Dallas Bar Association
HEADNOTES March 2014 Volume 39 Number 3
Bob Mow Selected for 2014 DBF Fellows Award by Greg Taylor
This year, the Dallas Bar Foundation Fellows Award and the Justinian Award are being combined to honor an attorney who has throughout a distinguished career adhered to the highest principles and traditions of the legal profession, served both the community and the profession, and adhered to the highest ethical standards. The newly inaugurated Fellows Justinian Award will remain one of the most prestigious awards given to a member of the Dallas Bar. Based on these high standards, it is only fitting that the first-ever Fellows Justinian Award be presented to Bob Mow, a partner at K&L Gates. A Missouri native who proudly graduated from his state’s flagship university with distinction, Bob nevertheless made it to Dallas as quickly as he could, where he graduated magna cum laude from Southern Methodist University’s Dedman School of Law. That was in 1963, when the Dallas legal community was much smaller, and the practice was truly a profession. Bob joined Carrington, Coleman, Sloman and Blumenthal, where some of the legendary trial lawyers of Bob Mow Dallas taught him to practice. In the process, Bob became a legend himself. In 1985, Bob joined Hughes & Hill, later Hughes & Luce. He became the head of the trial section, and eventually was elected managing partner of the firm. Bob remained at Hughes & Luce until it merged with K&L Gates, where he continued to practice. Last year marked Bob’s 50th year in the profession. During the 1980s, the approach to law in Dallas began to drift from its historic professionalism towards so-called Rambo-style litigation. Bob felt this overly-aggressive approach to the law demeaned the profession, and he helped stem that tide in a variety of ways. He was an influential friend of the Northern District judges who authored the then-novel Dondi opinion in response to such tactics. He also served as chair of the Dallas Bar’s Grievance Committee for the Sixth District. And he chaired the Evaluation Committee of the Committee for a Qualified Judiciary. But apart from these contributions to the community and the profession, what Bob mostly did was mentor the next wave of Dallas litigators back towards the road to civility. If you have practiced law for any time in Dallas, you have felt Bob Mow’s influence. District Court Judges Barbara Lynn and David Godbey trained under him, as did luminaries like Kim Askew, Mark Werbner, Jeff Tillotson, Mark Sales and Allan Diamond, to name only a few. Great lawyers and Dallas Bar leaders such as Jim Coleman, Darrell Jordan, Fletcher Yarbrough, Bill Dawson and Rod Phelan worked alongside him. You know these names not only because of their legal abilities, but because of their professionalism and approach to the practice. In one way or another, they are all part of what some call “Bob’s Congregation.” Bob is a lawyer’s lawyer. Literally. For decades, whenever the best firms in town found themselves defending a potential ethics or malpractice complaint, one of their first calls was to Bob Mow. He has defended or advised some of the area’s
best-known firms, sometimes in front-page cases. In one prime example, after obtaining a complete defense verdict in a weeks-long defense of one of Dallas’ finest firms, a Texas Lawyer photo caption summed it up best: Nice Guys Finish First. He routinely handled “bet-the-company” litigation. Bob has always led by example. No matter how tough the case, or how abrasive the opposition, Bob was the consummate professional and always a gentleman (complete with seersucker jacket on some summer days). He did not have to browbeat witnesses. He simply was so well prepared that he could methodically force the truth from a recalcitrant witness without seeming like a gloating gladiator. Bob was the opposite of flashy— it was all substance with him. He was tough when he needed to be, but never mean-spirited. Over the years, he won the toughest of cases. He was innovative in his approach to the presentation of evidence long before PowerPoints and electronic courtrooms became the order of the day. Some of his best crossexaminations were conducted from a few scribbled notes on his handy 3x5 index cards, which he special ordered long after they disappeared from supply rooms. To Bob, it was always about credibility and putting a witness at ease. Bob trusted juries and taught those on his trial teams to do so. Perhaps because of his Show-Me State roots, he knew a jury wanted to be shown why his client was right. And show them he did, in an uncannily believable and likeable way. Think Perry Mason as portrayed by Jimmy Stewart. Juries did not side with Bob because he wowed them— they went with him because they trusted him. As a lawyer, Bob has been honored in almost every way possible. He has been named the Dallas Bar Association’s Trial Lawyer of the Year, the Texas Bar Foundation’s Ronald D. Secrest Outstanding Trial Lawyer, and SMU’s Distinguished Alumni for Private Practice. He’s also a member of the American College of Trial Lawyers, the American Board of Trial Advocates and certified in Civil Trial Law by the Texas Board of Legal Specialization. He is routinely named among the state’s top lawyers by Super Lawyers, D Magazine, and Texas Monthly, and has tried cases later named among the outstanding defense verdicts of the year by American Lawyer. Bob is a significant presence in the community. He played a key role in building First Baptist Academy, where he served as Chair of the Board. In 2010, First Baptist Academy awarded Bob and his wife, Jody, The Orville and Esther Beth Rogers Award for Service in the Area of Christian Education. From the LifeSavers Foundation to his work at an area suicide prevention hotline, Bob is committed to service and to helping others. The Dallas Bar Foundation is honored to award its inaugural Fellows Justinian Award to Bob Mow. The award will be presented on March 26, 2014, at a luncheon at the Belo Pavilion. To purchase tickets for the luncheon visit www.dallasbarfoundation. org or contact Elizabeth Philipp at (214) 220-7487. HN Greg Taylor is a partner at Diamond McCarthy, LLP. He can be reached at gtaylor@diamondmccarthy.com
Inside 9 Mandamus Review of Orders Granting New Trials 11 Subpoena Power Under Amended Rule 45 13 Where Do I Start in Drafting a Civil Jury Charge?
