following rules and authorities may be helpful. The rule of optional completeness is a significant tool (or hurdle) to persuade either a federal or state court of your position. See Tex. R. Evid. 107; Fed. R. Civ. P. 32(a)(6). You can use this rule to argue against a misleading or confusing presentation by your opposition, and then interject your own clips immediately to explain or give context to the initial clip. This is an effective way of interrupting your opposition’s flow. But caution: while the rule may allow you to interject your clips into
continued on page 12
Transforming American Democracy Keynote Speaker Hon. Tonya Parker Law Day is a national day set aside the judiciary, featuring keynote on May 1 of every year to celebrate speaker the Honorable Tonya the rule of law. In 1957, the American Parker, Judge of the 116th Judicial Bar Association (ABA) envisioned a District Court of Texas. special day for celebrating Judge Parker has our legal system and it was twice been elected by further established by Presher judicial colleagues ident Dwight D. Eisenas the Presiding Judge hower. This annual day for the Dallas County was created to strengthen Civil District Courts (a our great heritage of libposition she currently holds). She has served erty, justice, and equality as the president of the under law. Texas Association of This year’s Law Day District Judges, and is a theme is: The 14th member of the Ameriamendment: Transformcan Law Institute, an ing American Democracy. Hon. Tonya Parker organization of jurists There are four sections to the 14th amendment of the U.S. who work to clarify, improve, and Constitution. In celebrating Law Day, otherwise modernize the law. Judge Parker serves with distincthe most relevant sections of the 14th amendment is the first section and the tion, and she is recognized at the local, state and national levels for fifth section. The first section states: All per- her contributions. In 2015, the Dalsons born or naturalized in the United las Chapter of the American Board States, and subject to the jurisdiction of Trial Advocates named Judge thereof, are citizens of the United Parker Trial Judge of the Year. The States and of the state wherein they State Bar of Texas African-Amerireside. No state shall make or enforce can Lawyers Section honored her any law which shall abridge the privi- with its Distinguished Jurist Award. leges or immunities of citizens of the She has also been awarded the United States; nor shall any state Honorable L.A. Bedford Outstanddeprive any person of life, liberty, or ing Jurist Award and the Honorable property, without due process of law; Sam A. Lindsay Award for Profesnor deny to any person within its sionalism and Ethics—both awards jurisdiction the equal protection of from the J.L. Turner Legal Associathe laws. The fifth section states: The tion. In February 2017, the SOGI Congress shall have power to enforce, Commission of the American Bar by appropriate legislation, the provi- Association awarded Judge Parker one of its prestigious Stonewall sions of this article. Through its Citizenship, Due Pro- Awards. Outside the legal arena, Judge cess and Equal Protection clauses, this transformative amendment advanced Parker is a devoted community serthe rights of all Americans. It also vant. She is a regular volunteer with played a pivotal role in extending Ignite, a non-partisan organization the reach of the Bill of Rights to the aimed at building political ambistates. Ratified during Reconstruc- tion in and training young women tion a century and a half ago, the 14th (ages 14-22) to run for public office. Amendment serves as the cornerstone Throughout her career, she has served of landmark civil rights legislation, on numerous legal and civic boards and the foundation for numerous federal commissions, including as chairperson court decisions protecting fundamen- of the Dallas Arts District Alliance’s tal rights, and a source of inspiration Board of Directors, commissioner on for all those who advocate for equal the City of Dallas Community Development Commission, at-large director justice under law. Since 1866, it has been illegal in for the Dallas Bar Association Board, the U.S. to discriminate in jobs and a two-term board member for the J.L. housing on the basis of race. How- Turner Legal Association, and a threeever, federal penalties were not pro- term advisory board member for the vided for, so remedies were left to the Dallas Women Lawyers Association. The luncheon begins at noon individuals involved. Since the latter half of the 20th century and pas- on Friday, May 5, 2017, at the Belo sage of related civil rights legislation, Mansion. Doors open at 11:45 a.m. there have been an increasing num- For tickets or more information, ber of remedies provided under this contact Liz Hayden at lhayden@ act, including the landmark Jones v. dallasbar.org or (214) 220-7474. Mayer and Sullivan v. Little Hunting Reservations are available online at www.dallasbar.org. HN Park, Inc. decisions in 1968. This year, the Dallas Bar Association will continue its tradi- Kathy Roux, of Law Office of Kathy E. Roux, is a tion of celebrating Law Day with a Publications Committee member and can be reached luncheon on May 5, 2017, honoring at kathy@kathyrouxlaw.com.
Inside 9 When Must a Prevailing Party Cross-Appeal?
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide”
13 Want Appellate Experience as a New Attorney? Be Proactive 16 Effective Case Strategy: Causation, Causation, Causation
in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
2 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2017
Calendar April Events APRIL 7-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“Perspectives & Implications: Confidently Taking Extended Self Care Leave & Returning to the Practice of Law,� Dr. Benjamin Albritton, Phil Appenzeller, and Steve Beck. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
APRIL 21-BELO Noon
“Cross Examination: the Good, the Bad, and the Most Effective for Civil or Criminal,� Barry Sorrels. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
MONDAY, APRIL 3
Trial Skills Section Topic Not Yet Available
Noon
DAYL Freedom Run Committee
Tax Law Section “Recent Developments in Federal Income Taxation,� Bruce McGovern. (MCLE 1.00)*
TUESDAY, APRIL 4 Noon
MONDAY, APRIL 10 Noon
Corporate Counsel Section “Hot Topics in International Trade,� Elsa Manzanares. (MCLE 1.00)* Tort & Insurance Practice Section “Texas Trial Legends,� Hon. Ken Molberg moderates. Honorees: Clayton Devin, Frank Finn, Kay Van Wey, Ed Wright (deceased). (MCLE 1.50)*
5:30 p.m. Bar None Auditions at Belo 6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, APRIL 5 11:30 a.m. Dallas Bar Foundation Fellows Luncheon. Recipient: Beverly Godbey. Tickets $65/ Tables $650. For more information contact ephilipp@dallasbar.org Noon
Noon
5:00 p.m. DVAP Belo Legal Clinic. Volunteers needed. For information contact reed-brownc@lanwt.org.
8:45 a.m. Dallas Minority Attorney Program Learn more about business development and practice management for the solo, small firm and minority attorney. RSVP to kwatson@ dallasbar.org. (MCLE 7.00)* Noon
Friday Clinic-Belo “Perspectives & Implications: Confidently Taking Extended Self Care Leave & Returning to the Practice of Law,� Dr. Benjamin Albritton, Phil Appenzeller, and Steve Beck. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
Antitrust & Trade Regulation Section “FTC Perspectives on Privacy, Data Security and Applying Consumer Protection Laws to New Technologies,� Daniel Kaufman. (MCLE 1.00)*
Mergers & Acquisitions Section “Attorney-Client Privilege in M&A Transactions,� Trey Muldrow. (Ethics 1.00)*
DAYL Judiciary Committee
FRIDAY, APRIL 7
Noon
Labor & Employment Law Section “Who Are You Calling a Joint Employer?� Janet Hendrick. (MCLE 1.00)*
TUESDAY, APRIL 18
Noon
Home Project Committee Legal Ethics Committee
WEDNESDAY, APRIL 12 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon Family Law Section “The Addicted Lawyer: Tales of the Bar, Booze, Blow and Redemption,� Brian Cuban. (MCLE 1.00, Ethics 0.75)* Admissions & Membership Committee Bench Bar Conference Committee 5:15 p.m. Legalline. Volunteers needed. RSVP to sbush@dallasbar.org.
DAYL Elder Law Committee
MONDAY, APRIL 24 Noon
Golf Tournament Committee DAYL Membership Committee
TUESDAY, APRIL 25 Noon
DAYL Lunch & Learn CLE
Energy Law Section “Energy Pipelines, the Trump Administration, & the Courts: New Policies & New Challenges,� Prof. James Coleman. (MCLE 1.00)* Health Law Section “2016 Year in Review – The False Claims Act,� Jeremy Kernodle and Nicole Somerville. (MCLE 1.00)*
American Immigration Lawyers Association DAYL Lawyers Promoting Diversity
WEDNESDAY, APRIL 26 Noon
Pro Bono Activities Committee DAYL Equal Access to Justice Committee Non-Profit Law Study Group
DAYL Foundation Board of Directors Meeting
5:15 p.m. Legalline. Volunteers needed. RSVP to sbush@dallasbar.org.
THURSDAY, APRIL 20 Noon
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org. Municipal Justice Bar Association
THURSDAY, APRIL 27 11:30 a.m. DBA Pro Bono Golf Tournament at Cowboys Golf Club, Grapevine Noon
Appellate Law Section “Looking Over the Lege: Bills Pending in the 85th Legislature,� Jerry D. Bullard. (MCLE 1.00)*
Criminal Law Section “DWI Jury Punishment – From Client Intake to Happy Ending,� John Gioffredi. (MCLE 1.00)* Environmental Law Section “Regulating Regulation: Control over EPA Regulatory Authority,� Prof. Jeffrey Gaba. (MCLE 1.00)*
Transition to Law Practice Program “Business Development 101—Using Your Strengths Now to Create Career-Long Client Relationships,� P.J. Dunn, Lindsey Rames, and Shawn Tuma. (MCLE 1.00)*
Government Law Section Topic Not Yet Available CLE Committee Judiciary Committee Publications Committee Christian Lawyers Fellowship DAYL Pro Bono Partners Committee
Collaborative Law Section Topic Not Yet Available Entertainment, Arts & Sports Law Section “Art Fairs and Festivals: Do I Really Need an Attorney?� Elisabeth Evert and Joshua King. (MCLE 1.00)*
Summer Law Intern Program Committee
5:30 p.m. An Evening With the Judges “Views from the Bench,� Hon. Roberto Canas, Jr., Hon. Dennise Garcia, Hon. Maricela Moore, Hon. Tonya Parker, and Hon. Ingrid Warren. (MCLE 1.50)* Hosted by the Dallas LGBT Bar Association.
Probate, Trusts, & Estates Law Section “Texas Case Law Update,� Prof. Gerry Beyer. (MCLE 1.00)* DVAP CLE “On the Road Again: Occupational Driver’s Licenses and Barriers to Reinstatement,� Chris Larson. (MCLE 1.00)*
WEDNESDAY, APRIL 19 Noon
Science & Technology Law Section “Taxing the Cloud: Application of U.S. Federal Income Tax Principles to Businesses Operating in the Cloud,� Orly Mazur. (MCLE 1.00)* Securities Section “Pursuing and Defending Satellite Litigation in Whistleblower Cases,� Sean McKenna and Rachel V. Rose. (MCLE 1.00)*
6:00 p.m. Dallas Hispanic Bar Association
THURSDAY, APRIL 13 Noon
DAYL Lawyers Against Domestic Violence Committee
Franchise & Distribution Law Section “Private Equity in Franchising,� Michael Elliot and David Pratt. (MCLE 1.00)* International Law Section “US-Cuba Relations: Changing Attitudes in International Trade and the Path Forward,� Elisabeth Trujillo. (MCLE 1.00)*
Friday Clinic-Belo “Cross Examination: the Good, the Bad, and the Most Effective for Civil or Criminal,� Barry Sorrels. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org. DAYL Immigration Panel
11:30 a.m. DVAP Probate Mini-Seminar “Part I on Evidentiary Issues in Probate, Part II on Property Issues in Probate,� Brandy BaxterThompson, Mary Burdette, Mark Caldwell, Hon. Craig Penfold, Hon. Brenda Hull Thompson, and Scott Weber. (MCLE 2.00, Ethics 1.00)*
Immigration Law Section “Employment-Based Immigration – Updates and New Regulations,� Patsy Yung Micale. (MCLE 1.00)*
Public Forum Committee
Construction Law Section “Ten Things That You Need to Know About a Certificate of Merit,� Stanhope B. Denegre. (MCLE 1.00)* Family Law Section Board Meeting St. Thomas More Society
MONDAY, APRIL 17
Business Litigation Section “Trial Presentation Skills,� Mark Lanier. (Ethics 1.00)*
Juvenile Justice Committee
Noon
DBA Offices Closed in Observance of Good Friday
TUESDAY, APRIL 11
Solo & Small Firm Section “Creating a Winning Team in the Oil Patch or How to Win $146, 000,000,� Chrysta Castaneda and Mike Lynn. (MCLE 1.00, Ethics 0.50)*
THURSDAY, APRIL 6
FRIDAY, APRIL 14
Peer Assistance Committee
11:00 a.m. 2017 Jeff Coen Family Law Nuts & Bolts Video CLE Parts I & II, MCLE 3.00, Ethics 1.00 (Each Part). Sponsored by DVAP and the DBA Family Law Section. To register contact reed-brownc@ lanwt.org.
FRIDAY, APRIL 21 Noon
Real Property Law Section “Texas Pace Program,� Scott Deatherage. (MCLE 1.00)*
Employee Benefits & Executive Compensation Law Section “Post-Election Update with Former Congressman John Shadegg,� John Shaedegg. (MCLE 1.00)*
5:30 p.m. Bankruptcy & Commercial Law Section “Cybersecurity Issues Every Lawyer Should Know,� Steve Thomas. (MCLE 1.00)*
Alternative Dispute Resolution Section “Mediation in Federal Court – a Panel Discussion on Procedures and Best Practices,� Jonathan Herman, Hon. David Horan, Hon. Irma Ramirez, Hon. Renee Toliver. (Ethics 1.00)*
3:30 p.m. DBA Board of Directors Meeting 6:00 p.m. J.L. Turner Legal Association
Christian Legal Society DAYL CLE Committee
Minority Participation Committee Christian Legal Society DAYL Animal Welfare Committee
FRIDAY, APRIL 28
Dallas LGBT Bar Association
Intellectual Property Law Section “‘The Non-Doctrine of Redundancy’ at the PTAB,� Saurabh Vishnubhakat. (MCLE 1.00)*
DWLA Board of Directors Meeting
DAYL Solo & Small firm Committee
DAYL Moms in Law Committee
Noon
MOTHER’S DAY BRUNCH J
Sunday, May 14, 2017, Belo Mansion
oin us for a culinary tour at the beau ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimentary champagne and mimosas. A boun ful selec on of fresh fruit, breakfast breads, chilled seafood sta on, carved prime rib, omelets and freshly made pancakes and waes, a variety of pies, cakes and sweets and the ever-popular children’s buet. 6HUYLQJ KRXUV IURP D P WR S P _ $GXOWV &KLOGUHQ *DUDJH SDUNLQJ DYDLODEOH IURP 2OLYH 6WUHHW 7D[HV JUDWXLWLHV DQG SDUNLQJ QRW LQFOXGHG 5HVHUYDWLRQV 5HTXLUHG E\ 0D\ &UHGLW &DUG WR KROG UHVHUYDWLRQ 1R VKRZV ZLOO EH ELOOHG &DOO RU HPDLO FXOLQDLUHVDOHV#GDOODVEDU RUJ /LPLWHG VHDWLQJ 6SRQVRUHG E\ WKH '%$ (QWHUWDLQPHQW &RPPLWWHH
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Yedenia Hinojos at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
April 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Appellate Law/Trial Skills
Oral Argument in the Appellate Court: Tips for Improvement BY CHAD BARUCH
Oral argument matters—and do not let anyone tell you otherwise. Not every case merits oral argument. But in cases that do, oral argument can make the difference. Here are tips for improving your next oral argument. Master the Record. Know the record. If particular parts of the record seem certain to be the focus of questions, note the citations so you can respond with specific record references. Update Your Research. Oral argument usually occurs months after the briefs were filed. Update your research just before oral argument both to identify any new authority and to avoid the embarrassment of discovering during argument that your lead case has been overruled. Do Not Cover Everything. Oral argument begins where the briefs end. Reach the second level of argument—incorporating and refuting your opponent’s best arguments while addressing the thorny issues the court must decide. Above all else, do not just repeat your brief. Have a Scripted Opening—and Nothing Else. A good oral argument requires a strong introduction. While many appellate judges will interrupt lawyers early in oral argument, courts almost always permit a lawyer to complete the first 90 seconds before posing questions. Those first 90 seconds, then, present a unique opportunity because they are the only time during the entire argument that you can be fairly confident of saying what you want to say, exactly the way you want to say it. Use your first
90 seconds to introduce your argument powerfully and persuasively. This introduction should be the only scripted portion of your argument. Be Prepared for No Questions— or Many. Anyone who has argued more than ten cases probably has had at least one argument that involved only one or two questions, and at least one in which the entire argument consisted of a continuing conversation with the court. Be prepared for either possibility. Practice Makes Perfect. Many lawyers read their argument for the very first time when they approach the podium. Why? Few lawyers file their first draft of a brief, so why do they submit their first “draft” of an argument? When it comes to oral argument, practice makes perfect. The best way to practice an oral argument is a moot argument with a panel of two or three colleagues serving as the judges. Stop Talking When Your Time is Up. When the red light is illuminated, stop talking and sit down. If you have made your argument in its entirety, stop talking and sit down. Have the Right Tone. At oral argument, your most important tool is your voice. Speak clearly and forcefully, pausing occasionally to permit the judges to process arguments. Speak at a reasonable pace, resisting the temptation to speak too quickly, while also avoiding long pauses and the dreaded “um.” Finally, and most critically, speak in a semi-conversational tone and be respectful at all times. Answer Questions With a Yes or No. Over and over, in every possible
way, appellate judges advise us to JUST ANSWER THE QUESTION!!! If this is not simple enough, it means: • Do not evade the question. • Do not answer a different question. • Do not change the question. • Do not tell the court the question is irrelevant. • Do not give a cursory answer and go back to what you think is important. If you believe the question is irrelevant or beside the point, answer it directly first, and only then explain why you believe it may not be important. And if you can answer a question yes or no, do. Or, at the very least, start with the yes or no and then explain your answer further if you must. Do Not Get Tripped Up on the Basics. The easiest way to be tripped up in oral argument is by overlooking the
basics. This means being able to answer the following four questions: 1. How was this error preserved? 2. What is the standard of review? 3. Why isn’t any error harmless? 4. How do we have jurisdiction? Defend the Decision You Seek. Think about the effects of the decision you seek. Explain why the result you seek is fair, just, and makes sense. Have Fun! Oral argument represents a rare opportunity to discuss your case, and the area of law it implicates, with a panel of knowledgeable and experienced judges interested in understanding the issues. That should be fun—both for you HN and for the judges. Chad Baruch is a board certified appellate attorney with Johnston Tobey Baruch PC. He can be reached at chad@jtlaw.com.
Law Day 2017
LAW DAY LUNCHEON ~ Honoring our State & Local Judiciary ~
Friday, May 5, Noon at Belo Keynote Speaker: Hon. Tonya Parker 116th Judicial District Court of Texas Major Sponsor: Law Pay (www. lawpay.com/dallasbar) Switch to LawPay at no cost and save up to 25% off standard credit card processing fees. To purchase tickets, visit www.dallasbar.org or contact lhayden@dallasbar.org.
4 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2017
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Stronger Together BY ROB CRAIN
As I have mentioned many times this year, the Dallas Bar Association is over 11,000 members and one of the most active Metro bar associations in the country. I believe this is due to three things: our unique home, the Belo Mansion; our strong leadership at the Executive Director position for more than 50 years; and our remarkably generous membership. I have addressed the first two in prior columns—if you have not seen our short documentary (11 minutes) on the history and acquisition of the Belo Mansion, you can view it on our website at www.dallasbar.org. In January and February, I spent most lunch hours at the Belo Mansion visiting our various Sections and Committees. On most days, hundreds of lawyers converge for CLE and organizational meetings. Last year, the DBA conducted over 400 CLEs, second only to the State Bar of Texas in number of events. Our 30 Sections and 31 Committees volunteered thousands of hours organizing and producing professional and community service related events. The breadth of service is astounding. This year we are launching an Ambassadors Program to reach non-member lawyers and inform them of the benefits of membership with the DBA and our sister bar associations. The obvious benefits are free CLE and business networking opportunities. What is often overlooked are the personal benefits. The legal profession is a service oriented profession, and lawyers take that spirit into the community through the DBA and our sister bar associations to charitably assist students of all ages, young lawyers, the homeless, the underprivileged, diversity initiatives, voting education initiatives, lawyers with addictions and emotional issues, orphans, children of those incarcerated, art initiatives, courthouse improvement projects, animal welfare efforts, historical initiatives, public issue forums, and on and on and on. The point is, if you have a passion to help others, animals, culture, community, etc., you can fulfill your passion through your membership with the DBA and/or our sister bar associations. Admittedly, I am a bit of a cheerleader with it comes to the legal profession. Our lawyers and judges do more for the North Texas community than any other profession. My first exposure to the work of our local bar associations left me humbled. Every day I enter the Belo Mansion I am further humbled by the passionate, and seemingly endless, concern for others. So with that, I embark on column suicide. I am going to mention a few opportunities to serve. With that, I will be omitting hundreds of others. If your initiative is not one I mention, please
recall that this year is Alicia Hernandez’ first year as Executive Director. She needs practice dealing with complaints. Please email her directly with your slight. This past month, the State Mock Trial competition completed its 38th year. The Belo was packed with over 400 students, parents, coaches, and volunteers for a luncheon celebrating their efforts. It is the kind of scene you walk away from with your heart full. Steve Gwinn and many others dedicate more than their spare time to this annual event. They have built this into a juggernaut. The competition does not rotate from city to city. It was created in Dallas. It grew to include the entire state. It is a model followed across the country. This year marks the 26th year of the DBA sponsoring and building a home through Habitat for Humanity, the longest commitment by any organization in the country. Every year you will find Al Ellis and many others working alongside future homeowners while they start with an empty lot and build a family’s dream home. Wear shades when you volunteer, Al has shiny legs. Bar None is in its 32nd year of production, slated this year for performances from June 14-17. As you likely know, Martha Hofmeister and Tom Mighell lead a talented band of lawyers who create a musical variety show from scratch. They write all the lyrics, create scores, choreograph the scenes and generally show the public that lawyers are not as boring as we appear on television. What you may not know is that the production has raised over $1.5 million for the Sarah T. Hughes scholarships at the SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M School of Law. Our sister bars also have many opportunities in which to volunteer. To mention just a few, there is Dallas Association of Young Lawyers’ Leadership Class, J.L. Turner Legal Association’s Election Protection Program, the Dallas Asian American Bar’s Voter Engagement Initiative Program, the Dallas Hispanic Bar Association’s Diversity Pipeline Activities, and the Dallas Women Lawyers Association/DAYL Mentoring Circles Program. As you meet lawyers who are not members of the DBA or our sister bar associations, please remind them of all the opportunities they have with membership to fulfill their personal aspirations of service. Not only this, but they will make a lot of new friends along the way. Stronger Together, Rob
HN
PLEASE SUPPORT OUR 2017 DBA PRO BONO GOLF TOURNAMENT VENDOR SPONSORS Consilio
Your International eDiscovery and Managed Review Provider (469) 221-5990 www.consilio.com
Crockett, McBride & Associates at Merrill Lynch Wealth Management Wealth Management Advisors | (214) 750-2114 http://fa.ml.com/crockett_mcbride
Esquire Deposition Solutions, LLC Deposition Services | (214) 257-1436 www.esquiresolutions.com
Exponent, Inc.
Engineering and Scientific Consulting | (832) 325-5712 www.exponent.com
Legal Directories
SIGN UP FOR THE 2017 DBA 100 CLUB! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association. What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools
Your Attorney Search Directory | (214) 321-3238 www.legaldirectories.com
with two or more lawyers as well as corporate legal departments may
MDD Forensic Accountants
Dallas Bar Association. To join the 2017 DBA 100 Club, please
Forensic Accountants | (972) 235-9547 www.mdd.com
U.S. Legal Support
Court Reporting • Record Retrieval • Trial Services • Electronic Discovery (214) 741-6001 www.uslegalsupport.com
qualify for the DBA 100 Club if all attorneys are members of the submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2017 DBA 100 Club membership list! What are the perks? Our 2017 DBA 100 Club members will be recognized in Headnotes, the 2018 DBA Pictorial Directory
As of March 13, 2017
Register for the Pro Bono Golf Tournament at www.dallasbar.org.
and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.
JOIN TODAY!
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Leon Carter, John Jansonius, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2017. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
April 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 5
The Dallas Bar Association CLE Committee Presents:
Barry Sorrels Cross Examination: The Good, the Bad, and the Most Effective for Civil or Criminal Cases April 21, 2017 0pm Dallas Bar Association RSVP: Yedenia HinojoV yhinojos@dallasbar.org
“Barry Sorrels takes the art of crossexamination to the highest level. I love trying cases with him. When he is on his feet, I can relax and enjoy the show.”
“When I was a prosecutor I hated Barry on the other side. I knew my witnesses were in for a grilling by a master crossexaminer with tremendous jury appeal. He is an iron fist in a velvet glove.”
Mark Werbner, Sayles Werber
Dan Hagood, Fitzpatrick Hagood Smith & Uhl
6 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2017
Column Ethics
IP Holding Companies: Where Law and Business Strategy Collide BY HERSHEL R. CHAPIN
IP-holding companies (IPHCs) are important tools for protecting high value intangible property (IP) rights. To maximize their usefulness, transactional lawyers consider numerous issues in light of their clients’ idiosyncrasies. Liability can be determined by whether an IPHC holds title to IP or is a mere licensee to operate the IP. “If the operating company does not own the intellectual property, then it may not be joined as a party in the litigation. Furthermore, if the IPHC owns the intellectual property, then… it will likely be immune from countersuit because the IPHC does not exploit the intellectual property.” Mark Cowan, Warren Newberry, Reevaluating the Intellectual Property Company. Boise State University ScholarWorks (Apr. 1, 2013), p.30. An IPHC that owns IP outright can shelter personal assets of the IP’s operator. A multi-national organization can insulate against infringement disputes with competitors. “If the patent is registered in one country and not also in another, the branch in the other country cannot make use of the
patent in the country where it is registered without infringing on the branch that has registered such.” Smit & Van Wyk, Why create a Patent Holding Company? (Accessed 10/6/16) Available online at: http://www. svw.co.za/patent-holding-company. p.1. “When properly administered, product-liability claims can be limited to a single subsidiary’s assets.” William Jackson, Thomas Kammerait, Advantages for Holding Company Structures for Owner-Operated Businesses, The National Law Review (Nov. 10, 2013), p.2. Pooling IP can help smaller companies capture business efficiencies and save money on multistate regulatory compliance through joint management. The use of subsidiaries can also make the trading of IP a breeze. “Without the holding company structure, a sale [or license] may require more extensive due diligence for the buyer or may reveal trade secrets unrelated to the product or service line.” Id. p.2. IPHCs sometimes offer tax advantages. Wholly owned subsidiaries can be treated as disregarded entities. Through IPHCs, taxpayers can move profits across state lines through the use of incorporation
Courthouse & Public Safety Forum May 3, 2017, Noon, at Belo Larry Thompson, Logistics Chief for the Dallas County Homeland Security and Emergency Management Office, will provide important information for your safety in and around courthouses in Dallas County. MCLE 1.00. RSVP to lori.bodino@dallascounty.org. Sponsored by the Courthouse & Public Forum Committees
in states that do not have royalty taxes or corporate income taxes. Currently, a handful of states offer favorable tax treatment to IPHCs including: Delaware, Nevada, and Wyoming. But tax reasons alone probably should not guide IPHCs’ implementation. Texas reduces the tax benefits of IPHCs by requiring affiliated entities engaged in the same business to file a combined tax return. Other states have enacted add-back statutes to disallow beneficial deductions for royalties or interest payments to affiliated IPHCs. In computing franchise tax, Texas IPHCs must apportion gross receipts from in-state use of “patent, copyright, trademark, franchise, or license,” but not from other forms of IP. See Tex. Tax Code § 171.103; TGSNOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011). A concern for IPHCs is standing: “[A] patent-holding company may not claim the lost profits of a separate corporation as its own merely because the patentee has a relationship with the corporation.” Robert Matthews, Legal Nuances When a Patent Holding Company Seeks to Enforce a U.S. Patent. IDEA – The Intellectual Property Law Review. Vol. 49 (Jun 11, 2009), p.553. An exclusive license is ordinarily required for a patentee to join a patent holding company in an infringement action. However, “[t]he Federal Circuit appeared willing to consider the patentee’s contention that if the profits of the subsidiary/nonexclusive licensee ‘flow inexorably up to the parent,’ the patentee may recover those profits.” Id., p.555 (citation omitted). The IPHC structure could present procedural challenges and opportunities. For instance, the jurisdictional contacts of affiliated companies do not necessarily benefit one another. IPHCs that do not maintain a substantial operational presence in certain
CHRISTINE P. LEATHERBERRY, A FAMILY LAW ALL-STAR FOR THE PAST FOUR YEARS, Christine has been honored by Thomson Reuters on the exclusive list of Texas Rising Stars. This year, she was also named one of the Top 50 Up-and-Coming Women Attorneys in the state. Clients and other attorneys acknowledge Christine’s gifts — her confidence, mastery of detail, empathy, and ability to effectively communicate when dividing assets and obtaining a secure foundation for her clients and their children's future. She navigates her clients through the unfamiliar legal process and makes difficult family situations manageable. To retain Christine P. Leatherberry for a family law matter, call 214 306-8441 or email christine@connatserfamilylaw.com.
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com
states may find themselves losing motions to transfer venue to a more preferable forum. In “obtaining an injunctive remedy for patent infringement, patent holding companies may have a more difficult time in proving entitlement to an injunction than a patentee who makes and sells a product that directly competes with the accused infringer’s product.” Id., p.558. “[N]o district court, in a published opinion, granted a permanent injunction to a non-practicing entity whose business model consisted solely of acquiring and licensing patents...” Id., p.565. The degree and geography of the IP’s intended use matter greatly. “[When] patentholding companies do not practice the patented technology, courts may find that the holding company will not suffer undue prejudice from a delay of an infringement suit [precluding awards of damages and prejudgment interest].” Id. p.577. “If an IPHC does not use the trademark itself, the trademark is susceptible to removal… for nonuse.” Cowan & Newberry, Reevaluating… p.31. Lastly, anti-assignability encumbrances on IP could add additional layers of complexity to IHPC organizational structures. These rights may or may not be triggered by successions-by-merger or successions-by-acquisition depending on how they are defined. 11 U.S.C. § 356(c)(1) restricts the assignment of non-assumable rights of IPHCs seeking to restructure through Chapter 11 bankruptcy. For these reasons and more, setting up IPHCs is a process that requires extensive familiarity with the client’s business affairs and goals. HN Hershel R. Chapin is the managing attorney of H. R. Chapin, Attorney & Counselor, PLLC and can be reached at hchapin@ gmail.com. Michelle Tullos provided invaluable assistance in researching this article.
April 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2017
The Believing-in-People Business BY FRANK STEVENSON
In 1993, Dallas Bar Association President-elect Peter Vogel asked a guy he didn’t know from a pile of lumber to start a “pipeline” program to help diversify our bar. It was the Summer Law Intern Program, and I was that pile of lumber. Since then, the Summer Law Intern Program—or “SLIP”—has secured summer internships for more than 600 Dallasarea high school juniors, providing them the opportunity to work in law offices and governmental and corporate legal departments. For most of these interns, an experience like that is more than unavailable— it’s unimaginable. Before their first day of work, many have never set foot in an office. Still, these are exceptional young people. The selection process requires solid transcripts, references, an essay, and multiple interviews. The only thing these students really need is someone to believe in them. And so, that’s precisely what the Dallas Bar does with SLIP. Does it work? SLIP has won awards from the State Bar of Texas and the Dallas Independent School District, and provided a successful template for implementation by other bar associations. Far more importantly, people are helped and lives are changed. Several years ago we asked a SLIP alum to speak to that year’s interns about the difference the program made in her life. Her response was the answer in sum. She asked if the event could possibly be advanced a day so it wouldn’t conflict with her departure for Europe on her Marshall Scholarship. A 2006 participant is now an attorney in Colorado. A 2010 graduate is in his second year at Thurgood Marshall School
of Law. A 2013 alumna continues to work at her SLIP placement and intends to enroll in law school in 2018. And a young man began his Sarah T. Hughes Diversity Scholarship interview at the Belo Mansion
he’ll be attending Columbia University on a political science and pre-law track. Another has been accepted to college and was awarded $300,000 in scholarships. And as a third prepares for the
The inaugural SLIP class of 1994.
The SLIP class of 2016.
last April with: “This is not the first time I’ve been in this building”; that 2007 SLIP alum is now a Hughes Scholar at Texas A&M University School of Law. That same pattern of achievement continues with the program’s latest graduates. A 2016 SLIP participant reports that “after a successful internship thanks to the Dallas Bar Association,”
Perspectives & Implications: Confidently Taking Extended Self Care Leave and Returning to the Practice of Law Speakers: Dr. Benjamin Albritton, Phil Appenzeller, and Steve Beck Friday, April 7, Noon at Belo | Ethics 1.00 RSVP to sevans@dallasbar.org Hosted by the CLE and Peer Assistance Committees
University of North Texas and considers law as a career, SLIP still enriches his life: “I also keep in contact with my lawyer mentor often, a benefit I truly appreciate.” But more youth can be helped. More people can be believed in. Between 20-30 interns are selected for the program each year. More could be accommodated if there were more internships available. The DBA now seeks employers for this summer’s program. Any solo, small or large firm, or governmental or corporate legal department interested in participating should contact Kathryn Zack at kzack@dallasbar.org or (214) 2207450, or Committee Co-Chairs Glen Hill
at glenwood.hill@bracewelllaw.com, or Keenan Kolendo, at keenan.kolendo@ haynesboone.com. For a salary of $2,560 over an eightweek internship or $1,280 over a fourweek one, you get great fill-in help over the summer holidays. And if you act quickly, SLIP will throw in an added bonus for free: The opportunity to transform a young person’s life. On June 3, 1994, I addressed the first class of SLIP interns, along with a charismatic political up-and-comer, then-Texas Secretary of State Ron Kirk. I told those interns that the Dallas Bar and the Dallas Public Schools had done all we could to set and shape the Summer Law Intern Program. Now the program was theirs to form and fashion by the force of their own performance and personality. The class of 1994 did just that; so has each of the 22 classes that followed. The class of 2017 will do the same. And the DBA will do its part, too. Because it’s our business—it’s what we do. When we bring a toy for our Toy Collection Drive or clothing for Santa Brings a Suit. When we venture into the DISD schools for Law Day or Law in the Schools and Community to encourage students to be lawyers or anything else they want to be. When we work at the North Texas Food Bank on the DBA’s Day of Service or bring our donations for the Christmas in July program. When we support DVAP or serve on LegalLine or in the Lawyer Referral Service. When we roof a Habitat house or judge in the DBA’s statewide Mock Trial Program. In each of these wildly varied activities we are engaged in precisely the same business. The believing-in-people business. Make your investment in the believingin-people business. Hire a summer intern. HN Frank Stevenson, a partner in Locke Lord LLP in Dallas, is the 2016-2017 president of the State Bar of Texas. He is a former president of the Dallas Bar Association.
Probate Mini-Seminar Tuesday, April 18, 11:30 a.m.-1:30 p.m. at Belo Evidentiary Issues in Probate and Property Issues in Probate Speakers:
TLIEnsure TLIE delivers exceptional service. We provide our insureds with outstanding defense counsel when they need it most. • Voted best professional liability insurance company in Texas five years in a row by readers of Texas Lawyer magazine • Over 37 years in the business • Preferred Provider of the State Bar of Texas • Only highly qualified, experienced and trusted lawyers are hired to defend TLIE’s insureds
512.480.9074 / 1.800.252.9332 INFO@TLIE.ORG / WWW.TLIE.ORG
Patricia Peterson, Claims Attorney
@TLIE_
facebook.com/TLIE01
Brandy Baxter-Thompson, Mary Burdette, Mark Caldwell, Hon. Craig Penfold, Hon. Brenda Hull Thompson, and Scott Weber
MCLE 2.00, Ethics 1.00
To register, or for more information, contact reed-brownc@lanwt.org. Sponsored by DVAP, DBA Probate, Trusts & Estates Law Section, Dallas County Probate Court
April 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Appellate Law/Trial Skills
When Must a Prevailing Party Cross-Appeal? BY ADAM CHARNES AND CHRISTIN JONES
When must a party who prevailed in the trial court cross-appeal? The seemingly obvious answer—“if I won, I never need to appeal”—turns out to be wrong in many instances. Because failure to cross-appeal could limit the prevailing party’s arguments on appeal, it is important for litigators to understand the somewhat arcane rules governing this question. To start with the basics, a cross-appeal is an appeal filed by the appellee. When the trial court issues a split decision, it is natural that both sides would appeal, and the second appeal is called a cross-appeal. But the more difficult question is when a party who prevailed completely—that is, a party for whom judgment has been entered on all claims—must file a cross-appeal. In Jennings v. Stephens, 135 S. Ct. 793 (2015), the Supreme Court reiterated the longstanding rule that a prevailing party must file a cross-appeal in order to present an argument that would either enlarge that party’s rights or lessen the opposing party’s rights under the district court’s judgment. A cross-appeal is not necessary, however, when an argument simply presents an alternative ground for affirming the judgment as it stands. In Jennings, the defendant was convicted of murder and sentenced to death. He sought federal habeas relief by arguing three theories of ineffective assistance of counsel during the punishment phase. The district court granted relief on two of the three theories and ordered the State to release him unless it held a new sentencing hearing or commuted his death sentence.
The State’s appeal attacked only the two theories upon which the court relied in issuing its order. Jennings responded by defending the order on all three theories, but the Fifth Circuit determined that it lacked jurisdiction to address the third theory because Jennings had not filed a cross-appeal. Reversing, the Supreme Court reasoned that the third theory, if accepted, would neither expand Jennings’ rights, nor lessen the State’s rights, under the judgment. And because appellate courts review lower courts’ judgments—which actually define the parties’ rights and obligations— and not their opinions, the Court allowed Jennings to present the third theory without filing a cross-appeal. So it is clear that a cross-appeal is necessary only if the appellee intends to advance an argument that would, if accepted, result in a modification of the judgment rather than a straight affirmance. Under this principle, an appellee must cross-appeal when it seeks to increase the amount awarded as damages or costs; tries to alter the disposition of a counterclaim or setoff; challenges an attorney’s fees ruling; or attempts to convert a dismissal without prejudice into one with prejudice. Further, when the plaintiff appeals a summary judgment or jury verdict for the defendant, the defendant must cross-appeal to contest the denial of its motion to dismiss for lack of personal jurisdiction, because a grant of summary judgment and a dismissal for lack of personal jurisdiction are wholly different forms of relief. When a judgment disposes of multiple claims, a cross-appeal is required to present arguments related to a different claim than that raised in the initial appeal. And a cross-appeal might be necessary for
an appellee to defend an injunction on a different basis than that relied on by the trial court, because a different rationale for the injunction could change the scope of the order. Notwithstanding the general rule, the courts have recognized a few unique exceptions. For example, a cross-appeal is not necessary to secure post-judgment interest denied by the district court, since Rule 37 of the Federal Rules of Appellate Procedure allows the appellate court to award whatever interest is due under the law. Also, an appellee need not file a cross-appeal to challenge the district court’s subject-matter jurisdiction, which is non-waivable. When the appellee fails to cross-appeal, any argument that could be raised only in
connection with a cross-appeal is waived. But if no cross-appeal is taken, an appellee may still urge in support of the judgment any argument appearing in the record, even if it attacks the reasoning of the lower court or urges an argument ignored by that court—as long as the argument would not alter the scope of the existing judgment. And since appellate rule 4(a)(3) gives a party fourteen days after the filing of the first notice of appeal to file a cross-appeal, the prevailing party may postpone performing this often-complicated analysis until it sees whether its opponent appeals. HN Adam Charnes is a partner at Kilpatrick Townsend & Stockton LLP. He can be reached at acharnes@kilpatricktownsend.com. Christin Jones is an associate at the firm and can be contacted at cjones@kilpatricktownsend.com.
Make an Investment in Dallas Hire a Summer Intern! Lend your support in 2017 to making a better workforce in Dallas. Hiring an intern provides the training and mentoring needed to close the workforce skills gap and bridge the opportunity divide. Part-time or Full-time-4-wks or 8-wks available! www.dallasbar.org/summerlawinternprogram To sign up, contact kzack@dallasbar.org
10 H e a d n o t e s l D a l l a s B a r A s s ociation
A pri l 2017
Dealing with Untimely Disclosures BY TATE HEMINGSON AND ELIZABETH GRIFFIN
Exclusion of late-disclosed witnesses and evidence is a surprisingly common pitfall that can sink a case. Under the Texas Rules of Civil Procedure, untimelydisclosed evidence is automatically excluded unless certain exceptions are met. What follows are the key issues to consider when confronted with late-disclosed evidence, whether you are fighting to keep it in or out. First, make your initial discovery responses timely. Thirty days is the standard deadline for most written discovery, but it can differ for experts. The scheduling order, if there is one, controls the expert designation deadline. If not, Rule 195.2 requires expert designation by the later of 30 days after receiving a request for disclosure or 90 days before discovery ends. Second—and here is where trouble often starts—make sure to timely supplement your discovery responses. Problems often arise with bare-bones initial disclosures that are not fully fleshed out until just before trial. This opens the door for the other side to claim untimely disclosure.
What is timely? Rule 193.5(b) provides a clear-as-mud standard requiring that amendments be made “reasonably promptly after the party discovers the necessity for such a response.” Whether an amendment was “reasonably prompt” is case specific, but be careful: there is a built-in presumption against reasonable promptness if an amendment is made less than 30 days before trial. Calendaring a reminder to supplement well before the 30-day mark will provide a head start in fighting an uphill battle against the presumption. An even better practice is to update disclosures throughout the case. It may be hard to argue “prompt” amendment if you waited to disclose the evidence for six months after you learned of it. But let us pretend the evidence was untimely disclosed and the other side objects. What happens? Rule 193.6(a) mandates automatic exclusion. This means exclusion of the witness or evidence is not a sanction, but a direct consequence of the untimeliness—unless an exception can be met. Rule 193.6 permits the court to allow untimely evidence if the offering party can show either (1) good cause for the late
JEFF COEN FAMILY LAW NUTS & BOLTS VIDEO CLE Part I and Part II
Tuesday, April 11 | 11:00 a.m. to 6:00 p.m. At Belo MCLE 3.00 | 1.00 Ethics (Each Part) Sponsored by the DBA Family Law Section and DVAP To register, contact vallejod@lanwt.org or reed-brownc@lanwt.org.
Sponsored by the DBA Family Law Section and DVAP
disclosure or (2) that the late disclosure will not unfairly surprise or prejudice the other party. The party seeking to admit the evidence bears the burden of proof. Both standards are fact-specific, but good cause is generally harder to prove (mere “inadvertence of counsel” will not suffice). Lack of unfair surprise or prejudice is more frequently argued and often turns on how close to trial the disclosures were made and what the other side already knew about the evidence. But even if the offering party cannot show good cause or a lack of unfair surprise or prejudice, the rule permits the court to grant a continuance to allow the opposing party time to conduct any necessary discovery. Careful attention to these procedures is critical to obtaining a favorable result or at least preserving any error for appeal. The following is a summary of key steps to follow if you encounter an untimely disclosure issue.
If You Failed to Timely Disclose:
• Do not just argue that the disclosure was timely. Argue, at least in the alternative, that there was good cause for any late disclosure and a lack of unfair surprise or prejudice to the other side. • Get a hearing, on the record, and present evidence to support your arguments. • If you can’t show good cause or lack of unfair surprise or prejudice, request a continuance.
• If the court excludes your evidence, make an offer of proof.
If the Other Side Failed to Timely Disclose: • Move to exclude the witness or evidence. • To show unfair surprise or prejudice, explain what discovery or preparation the untimely disclosure prevented you from doing. • Do not announce “ready” for trial if the late disclosure renders you “not ready” and be careful about refusing an offer of continuance—both can be argued to show a lack of prejudice. • If untimely evidence is allowed, continue to object at trial. (E.g., if the court allows a late-designated expert to testify over your objection, object to admission of the expert’s report to avoid an argument that the testimony was harmless.) • If the motion to exclude is successful, be ready to object if the other party later attempts to introduce the excluded evidence. Big fights can brew over exclusion of key pieces of evidence or testimony that may be challenged as untimely. These tips are a start to winning those fights no matter HN which side you are on. Tate Hemingson and Elizabeth Griffin are associates at Strasburger & Price, LLP. They can be reached at tate.hemingson@strasburger.com and eliazabeth.griffin@strasburger.com, respectively.
DVAP’s Finest Hilary Blake Hilary Blake moved to Dallas in 2012 and immediately got involved with DVAP. Currently, as an Assistant District Attorney for Dallas County during the business day, Hilary volunteers her time at night and on weekends with DVAP and loves the plethora of pro bono opportunities. In the past, Hilary has assisted with drafting wills for seniors as well as speaking to various groups in the community as needed. Hilary has truly enjoyed weekend work with the Habitat for Humanity New Homeowners Program through her estate planning presentations and discussion of the legal documentation that goes along with property ownership. Every month, Hilary teaches an evening juvenile justice class through DVAP’s Children’s Justice Project, which is court-ordered for first-time juvenile offenders and their parents or guardians. Hilary also helps these students secure internships, future education, and pursue success years after her presentation is complete. Thank you for all you do, Hilary!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
We Partner. We Protect. We Deliver.
A multi-office national law firm is seeking Attorneys for its Dallas Office. Representing individuals, families and small-business owners with their civil, estate, probate and family matters.
Proven results delivered by a team that takes a personal approach to every case. That’s the power of BN&M. Whether you require co-counsel, have a conflict or need a referral, we are there for you and your clients.
(214) 220-1220 bnmdallas.com
Litigation department is looking for Attorneys in the following areas: Professional Liability Defense, General Liability, Workers Compensation Defense, Construction, and Employment Liability Defense. Corporate Law, Commercial Litigation and Financial Services departments are looking for Attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus. Also seeking 1-4 year Associates. Email resume to RESUME@QPWBLAW.com
April 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 11
12 H e a d n o t e s l D a l l a s B a r A s s ociation
A pri l 2017
Beware of Dangerous Dog (Laws): They BITE BY SUSAN M. HALPERN
Our colleagues and clients who are dog owners describe their pets as “members of the family.” Sooner or later, you will hear about one of those dogs biting someone. Beware, because the laws relating to dog bites are harsh and unforgiving. Like the dogs they regulate, they bite! When a dog bites a human, the Animal Control Authority (ACA) can declare the dog to be “dangerous” if (1) the attack is unprovoked, (2) is committed “on a person,” (3) causes bodily injury, and (4) occurs outside the dog’s enclosure. Tex. Health & Safety Code, §822.041(2)(A). There is no such thing as “one free bite.” Worse yet, there does not even have to be a bite. A dog can be declared dangerous, if it (1) commits unprovoked acts, (2) outside the dog’s enclosure, (3) and “those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.” §822.041(2)(B). So, in other words, if the dog just scares someone, that could be enough. The consequences of a “dangerous dog” determination are significant. The dog must be registered with the local
ACA, which typically involves payment of a fee. §822.042(a)(1). The dog must be kept in statutorily defined “secure enclosure,” or must always be on a leash. §822.042(a)(2). The owner must obtain liability insurance or show financial responsibility of $100,000 to cover damages in the event the dog causes further bodily injury to a person. §822.042(a)(3). And, the owner must comply with other local regulations, which are often more restrictive with respect to the enclosure requirements. §822.042(a)(4). If the owner fails to comply with these requirements, the ACA is authorized to seize and destroy the dog. Finally, if a “dangerous dog” commits a further unprovoked attack on a person outside the dog’s enclosure, the owner can be charged with a Class C misdemeanor and the court can order the dog destroyed. §822.044(a-c). So, what should you do? First, timely perfect an appeal. The ACA is required to notify the owner of its “dangerous dog” determination in writing. §822.0421(a). The owner has 15 days to appeal. §822.0421(b). The appeal can be to a justice, county or municipal court of competent jurisdiction. Id. The
notice of appeal must be (1) filed with the court, (2) have the ACA’s determination attached, and (3) served on the ACA by the United States Postal Service. §822.0421(c)(1-3). Although many municipalities have ordinances that purport to reduce the time for appeal or limit the courts to which appeals are taken, it is clear that these restrictions are invalid. §822.0421(c) (“Notwithstanding any other law…”). Second, the appeal is a trial at which the rules of evidence apply. But, there are no pleadings. The ACA determination letters are ungoverned, and often difficult to decipher. As a result, it can be difficult to determine exactly what will be tried, and Texas has yet to see challenges to the constitutionality of the statutes and ordinances that force owners to proceed with such uncertainty. Consider challenging on these grounds. Third, the ACA’s determination must be based on sworn statements of witnesses. §822.0421(a). Use the Open Records Act to obtain the ACA’s file and challenge the determination if the ACA does not have sworn statements. Further, if the sworn statements contain hearsay,
challenge their adequacy, as they are not statements of “witnesses.” Also consider the municipality’s ordinance. Some contain stricter time limits for bringing a dangerous dog case. On this point, be prepared to address the question of whether the municipality can ignore its own ordinance and rely solely on state law. And finally, thoroughly explore whether the dog’s conduct was “unprovoked.” The term “unprovoked attack” clearly requires consideration of what provokes a dog. Hitting or teasing a dog are obvious, but there are more subtle provocations that can be developed through experts in dog psychology. The owner has further appeal rights from the initial appeal, which include the right to a jury trial. §822.0424(a). Therefore, consider further appeals. Finally, this discussion is limited to subchapter D of the dangerous dog statute. To adequately defend dogs, you should consider all aspects of Chapter 822. HN Susan M. Halpern is the founding partner of The Halpern Law Firm PLLC. She can be reached at shalpern@shalpernlaw.com.
Using Videotaped Depositions at Trial Ben Abbott Ben Abbott & Associates
Houston E. Holmes, Jr. Attorney at Law
Randolph D. Addison Addison Law Firm P.C.
Kathleen E. Irvin Attorney at Law
Micah Adkins The Adkins Firm, PC.
Justice Tom James Attorney at Law
James Ames Sample Ames PLLC William W. Camp Camp Law Group
Kristina N. Kastl Kastl Law, P.C. Justin Martin Godsey - Martin, P.C.
Mary B. Campbell Law Office of Mary B. Campbell
Sawnie A. McEntire Parsons McEntire McCleary & Clark PLLC
J. Scott Chase Farrow-Gillespie & Heath LLP
Mike McKool McKool Smith P.C.
Nicolas Chavez Chavez & Valko, LLP
Nancy A. Nasher NorthPark Development Company
Wm. Kevin Cherry Cherry Petersen Landry Albert LLP
Robert H. Osburn Robert H. Osburn, P.C.
Randall M. Ebner Exxon Mobil Corporation Al Ellis Sommerman, McCaffity & Quesada, L.L.P. Gary E. Fish Texas Retina Associates Hon. Tom C. Fuller Tom Fuller Conflict Resolution Service David L. Godsey Godsey - Martin, P.C. Hon. Bonnie L. Goldstein 44th District Court James J. Hartnett, Jr. The Hartnett Law Firm Elise Healy ELISE HEALY + ASSOCIATES pllc
Richard D. Pullman Kessler Collins, P.C. Glynis W. Redwine The Redwine Law Firm S. Theis Rice Trinity Industries, Inc. Michael L. Riddle Middleberg Riddle Group Daniel J. Sheehan, Jr. Daniel Sheehan & Associates, L.L.P. David A. Shuttee Republic Title of Texas Inc. Darryl J. Silvera The Silvera Firm Richard Clark Vint Exxon Mobil Corporation Peter S. Vogel Gardere Wynne Sewell LLP Donald P. Wiley Attorney & Counselor
continued from page 1 the other side’s presentation, Texas courts have warned that the rule must be balanced against a party’s right “as a matter of trial strategy . . . to present his evidence in the order he believes constitutes the most effective presentation of his case, provided that it does not convey a distinctly false impression.” Jones v. Colley, 820 S.W.2d 863, 866 (Tex. App.-Texarkana 1991, writ denied). Also, in federal court, keep in mind that more published cases exist to support or counter your position. Be armed with these cases before you argue deposition designations at trial. Examples include a case ordering a party to play clips from a single deposition all at once rather than “here and there during the case,” K.S. v. Detroit Pub. Sch., No. 14-12214, 2015 WL 6671560 (E.D. Mich. Nov. 2, 2015), a case allowing clips from fifteen depositions to be played without counter-designations, Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 199 F.R.D. 487, 489 (E.D.N.Y. 2001),
and another excluding deposition clips from six corporate representative depositions in lieu of live testimony. Gonzalez Prod. Sys., Inc. v. Martinrea Int’l Inc., 310 F.R.D. 341, 344 (E.D. Mich. 2015).
Practical Tips Ensure your witness’s name is on the record with a short explanation of his or her role in the case to orient the jury. Keep it short. Ten minutes is ideal, but try not to exceed 20 minutes, or you will risk losing the jury. Kill the effectiveness of a ‘bad’ videotaped deposition by designating so much ‘good’ testimony, the jury doesn’t remember any of it. Plan ahead: Learn the court’s preferences for playing video; also, get the other side’s objections ruled on to prevent interruption and have a plan for efficiently presenting the objections for ruling. HN Britta Stanton is a partner and Pat Disbennett is an associate at Lynn Pinker Cox & Hurst, LLP. They can be reached at bstanton@ lynnllp.com and pdisbennett@lynnllp.com., respectively.
April 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 13
Appellate Law/Trial Skills
Want Appellate Experience as a New Attorney? Be Proactive BY BRANDON WHIT MAXEY
As a civil litigator, the appellate aspect of my practice is my favorite. I love it. It is intellectual in nature, and you get to have a hand in public policy. In the appellate world, we are helping the courts interpret the law. It is an exciting, and humbling experience. With that said, appellate work is hard to come by—especially for new attorneys who were not fortunate enough to have a clerkship. So, how can they gain appellate experience?
Work on Becoming a “Good” Legal Writer Any appellate attorney will probably say that the writing aspect of their practice is the most important. In other words, I have heard experienced and seasoned appellate lawyers say that a case is won on the briefs—rather than at oral argument. But, “good” legal writers are few and far between. I certainly have a long way to go myself. A mentor of mine mentioned that young associates should read-to-learn. This means stepping outside of the law practice and reading “good” writing, for the purpose of learning by imitation. He specifically pointed me to On Writing Well by William Zinsser, as a starting point. He is also a big fan of news publications with solid writing, such as The Economist. In short, the more good writing that you read, the better writer that you become. A good legal writer must also be knowledgeable of recent trends in the law. Publications such as Headnotes or the
Texas Lawyer are great resources. These publications are full of ideas and new developments in the practice, which can be useful as you evaluate a case.
Be Entrepreneurial Within Your Firm It is unlikely that a new attorney will receive big, high-value appellate cases from clients early on. But, there are likely opportunities within the new attorneys’ firms. If you are at a firm with an established appellate practice, let the partners know of your interest and volunteer to help. The best place to start is by offering to cite-check opposing counsel’s briefs, or to proofread your firm’s own writing. It may not be billable work, but it will help get your foot in the door. Plus, it will help you learn the practice. Additionally, marketing yourself as someone who can tackle tough motions and legal issues is valuable—both in-andout of the appellate practice. So, jump at any chance you get to take on writing projects. As a new associate at a firm, this can admittedly be nerve-racking. But, it is a great way to learn and build a reputation within your firm. Also, offer to help when your partners are at trial. Today, many appellate attorneys are embedded on trial teams. They often work on trial briefing, error preservation, and on drafting the jury charge. As a new attorney, offering to help on those issues will provide valuable experience early on.
Be Active on Twitter For anyone wanting to know more about the appellate practice,
#AppellateTwitter is a treasure trove of great information. Appellate attorneys, professors, and judges from all over the country use the hashtag as a thread to discuss the appellate practice—as well as an opportunity to network and make friends. For any issue, there is always someone there to answer questions and give advice based on experience. It is a valuable resource for any new attorney. Here are a few tips from the good folks at #AppellateTwitter for new attorneys seeking appellate experience: • Seek out pro bono work on the appellate level. For those of us that are not in large firms, this involves getting involved in local non-profit legal advocacy groups. Also, many federal circuits—and most Texas appellate courts—have pro bono programs.
• Participate in #PracticeTuesday. Every Tuesday, many of the #AppellateTwitter attorneys spend the day answering questions about the practice. Everything from brief writing to business development is covered. • Become active in your local bar association. Both the Dallas Bar Association and the State Bar of Texas have appellate sections, which provide numerous opportunities for learning and networking In short, I do not believe that any particular background is necessary for someone to become an appellate attorney. For new attorneys, gaining experience comes from hard work and being proactive in HN your work. Brandon Maxey is an associate at Hartline Dacus Barger Dreyer LLP. He can be reached at bmaxey@hdbdlaw.com.
Annual Evening Ethics Fest Thursday, May 4, at the Belo Mansion
Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration To register, log on to www.dallasbar.org. For more information contact Marcela Mejia at (214) 220-7410 or mmejia@dallasbar.org. Sponsored by the DBA Legal Ethics Committee
14 H e a d n o t e s l D a l l a s B a r A s s ociation
A pri l 2017
Wednesday, April 5, 2017 Reception at 11:30 a.m. Luncheon at Noon The Pavilion at the Belo Mansion 2101 Ross Avenue
honoring
Beverly Godbey Partner, Gardere Wynne Sewell LLP Life Fellow, Dallas Bar Foundation
>> furtherance of justice >> law-related education >> >> legal services for the poor >> scholarships >>
The Dallas Bar Foundation Twenty-Sixth Annual Fellows Luncheon
Tickets: $65 For reservations: 214-220-7487
Texas Insurance Coverage Litigation — The Litigator’s Practice Guide, by Amy Elizabeth Stewart is the definitive ve resource for any litigator handling an insurance coverage dispute. Part I Practical guidance for: t Reviewing and analyzing insurance policies t Understanding the various types of business and management liability coverages that may be available to commercial insureds Part II Indispensable easy-reference overview of Texas law governing i iinsurance coverage disputes L A R R Y & S A L LY W O L F I S H Estate Planning A t tor ne y and D onor-A d v ised Fund Holder s
PRO FE S S I O N A L I N S I G HT f r o m PER SO N A L E XPERIEN CE For estate planning attorney Larry Wolfish and his wife, Sally, their positive experience as donor-advised fund holders at Communities Foundation of Texas (CFT) has provided insight into how to better serve his clients. “I know firsthand that CFT bends over backwards to help
Deep in the heart of giving™
their donors,” said Larry. “When I introduce my clients to CFT, they always come back and thank me for the advice. Maintaining a fund is simple, effective and gives them comfort that their money is being professionally
Open your fund today.
cared for. I’m giving them a great solution to their planning
Call us at 214-750-4226,
needs and it helps reinforce their trust in me. It’s a
email giving@cftexas.org
win-win scenario for everyone involved.”
or visit www.CFTexas.org/GivingFund
Part III Practical strategies for litigating an insurance coverage case: t Dispute resolution and Call 1.800.756.8993 to order. pre-litigation considerations t Discovery tips t Case management ideas www.TexasLawyerBooks.com t And more! Amy Elizabeth Stewart is the founding shareholder of Amy Stewart PC, a boutique law firm in Dallas that represents corporations in disputes with their insurers. Amy conducts an active litigation practice involving complex insurance coverage and bad faith cases. She also provides advice on matters relating to risk management, policy procurement and renewals, pre-litigation disputes, and other contract issues implicating insurance or indemnity agreements. Having spent many years representing insurance companies in coverage litigation, Amy has insight into the perspectives of both the insurer and the insured. Her experience and understanding of insurance law make her an invaluable resource to clients facing insurance coverage disputes, evaluating and renewing their insurance programs, managing communications with their insurers, and addressing other complex insurance issues.
April 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 15
16 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
A pri l 2017
Appellate Law/Trial Skills
Effective Case Strategy: Causation, Causation, Causation BY KIRSTEN M. CASTAÑEDA
Without an effective case strategy, you are likely to end up with a mess on your hands: pleadings that do not link to discovery responses or deposition testimony, which do not support your expert or dispositive motions, which do not point the way to proper jury instructions. From the first pleading through the charge conference (and all the way to Texas Supreme Court review), you can try a case—or provide essential appellate support in the trial court—efficiently and effectively by focusing on three things: causation, causation, causation. Identify the applicable causation standard. First things first: identify which standard applies to each claim and defense. Although we tend to default to proximate cause (thank you, first-year torts class), a variety of common-law causation standards exist. Alternatively, the applicable standard may be set by statute or the parties’ contract. Remember that
different causation standards may apply to threshold and ultimate questions, such as waiver of immunity under the Texas Tort Claims Act. Also, the burden to prove causation may shift between the parties, as in discrimination claims under the Texas Commission on Human Rights Act. Determine what elements the causal relationship links together. Assuming that you know which elements are linked by causation can lead to unpleasant surprises when drafting a dispositive motion or jury charge. Sometimes, causation links the defendant’s act or omission to the plaintiff ’s damages. Other claims, however, may link different elements together. For instance, causation in a fraud claim requires linkage between the plaintiff’s reliance and the plaintiff ’s damages. And in a conspiracy claim, causation does not link the conspiracy to the plaintiff ’s damages. Rather, the plaintiff must link the unlawful, overt act done in furtherance
of the conspiracy to damages recoverable for the underlying tort. Incorporate causation into your case strategy. Understanding the applicable standard and the elements in the causal relationship allows you to draft written discovery and deposition questions aimed directly at establishing or defeating causation. Especially in an era when a witness’s video deposition testimony often comprises his/her trial testimony, nailing down the proper causal relationship through depositions is critical not only to dispositive motion practice, but also to prosecuting or defending your case at trial. Moreover, establishing causation may require retaining and designating expert witnesses. For some claims, the case law clearly defines when expert testimony is necessary; for others, you will need to assess whether your causation issues are beyond the common understanding of a jury. Consider causation in evaluating settlement options. Even in situations
when summary judgment is unlikely, causation issues may impact trial themes, complicate the presentation of the case to a jury, provide a strong appellate point, or supply a hook for Texas Supreme Court review. Considering these factors will assist you in providing your client with a thorough analysis of the settlement options. Recognize the malleable aspects of causation. Applicable causation standards may shift and change during the course of a lawsuit. Because the allegations underlying a claim impact the type and scope of causation, pleading amendments can impact your approach mid-case. New factual allegations may change the parameters; for example, alleging consequential contract damages invokes a causation standard slightly different than direct damages. Adding a defense (or a claim with shifting burdens of proof) may impose new causation burdens that weren’t an issue before. New case law may provide a basis for summary judgment or a jury instruction that was not apparent when your lawsuit began. Reassessing your options throughout the litigation is essential to keeping your case strategy on track. Use your causation analysis to build a solid record. Understanding the role of causation in your case may unearth issues that seem tangential in the trial court but could be essential to appellate relief—or to attracting the Texas Supreme Court’s attention—should the trial-court stage end adversely to your client. Recognizing these issues early in the litigation allows you the opportunity to develop discovery and include proof in the record that will support arguments you may need to make on appeal. And as you head into trial, you can use your thorough and up-to-date causation analysis as a touchstone when you offer evidence, propose and object to jury questions and instructions, and craft themes and arguments to assist the jury in melding the evidence and the charge. By recognizing causation’s pivotal role as you prepare and implement your litigation strategy, you can increase the efficiency and effectiveness of your representation HN from beginning to end. Kirsten M. Castañeda is a partner in the law firm Alexander Dubose Jefferson & Townsend LLP. She can be reached at kcastaneda@adjtlaw.com.
ʭ,ãʰÜ Ø ¼ Ê¡ÊØã ¼ ăã ô«ã¨ ;Êà Zã Øʃ 㨠ú Ø ¼ ãÊ Ø ÜÜ ÊèØ Ã Ü Ã Êà ØÃÜ Ã Ø ¼¼ú ôÊع ¼ÊÜ ¼ú ô«ã¨ èÜʈ a¨ ú ¹ÃÊô ¨Êô ã¨«Ã¢Ü Ø ¢Ê«Ã¢ ã¨ØÊ袨Êèã 㨠ú Ø Ã Ã ÊÂÂÊ ã ÊèØ Ã Üʈʮ ROLAN PETTY | RR RANCH Member Since 1982
Do You Want to Refresh Your Spanish? Spanish for Lawyers is the Answer! 10-Week Course Summer 2017 | $180 April 4-June 8, 2017
Visit LoneStarAgCredit.com/tx to connect with a loan officer near you.
F IN A N C IN G F O R : RUR A L R E A L E S TAT E RURAL HOMES | FA RM OR RANCH OPERATIONS EQUIPMENT | AGRIBUSINESSES R E C R E AT IO N A L P R O P E R T Y
F I NA N C I N G Y O U R P I E C E O F T E X A S
All courses are a continuation of spring semester.
For more information, contact Yedenia Hinojos at yhinojos@dallasbar.org or (214) 220-7447.
April 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Appellate Law/Trial Skills
What I Have Learned From This Side of The Bench BY JUSTICE BILL WHITEHILL
Before joining the Fifth District Court of Appeals, I was fortunate to work with excellent appellate specialists who were invaluable teammates and taught me much about handling appeals. Having spent two years on this side of the bench, I appreciate even more the differences between litigation and appeals. Here are a few observations. There seems to be a view that a competent trial lawyer is equally competent to handle an appeal. In a general sense, that is true. Presenting a case in both venues requires the same basic legal reasoning, writing, and speaking skills. But handling an appeal well requires a different mindset and focus. Jury arguments in an appeal detract from an ability to effectively communicate issues, operative facts, applicable law, and proper application of that law to those facts. But appeals usually have a central theme that drives the outcome. Rather than emotional appeals about right or wrong conduct designed to influence a jury, an appellate theme centers on resolving a discrete legal question by correctly applying the law to the record. Bryan Garner calls an issue that captures the theme in a syllogism a “deep issue.” Effective advocates identify and articulate their case’s deep issues. Abstract issues do not help identify the pivotal questions or focus on their resolution. Although broadly stating that “the trial court erred by granting summary judgment against appellant” allows counsel to argue multiple
grounds for reversal, it does not provide guidance as to what we need to focus on to decide the case. It is more helpful to say that the trial court erred in granting summary judgment because, for example, the key statement in an affidavit is conclusory, followed by a short explanation of why that is so. Sub-issues, if necessary, can help focus a brief. Many appellants present the components of an appellant’s brief without first stating the pivotal questions that drive the outcome. Often it is not until well into the appellant’s brief that the actual question we need to answer is revealed. A more effective brief provides that context upfront so we have that context in mind when we read about the facts and the law. On a smaller scale, context also helps at the topic sentence level. “Because” is too often ignored. It helps to give the “because” for a conclusion at an argument’s or a paragraph’s beginning. Appellants should say where issues were preserved or why preservation was unnecessary. We want to decide issues on the merits, but generally we can review only trial court decisions. If an appellant cannot address error preservation, the issue should not be presented. The conventional wisdom I heard in private practice was that a case is not won but can be lost in oral argument. My experience is otherwise. I have had well-presented arguments change my preliminary thoughts about a case but do not recall a poor argument doing so. Oral arguments are academic events. Effective oral arguments are conversations among colleagues about
the issues and the law. Appeals to emotion during oral argument interfere with our ability to understand the correct application of the law to the facts. Effective oral advocates appreciate that appellate judges are familiar with the briefs and issues. Therefore, beginning with the case’s general background distracts from the essential message. Effective appellants begin by identifying the few issues they intend to discuss and then proceed straight to those issues. Effective appellees address key points in the appellant’s presentation before beginning their intended remarks. We ask questions to clarify a point or test an argument. Answer them, if you can, or say that you cannot. One should respond to questions presented to an opponent if the given answer was inaccurate or
doing so provides an entrée to discuss your position on that point. Conclusions in briefs and oral arguments that summarily repeat the preceding portions are not effective. Instead, an appellate conclusion is an opportunity to request a “just” result by answering the pivotal question(s) based on the preceding arguments’ logic. Our mission is to determine whether the trial court committed a harmful legal error. By focusing on the pivotal legal issues, counsel can thereby give the client the best representation HN possible. Justice Bill Whitehill sits on the Texas Fifth District Court of Appeals. This article reflects his personal opinions and is not that of the Court or any other justice. He thanks Greg Lensing for his assistance in preparing this article.
This O d Dog Happens To Know A Few Tricks. Rely on a trial lawyer with 45 years of experience and 175 trials. When your case needs to be mediated, call Al Ellis, a trial lawyer who has the experience to help you creatively resolve any dispute. His vast experience in the courtroom gives him comprehensive insight that allows him to understand the different perspectives of each case. Al is one of only 500 U.S. members of the International Academy of Trial Lawyers, a former President of the Dallas Bar Association, and the recipient of the Morris Harrell Professionalism Award — evidence that he has earned the respect of peers on both sides of the docket. Once Al gets his teeth into a case, he won’t let go, working tirelessly until he negotiates a fair, mutually agreeable deal. When it’s time for mediation, there’s no one better to have at your side. Voted one of D Magazine’s Best Lawyers of 2015 for Alternative Dispute/Mediation
AL ELLIS
T R I A L L AW Y E R / M E D I AT O R Sommerman, McCaffity & Quesada, LLP 214.720.0720 | Dallas, TX al@textrial.com
18 H e a d n o t e s l D a l l a s B a r A s s ociation
A pri l 2017
Security Step 5: Secure Your Sensitive Data or “There is a problem with this website’s security certificate.”
BY AMY MANN
Secure Your Sensitive Data The security and integrity of your data is of paramount importance, as practices typically have large amounts of confidential and sensitive information about clients. Not only do you have an ethical responsibility to protect this information, but often times, a legal responsibility as well. So what are some things you can do to meet these obligations?
Data in Motion When handling sensitive information within a web browser, always make sure the address starts with “https,” which indicates a secured connection. Data transmitted over a properly secured connection is encrypted and prevents an attacker from tampering with or accessing the information sent. Most browsers will highlight the address bar in green or show a closed lock to indicate that the connection is secure. Beware of websites that may have misconfigured or outdated security. Avoid using any website that the browser flags as having an untrusted certificate, as the site or the connection may be compromised. For example, the browser might display a message stating “The site’s security certificate is not trusted”
Data at Rest Data stored on your computer or a network storage device also need to be secured. Most modern operating systems support “whole drive” or “whole disk” encryption. Once enabled, you can be comfortable knowing that if your computer is ever lost or stolen, the data stored on it cannot be accessed by anyone else. To get started using whole drive encryption, search for “BitLocker” from the Start Menu on Windows Professional, or FileVault on Mac OS X. For data that is backed up off of your computer, or that needs to be transmitted to other parties, file encryption is a must. Applications such as SecureZIP and OpenPGP implementations like Gpg4win (Windows) can secure your own data for storage, as well as ensure protected communication to third parties.
Data in the Cloud
minimum encryption standards for data that is processed or stored. These standards often require ongoing audits by external parties to ensure continuing compliance. When in doubt about the ways a service provider protects your confidential information, always ask for their security practices and certifications.
Parting Thoughts Through this series of security tips, we have examined several steps you can take to secure the cyber assets in your office. From your network to your passwords, systems, and data, your firm should now be on a stronger security footing. Unfortunately, security is not a one-time event. Technology changes and new threats continue to emerge, but the practices discussed in this series continue to apply. As your office changes over time, keep your
asset inventory up-to-date, and use the steps of this series as a simple checklist for maintaining the security of your practice.
About LawPay More than just a “merchant account,” LawPay offers legal professionals an effortless way to separate earned and unearned fees to avoid trust account violations when accepting credit card payments. LawPay contractually protects client funds by restricting the ability of any third-party from debiting monies from a Trust or IOLTA account, and is the only payment provider approved and endorsed by over 90 bar associations. For more information, visit our website at https://lawpay.com/dallasbar HN or give us a call at (866) 376-0950. Amy Mann is the Content Writer for Lawpay. She can be reached at amann@affinipay.com.
Belo Mansion Named Facility of the Year
Confidential information stored in cloud services, whether for archival or operating purposes, must usually meet requirements imposed by industry governing bodies. PCI in the payments space, and HIPAA for healthcare data, mandate
RSVP NOW FOR THE Dallas Minority Attorney Program CLE Focused on the Small Firm and Solo Lawyer Guardian Ad Litem-Office Management-Technology-Judges Panels
April 7, 2017 | 8:30 a.m.-5:00 p.m. at Belo | MCLE 7.00 No tuition fees. Open to all lawyers.
Space is limited.
The Belo Mansion was honored with the prestigious “2016 Facility of the Year” award! The award is given by DFW Chapter of NACE, (National Association for Catering and Events), and is voted on by peers in the industry. Congratulations to the Culinaire staff at Belo: (left to right back row) Bryan Starnes, Kevin Brant, CPCE, Jonathan Greer; (front row) Maks Patoni, Dawn Finley, CPCE , Chef Brian Litolff, and Dave Burak.
RSVP to email kwatson@dallasbar.org as soon as possible to secure your spot.
®
Need an experienced legal malpractice lawyer? Law Offices of
James E. Pennington, PC Assisting clients with claims against lawyers 900 Jackson Street • Dallas, TX • 214-741-3022 jep@jeplawyer.com • www.jeplawyer.com
™
®
April 2 0 1 7
Classifieds
D al l as Bar A ssoci ati on l Headnotes 19
April
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying for 20 years in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.” Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has six CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to; energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 17 U.S. offices and an office in London. Contact Peter Hagen or Karl Weisheit at (972) 980-5060 or go to HSNO.com.
OFFICE SPACE
Office Space Available - 1700 Pacific Avenue. Title insurance agency has 3,000 square fee +/- available for sublease. The remaining term on the lease is 4+ years. We will consider any term of one year or more. The rate is $17.00 + E and parking is included. The suite is partially furnished and has a reception area, conference room, small library, and four offices. Three high quality cubicles are available to use. Photos and a floor plan are available upon request. There is a large conference room available on a “space available” basis for the subtenants use, in our suite. Please contact Mike Neary (214) 855-5950 or mike@ sentineltitlecompany.com if interested. Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. North Dallas – Galleria. Attorney offices available with law firm located in Galleria towers. Amenities include conference room, secretarial station, kitchen, parking garage, photocopy/scanner/ postage/facsimile and related amenities. Contact Scott at (972) 789-1162. Uptown - Executive Office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms,
two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour. Stop Looking!! Your next office in Downtown Dallas is available now for immediate move-in. Active law firm has very modern, newly built offices for rent in a “turn-key” executive suite arrangement (secretary station also available for a little extra) in Class A building with restaurants, Starbucks, conference center, Wi-Fi Lounge and 24/7 security. In-office amenities include receptionist, telephone, Wi-Fi access, conference rooms and a stocked kitchen (unlimited coffee, soda and snacks; lunch is sometimes provided). Get it all for one price (parking and postage extra). You will enjoy a great working environment. Call Kathleen at (214) 965-9999. Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Turtle Creek Blvd. - executive office space available for lease in a professional, legal environment. Large window office available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or para-professionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, conference room, kitchen area, covered visitor parking, secured office parking (reserved parking available) and 24/7 tenant access. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information. North Dallas - LBJ Freeway. Law Firm – North Dallas - For Lease: Professional office space, 12222 Merit Tower, offers conference room, receptionist, Internet service, lobby kitchen, parking. Available 3/1/17. Email Amy at arobinson@ englishpllc.com or (214) 528-4300. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $900.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600 McKinney Avenue. Three offices with two secretarial areas (1165 sq. ft.) available at 4054 McKinney Avenue. Monthly rate of $1,900.00 per month. Call (214) 520-0600 Coit/Churchill - Office share opportunity with small established law firm. Large corner window office with separate support staff custom built work station. No lease; 60 day move-out notice required. Includes shared reception area-two conference rooms-kitchen, two 5-drawer lateral cabinets, DD phones, Wi-Fi, fax, copier/printer/scanner/postage meter at pass-thru cost, 24/7 security and tenant access, free gym, free large meeting room, 1 underground executive parking space, 1 secured upper level
parking, free visitor parking. Contact Renay @ (214) 292-2614. Addison law firm has two offices and an assistant station for rent. Includes covered parking, kitchen facilities, receptionist and access to conference rooms. Please email kelly@crb-law.com for more information. LBJ Freeway & Coit – Full Second floor! Approximately 12,000 sq. ft. of shell space available. Ready to be built to suit your needs. Prime location and visibility from LBJ Freeway. Easily accessible from Far North Dallas and Downtown via North Central Expressway. First floor lobby, entranceway, and parking lot newly remodeled for a welcoming, impressive feel. Please contact Angel Flores by phone at (214) 293-1901 or by e-mail at management@1usaconstruction.com for a tour or further information. North Dallas/Farmers Branch - Law firm has several offices for lease. $400/ month per window office. Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (214) 532-8892 or ilene@texasinjurylaw.com.
POSITIONS AVAILABLE
Medical Malpractice Defense Attorney. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire an attorney with 3-5 years’ experience. Medical malpractice defense experience preferred. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey, 4849 Greenville Ave., Suite 1150, Dallas TX 75206 or e-mail to: csantosuosso@trtblaw.com or fax to (214) 754-0999. Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/or our general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees. See our website at www. pamlaw.com or contact Steve Palmer or Rebecca Manuel at (214) 242-6444. Exall + Wood is adding a select group of transactional and regulatory attorneys to its team located in Uptown Dallas. Find out what makes us unique at https:// www.exallwood.com/career-opportunities/. For further inquiries, please call or email Mary Bayer (469-619-6484 or mbayer@exallwood.com). Harness Dickey, an established intellectual property law firm ranked among the top ten patent firms in the US, has an opening for an associate attorney in its Frisco office. Qualified candidates will have a degree in Mechanical Engineering and 2-3 years’ experience in patent preparation and prosecution. We offer competitive compensation and benefits. This position offers an opportunity to develop a varied and interesting practice preparing and prosecuting patent applications in commercially significant technologies for large- and mediumsized clients from diverse industries including automotive systems, batteries and chargers, fasteners, food processing, furniture, heavy equipment, household products, HVAC, industrial-process handling, medical devices, optics, packaging, power tools, powertrain, process equipment, pumps, valves, refrigeration, sporting equipment, textiles and turf-care products. Opportunities exist to develop additional skills including formulating patent strategies, conducting patentability and freedomto-practice studies, preparing opinion letters, conducting due diligence and
negotiating technology agreements. Please send resume in confidence to lbarrett@hdp.com. AV rated law firm in Dallas is looking for an attorney with 5+ years of experience in general casualty defense litigation with an emphasis on trucking defense litigation. The candidate must possess excellent writing and legal analysis skills as well as deposition and case handling experience. Self-motivation, confidence, and a desire to work are prerequisites. We offer competitive pay and benefits as well as exceptional growth opportunities for your personal practice. Submit your resume in confidence to cm_v@icloud.com. Downtown Defense Firm – Experienced Associate. Downtown mid-sized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking and subrogation (both workers’ compensation and ERISA). Must have good communication skills, solid writing ability, be able to work independently and with others, and have experience working with insurance companies. Great opportunity for a motivated, self-starting individual. Please submit resume and salary requirements to dwoodard@ downsstanford.com. Legal Nurse Consultant. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a Legal Nurse Consultant with 5 years of clinical nursing experience. LNC experience, LNC certification or healthcare risk management experience preferred but not required. This is an in-house position. Please e-mail your resume to: csantosuosso@trtblaw. com or mail to: C. Santosuosso, Adm. Mgr.; Thiebaud Remington Thornton Bailey LLP; 4849 Greenville Ave., Ste. 1150; Dallas, TX 75206 or fax to: (214) 974-0999.
SERVICES Licensed Spanish Court Interpreter. Trials, Hearings, Depositions. Translations: legal documents, contracts, articles of incorporation, financial and technical correspondence. 1623 Main St. Suite 210, Dallas TX 75201. Email: Agsantos3@live.ru or call: (832) 916-0283. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Kirk Leitch or Brenda Phillips at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
20 H e a d n o t e s l D a l l a s B a r A s s ociation
A pri l 2017