Focus
Focus Appellate Law/Trial Skills
Appellate Law/Trial Skills
Supreme Court Imposes New Requirements on Attorney’s Fees by Dan Callahan
Two recent cases effectively impose specific evidentiary requirements to successfully recover attorney’s fees under a fee shifting statute: El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) and City of Laredo v. Montano, 2013 WL 5763179 (Tex. Oct. 25, 2013). These opinions indicate that litigants now can expect a heightened level of appellate scrutiny of fee awards. The lesson to be learned from these two cases is simple: keep contemporaneous time records, and use them as evidence to support a request for fees. Olivas involved an award of fees under the Texas Commission on Human Rights Act to a successful plaintiff’s counsel. Montano involved an award of fees under the Property Code to a property owner who had successfully defeated a condemnation proceeding. In both cases, the successful lawyers requested a specific award, testified that they had worked sufficient hours to justify the amount requested, that the work was necessary, and that the requested fee was reasonable given the nature of the case and the result obtained. The Supreme Court reversed fee awards in both cases for the same reason—the evidence at trial had been insufficient to enable the trial court to make an informed decision about what constituted a reasonable fee for necessary services in that case. In each, the Court held that it was an abuse of discretion to make any fee award in the absence of sufficient evidence and remanded the case for a fee determination to be made in a way that would be consistent with the standards set out in the opinion. The party applying for a fee award has the burden of proof. That party should introduce evidence of (1) the nature of the work, (2) who performed the services and their rates, (3) when the services were performed, and (4) the number of hours worked. If multiple attorneys or other legal professionals are involved in a case, the evidence must explain which person performed which task or category of tasks, and why. In Olivas, the Court observed that “. . . in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this
information.” Olivas, 370 S.W.3d at 763. “To establish the number of hours reasonably spent on the case, the fee application and record must include proof documenting the performance of specific tasks, the time required for those tasks, the person who performed the work, and his or her specific rate.” Id. at 765. Consequently, conclusory testimony from an attorney, and estimates about how much work he “probably” did, constitutes no evidence at all. In Montano the successful attorney’s testimony that he spent “a lot of time getting ready for the lawsuit,” conducted “a lot of legal research,” visited the premises which were the subject of the condemnation proceedings “many, many, many, many times,” and spent “countless” hours on motions and depositions was held to be no evidence at all of a reasonable fee. The trial court must ensure that a fee award does not gouge the opposing litigant. The Supreme Court believes that fee shifting statutes provide incentives to expend excessive time on unjustified work and a disincentive to early settlement. To ensure that these incentives do not result in an overly generous award, the evidence at trial must be sufficiently specific to enable the trial court to evaluate the work that was done, why it was necessary and why the charges were reasonable. Fee awards cannot include charges for duplicative, excessive or inadequately documented work. In light of these two opinions, any attorney who seeks an award of fees should offer detailed, contemporaneous time records into evidence and walk the trial court or finder of fact through them. That lawyer should be prepared to explain why each task or category of tasks was necessary, and why the person performing each task was the right person to do that. While these opinions do not say that this is the only way to properly prove up a request for fees, they come awfully close. Anyone who relies on less extensive documentation in support of a request for fees is taking a huge risk that fees which his or her client is entitled to recover will not be HN awarded. Dan Callahan is a shareholder at Kessler & Collins, P.C. He can be reached at dpc@kesslercollins.com.
Professionalism Tip A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed