August 2020 Headnotes: Appellate Law/Antitrust & Trade Regulation

Dallas Bar Association

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Focus | Appellate Law/Antitrust & Trade Regulation

August 2020 Volume 45 Number 8

Kilgore Law Firm Kicks Off 2021 EAJ Campaign

BY MICHELLE M. ALDEN

Each year, the Equal Access to Justice (EAJ) Campaign relies primarily on local law firms, corporations, and individuals to fund the operations of the Dallas Volunteer Attorney Program (DVAP). However, a unique source of funding surfaced this year to kick off the EAJ Campaign from the Kilgore Law Firm, a boutique litigation law firm.

Kilgore’s motion for a cy pres distribution of $27,000 from funds left over in a class action settlement to the EAJ Campaign was granted. As cited by the Court, “The equitable doctrine of cy pres ensures that the undistributed or unclaimed funds are put to their ‘next best compensation use’.”

Ted Anderson, managing member of Kilgore Law Firm, and an attorney on the class action case, is grateful that the funds go to good use. “All of us at Kilgore Law work hard to be good stewards of the Dallas legal community and the people we serve. I’m grateful to Judge Karen Gren Scholer for her decision in making this award to a terrific organization which delivers pro bono legal counsel to Dallas’s poorest citizens. Our attorneys are active members of the Dallas Bar Association and many sit on its governance committees. We’re excited about this unique opportunity to support the Bar’s charitable endeavors.”

Despite the many challenges DVAP and the Dallas community at large face during the ongoing pandemic, the EAJ

Focus

Ted Anderson

Campaign continues with new leadership for this year.

“I am excited that Vicki Blanton, Rocío Cristina García Espinoza, and Mey Ly-Ortiz will Co-Chair the 2021 Equal Access to Justice Campaign. They did a fantastic job in the 2020 Campaign that raised $1 million for legal services to the poor in Dallas County. We say that ‘it takes a village’ to make these campaigns a success. So, when Vicki, Rocio, and Mey call or write you, please be willing to give both your time to help

and a contribution. We know this will be a challenging year, but with everyone’s help we will continue to make a difference in the community,” stated DBA President Robert L. Tobey.

“I am very proud to be part of the Dallas legal community because of the high value and emphasis placed on pro bono legal representation for those who are financially challenged within our city,” said Ms. Blanton, Assistant Vice President-Senior Legal Counsel, Tax & Benefits at AT&T. “I am even more

honored to CoChair the 2021 EAJ Campaign to help ensure that more people are able to get legal advice, counseling and assistance when they are in a critical situation without being concerned that their lack of financial resources will be a barrier to access the legal system. The global pandemic has both highlighted and exacerbated the issues faced by those who can least afford yet another crisis. Pro bono legal services provide not only hope, but tangible help to our neighbors during some of the most stressful times of their lives. Being part of the solution lifts us all to be a caring community and a stronger society.”.

Ms. Espinoza,

Vicki Blanton

Rocío Espinoza

Mey Ly-Ortiz

Senior Counsel at continued on page 22

Appellate Law/Antitrust & Trade Regulation

Judgment Pending Appeal: Supersedeas Bonds and Other Security

BY BRENT RUBIN

Ordinarily, a party that wins a final judgment can start trying to execute on the judgment 30 days after the judgment is entered. A losing party, called a judgment debtor, can post a supersedeas bond or other security to suspend enforcement of the judgment while an appeal is pending. A supersedeas bond is therefore an important tool for a judgment debtor that believes it has a legitimate chance of getting the judgment reversed on appeal. However, this tool should be used with some caution as it can provide a ready source of funds to satisfy the judgment if affirmed. This article focuses on how enforcement of a judgment can be suspended in Texas

state courts, which is addressed primarily by Texas Rule of Appellate Procedure 24 and Texas Civil Practice and Remedies Code Chapter 52.

While a judgment debtor most often suspends enforcement of a judgment pending appeal by filing a bond, Texas law provides for additional methods of superseding the judgment. In lieu of a bond, a debtor can deposit funds with the clerk of court, which saves the debtor the costs associated with a commercial bond. Another option is for the debtor to provide “alternate” security approved by the court. The parties can also suspend enforcement of the judgment pending appeal through a written agreement filed with the court.

When a judgment requires the pay-

Inside 8 Quick Tips for a Winning Appellate Brief 12 Ethics and Professionalism in Appellate Advocacy 20 Ten Facts about the 19th Amendment 23 Why You Need an Antitrust Compliance Program

ment of money, the security must cover the amount of compensatory damages and costs awarded in the judgment plus interest during the estimated duration of the appeal. The amount of the bond does not include exemplary damages and typically does not include attorneys’ fees. The bond is capped at 50 percent of the judgment debtor’s current net worth or $25 million, whichever is less. If a debtor has a negative net worth, the bond amount will be $0.

When the amount of bond is based on the debtor’s net worth, the debtor must file an affidavit stating its net worth, as well as the assets and liabilities used to calculate its net worth. A creditor can file a contest of the debtor’s net worth in the trial court and then conduct discovery on the issue.

The trial court will conduct a hearing, at which the debtor has the burden of proof, and issue an order determining the debtor’s net worth.

Different rules apply to non-monetary judgments. When a judgment awards an interest in property, the bond is based on the value of the property interest.

For other judgments, such as a judgment entering a final injunction, a trial court can decline to supersede the judgment if the judgment creditor posts security protecting the judgment debtor in the event the court of appeals determines the relief granted by the trial court was improper. If the court allows this type of judgment to be superseded, the security

The 2020 DBA Membership Directory is now available!

Check out the directory and legal resource guide used by Dallas attorneys!

To request a copy of the new directory, contact pictorial@dallasbar.org.

continued on page 10

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All meetings and events subject to change in connection with the ongoing coronavirus situation.

Please check www.dallasbar.org and DBA Online enewsletter for current notices.

The DBA has formed a Coronavirus Task Force, which will provide members with up-to-date information in one location about legal ramifications of COVID-19, including CLE, legal research, and Dallas courts’ COVID-19-related orders and procedures. Go to www.dallasbar.org/COVID19Resources to see the DBA’s webpage on COVID-19.

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 Grecia Alfaro 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.

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President’s Column

Headnotes

The 100th Anniversary of the Ratification of the 19th Amendment and More

BY ROBERT TOBEY

For almost two years, we have been planning the DBA’s celebration of the 100th anniversary of the ratification of the 19th Amendment, guaranteeing women the right to vote. We are excited to welcome Nina Totenberg as our speaker at noon on August 26, 2020! She will be interviewed by Judge Tonya Parker.

Ms. Totenberg is an award-winning legal affairs correspondent for National Public Radio whose reports are heard on All Things Considered and Morning Edition. She has won every major journalism award in broadcasting and is the only radio journalist to have won the National Press Foundation award for Broadcaster of the Year. The focus of the program will be the history of the suffragette movement, what we have accomplished in gender diversity in the last 100 years, and where we go from here.

In planning my columns for this year, I knew the August column would focus on this event. But with recent events—including the death of George Floyd on Memorial Day—I concluded this column must be broader, and address not only gender equality, but the continuing havoc that systemic racism wreaks upon our country and our efforts to build a better society.

At the outset, I must confess my own ignorance of this issue for much of my life. Growing up in Preston Hollow, I led a sheltered life. In grade school, I watched with growing interest the work of Dr. King, Malcolm X, the Black Panthers, and anti-war activists, and events like Muhammad Ali’s refusal to be inducted into the Army, the “summer of love” in San Francisco, the assassinations of Dr. King and Bobby Kennedy, the turmoil of the summer of 1968, the election of Richard Nixon, and Woodstock.

But these events really did not give me any insight into what it meant to be Black in America during the 1960s and 1970s.

My only real experience with the African American community was when desegregation orders led to mandatory busing of students to Hillcrest High School. Generally, the kids who rode the buses did not want to be bused, and the Hillcrest kids did not accept the new students. Indeed, the desegregation efforts led to “white flight” from the public schools.

From Hillcrest High School, I went to the University of Pennsylvania and then UT Law School—both of which were almost entirely white at the time. I started law practice in 1980, and the legal community was mostly white males, though white women finally were starting to enter the profession in greater numbers. Again, though, there were very few people of color in the profession at that time.

My increased involvement in DBA during the early 2000s probably was the first time in my life that I interacted with people of color in any meaningful way. As I got to know more people of color and hear their stories, I finally began to understand the disparity of opportunity in our country—that the minority pathway to “the American Dream” is far more arduous. For the first time in my life, I began to understand the reality of “white privilege.”

When Barack Obama was elected in 2008, I thought our nation finally had turned the corner on race. And though we made positive strides—including electing a race and gender

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diverse bench in Dallas County—my belief was flat wrong. The appearance of a “race-neutral” society was a mere façade.

While the death of George Floyd and others in recent years has had a visual impact on all of us that no one will ever forget, the underlying problem of systemic racism is much more pervasive and has a bigger impact on our society. For every George Floyd, there are millions of instances of systemic racism, such as the racial profiling that Evan Brown (Shonn and Clarence Brown’s son in high school) experienced at Sonic. For those of you who are not familiar with this incident, Evan was treated fine at Sonic so long as he went there with his white friends.

On the one occasion where Evan went to Sonic with his black friends, the manager told the kids they had to leave and threatened to call the police. There is nothing isolated or unusual about this incident.

Until we successfully tackle systemic racism, no improvements in police departments designed to eradicate brutality will truly make this a better place for people to live.

After all of these years and missed opportunities, I finally get it! As a bar association, we need to dedicate ourselves to making our city, our county, and our state a better place to live—one where everyone has the meaningful opportunity to achieve the American Dream. I am not naïve enough to think that will be accomplished this year, next year, or 10 years from now. But if we never start, we never will get there. To paraphrase an old expression, even the longest journey begins with a single step.

The DBA and the Sister Bars formed the Allied Dallas Bars’ Equality Task Force in June to help. The Equality Task Force will not only battle racism, but will promote programs and initiatives on diversity, equity, inclusion, and belonging issues.

Already, the Equality Task Force is supporting Project Unity’s Together We Can effort (www.TogetherWeCan.one). For those of you who have been to a “Together We Dine” event, you know the conversations can be difficult and uncomfortable, but they lead to greater understanding. The Together We Can program is designed in part to get people to have difficult conversations with others of opposing viewpoints and helps answer the question of “what can I do to make change.” Knowledge and understanding will go a long way in this fight.

In early July, we encouraged members to watch the movie Just Mercy, a film that tells the story of civil rights lawyer Bryan Stevenson, who successfully appealed the murder conviction of Johnny D. McMillan, who spent five years on Alabama’s death row for a murder he did not commit. On July 9, we had a great discussion about the movie with Judges Ada Brown and Barbara Lynn, David Horan, Will Pryor, and Professor Cheryl Wattley. I hope it will be the first in a series.

The bottom line is that we have a long way to go to ensure that this country affords everyone an equal opportunity to succeed regardless of race, gender, religion, or sexual orientation. I want your suggestions about what we can do during the rest of 2020 and beyond to move the needle. If you want to help, we are eager to have you! With your help, we can and will make a difference!

Robert

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Published by: DALLAS BAR ASSOCIATION

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS President: Robert L. Tobey President-Elect: Aaron Z. Tobin First Vice President: Krisi Kastl Second Vice President: Cheryl Camin Murray Secretary-Treasurer: Monica Lira Bravo Immediate Past President: Laura Benitez Geisler Directors: Vicki D. Blanton (Vice Chair), Rob Cañas, Jonathan Childers, Hon. Tina Yoo Clinton, Stephanie Culpepper (President, Dallas Women Lawyers Association), Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Rasheed Foster, Justin Gobert (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Kate Kilanowski, Bill Mateja (Chair) , Hon. Audrey Moorehead, Lindsey Rames, Bill Richmond, Mary Scott, Andrew Spaniol (President, Dallas Asian American Bar Associations), KoiEles Spurlock (President, J.L. Turner Legal Association), Amy M. Stewart, and Mary Walters Advisory Directors: Whitney Keltch Green (PresidentElect, Dallas Association of Young Lawyers), Marissa Hatchett (President-Elect, J.L. Turner Legal Association), Stacey Cho Hernandez (President-Elect, Dallas Asian American Bar Association), Jennifer King (PresidentElect, Dallas Women Lawyers Association), and Javier Perez (President-Elect, Dallas Hispanic Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rebekah Brooker, Rob Crain, Michael K. Hurst, David Kent HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: Andy Jones and Beth Johnson Vice-Chairs: James Deets and Elisaveta (Leiza) Dolghih Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Dockery, Angela Downes, Sheena Duke, Charles Dunklin, Alex Farr, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, 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 Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interview: Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Director: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2020. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

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DBA Loses Past President John Estes

Focus

Appellate Law

Findings of Fact: Stick to the Point

STAFF REPORT

The Dallas Bar Association lost its 64th president on June 14, 2020. He was 87 years old. John Lancaster Estes was born on March 9, 1933, in Waxahachie, Texas, and attended the University of Texas, earning both a bachelor’s degree in business in 1955 and a law degree in 1956. Mr. Estes married his high school sweetheart, Melba Hancock Estes, on August 7, 1954, and they were married 61 years at the time of her death in 2016.

Upon graduation from law school, he spent two years in the U.S. Army in El Paso, after which he returned to Austin and served as an Assistant Attorney General for three years. In 1961, the Estes’ moved to Dallas and he joined the firm of Burford, Ryburn & Ford, where he was an associate and then a partner. He later joined Locke, Purnell, Boren, Laney & Neely in 1969. He was a civil trial lawyer during his active practice until 1991 when he became a mediator and arbitrator, having mediated over 1,300 disputes.

He retired from the firm, now known as Locke Lord in 2011, after his association with the firm for over 42 years.

In 1965 he gained special attention at the DBA for his work as chairman of Law Day, U.S.A. Mr. Estes has large credit for establishing the Judicial Evaluation Poll and he chaired the Committee for a Qualified Judiciary from 1989 to 1993. During his presidency the Dallas Bar Association celebrated its centennial anniversary.

Mr. Estes was a life fellow of American Bar Foundation, the Texas Bar Foundation, and the Dallas Bar Foun-

BY DAVID S. COALE AND HOLLY STUBBS

John Estes

dation. From 1974 to 1977 he was on the State Bar of Texas board of directors, and from 1980 to 1986 he was the DBA representative to the ABA’s House of Delegates.

In 1988 he received the “Trial Lawyer of the Year” Award from the DBA, in 2009 he received the Fellows Award from the Dallas Bar Foundation, and in 2012 he received the Outstanding 50 Year Lawyer Award from the State Bar Foundation.

Mr. Estes remained an active member throughout his career and continued to give much to the organization and the community. He will be truly missed.

HN

Well drafted findings of fact can be powerful advocacy for your client. In the trial court, they can help educate the judge about the specific requirements of claims and defenses. On appeal, they can be critical to appellate judges who want to understand the basis of a judgment after a bench trial.

Despite the importance of good findings, the rules are largely silent about how detailed they should be. Two recent opinions from the Dallas Court of Appeals now address that topic. They explain that trial courts should focus on factual findings that directly relate to disputed ultimate issues that are necessary to support the judgment.

The first case, Guillory v. Dietrich, 598 S.W.3d 284 (Tex. App.—Dallas 2020, pet. denied), considered a record with “206 findings of fact, plus roughly nine pages of conclusions of law that include numbered and unnumbered paragraphs, citations to cases and statutes, and statements that appear to be additional fact finding.” The court observed that “[m]any fact findings in this case have no obvious relevance to any ultimate issue,” because they “concern evidentiary matters instead of controlling issues.” As an example of such an unnecessary finding, the court noted one stating that a party “was employed

by Procter & Gamble for over 40 years.”

The court then held: “A trial court should make findings as to only disputed facts significant to the case’s ultimate issues. Findings that a jury would be asked to make in a case may be an appropriate guide.” It concluded with an admonish-

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ment that “excessive findings that obscure rather than clarify the judgment’s basis may lead to consequences such as remand for proper findings or sanctions.”

Several weeks later, in King Aerospace, Inc. v. King Aviation Dallas, Case No. 05-19-00245-CV, 2020 WL 2079177 (Tex. App.—Dallas 2020, no pet.), the court of appeals found no error in a trademark case, observing that factual findings about alternative doctrines, or legal theories that are not controlling, are unnecessary.

These two opinions strongly suggest that the Texas Pattern Jury Charge is the best starting point in the preparation of findings of fact, as well as a good guide to the required level of detail. Absent a pattern Texas charge, a good example of a charge actually submitted in a similar case would also serve this purpose. A quality charge necessarily defines the “ultimate issues” in a case, which the Texas Supreme Court says are “those factual determinations submitted to a jury that are necessary to form the basis of a judgment.”

Of course, just as the pattern charge is not appropriate for every jury case, its framing of the ultimate issues will not necessarily be correct for every matter tried to the bench. The Guillory and King Aerospace cases counsel, however, that modification of a pattern submission should not become a license to include extraneous detail. Overly-detailed findings risk obscuring the trial court’s conclusions on the true “ultimate issues” and may prove counterproductive in the long run. HN David S. Coale is a Partner and Holly Stubbs is an Associate at Lynn Pinker Hurst & Schwegmann LLP. They can be reached at dcoale@lynnllp.com and hstubbs@lynnllp.com, respectively.

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

2020 DBA 100 CLUB MEMBERS THANK YOU! We are proud to recognize the following firms, organizations, corporate legal departments, government agencies and law schools for their 100% support of the Dallas Bar Association as members of the 2020 DBA 100 Club!

The DBA 100 Club is a distinguished membership recognition category that reflects a commitment to the advancement of the legal profession and involvement in the community. The DBA 100 Club consists of firms with two or more attorneys as well as corporate legal departments, organizations, law schools and government agencies that have 100% membership in the DBA. Recognition is free and given to the 2020 DBA 100 Club members in our Headnotes publication, at our Annual meeting in November and in the 2021 DBA Membership Directory.

Please note that the DBA 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s membership due to changes in attorney rosters each year.

It is not too late to become a member of the 2020 DBA 100 Club! Please submit your request via email including 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 organization will be added to the 2020 DBA 100 Club for recognition at our Annual Meeting and the 2021 DBA Directory!

THANK YOU FOR YOUR SUPPORT OF THE DALLAS BAR ASSOCIATION! DBA 100 Club Members as of July 14, 2020 2 to 5 Attorneys Adair, Morris & Osborn, P.C. Adam L. Seidel, P.C. Addison Law Firm P.C. Albert & Stobaugh, PLLC Aldous Walker LLP Alexander Dubose Jefferson & Townsend LLP Anderson & Brocious P.C. Anderson Grossman PLLC Arnold & Freeman Ashcraft Law Firm Atkins, O’Toole & Briner, L.L.C. Atwood Gameros LLP Avant Law Firm Barbee & Gehrt, L.L.P. Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Bocell Ridley, P.C. Braziel Dixon LLP Broden & Mickelsen Brusniak Turner Fine LLP Campbell & Associates Law Firm, P.C. Capshaw & Associates Carlock & Gormley Chen Dotson, PLLC Chris Lewis & Associates, P.C. Christiansen Davis LLC Clark Law Firm Clark, Malouf & White, LLC Crain Brogdon Rogers, LLP Davenport & Epstein, P.C. Davis Stephenson, PLLC Deans Stepp Law, LLP Duke Seth, PLLC Espinar Law, PLLC Exall Legal Advisors, PLLC Fisher & Welch, P.C. Francis & Totusek, L.L.P. Fuller Mediations FurgesonMalouf Law PLLC G.J. Chavez & Associates, P.C. Gauntt Koen Binney & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Grau Law Group, PLLC Grogan & Brawner P.C. Hahn Law Firm, P.C. Hamilton & Squibb, LLP Hance Law Group Hayward & Associates PLLC Henley & Henley, P.C. Herrera & Herrera Hitchcock Evert LLP Hoge & Gameros, L.L.P. Hollingsworth Walker Horton & Archibald, P.C. Hosch & Morris, PLLC Howard & Spaniol, PLLC Howell & Willingham, PLLC Hunt Huey PLLC Iola Galerston, LLP

Jameson & Powers, P.C. Jenkins & Watkins, P.C. Johnston Tobey Baruch, P.C. Jordan Monk Reber, PC Kabani & Kabani, PLLC Kellett & Bartholow PLLC Kinser & Bates, L.L.P. Koons Real Estate Law Langley LLP Law Office of Andrew & Mark Cohn Law Offices of Maduforo & Osimiri Law Offices of Otstott & Jamison Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lawrence Law PLLC Lemons & Hallbauer, LLC Leu & Peirce, PLLC Lidji Dorey & Hooper Lillard Wise Szygenda PLLC Lira Bravo Law, PLLC Lisa E. McKnight, P.C. Little Pedersen Fankhauser LLP Lyons & Simmons, LLP Madson Castello, PLLC Marshall & Kellow, LLP McDowell Hetherington LLP Miller Mentzer Walker, P.C. Mincey-Carter, PC Mitchell & Jenkins PLLC MKim Legal Musgrove Law Firm, P.C. Norris & Weber, PLLC Orenstein Law Group, PC Owen & Fazio, P.C. Pace & Pace, L.L.P. Peeples & Kohler, P.C. Perry Law P.C. Potts Law Firm, LLP Prager & Miller, P.C. Quaid Farish, LLC Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. RegitzMauck PLLC Richardson Koudelka, LLP Riney Packard PLLC Ritter Spencer PLLC Roy Petty & Associates, PLLC Russell & Wright, PLLC Sawicki Law Schubert & Evans, P.C. Schuerenberg & Grimes, P.C. Scroggins Law Group, PLLC Sessions Fishman Nathan & Israel LLP Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Skierski Jain PLLC Smith Kendall P.C. Smith, Stern, Friedman & Nelms, P.C. Spencer & Johnson, PLLC Starr Law Firm, P.C. Stromberg Stock, PLLC The Bhatti Law Firm, PLLC The DeLoney Law Group, PLLC The Law Office of Ray R. Singh The Nacol Law Firm, P.C. The Perrin Law Firm

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

Focus

A ugust 2020

Appellate/Antitrust & Trade Regulation

Brief and Appealing: Quick Tips for a Winning Appellate Brief

BY BETH M. JOHNSON

Drafting a clear, easy-to-read, persuasive brief requires technical knowhow and a touch of finesse. If that is your goal, one of the best ways to improve is to listen to the judges and give them what they want. Below are a few tips I have gleaned from appellate judges over the years.

1. Know Your Audience

When writing anything, you should always first consider, “Who is my audience?” In writing to the trial court, the facts come first. If you can convince the trial court to agree with your client’s version of events, quite often the legal analysis is straightforward. In contrast, the appellate court focuses on application of legal precedent first and foremost.

Overly passionate, argumentative factual accounts that might persuade the trial court are generally less effective in appellate briefs. Appellate courts want briefs that swiftly get to the point.

What is the basis for appeal? Why did the trial court get it wrong or right?

What relief is requested? Put your argument into context at the outset; do not wait until page ten to finally tell the court your issue.

Remember that appellate judges often read briefing on a tablet or other electronic device. This has led many judges to strongly dislike footnotes in briefing. Having to scroll to the end of a page to see “Id.” and then relocate their place in the body of the text is annoying and wastes time—neither of which you want to inflict on the arbiter of your case. A well-placed footnote can be useful from time to time but keep citations in the body of your brief.

Another tip: when citing to a PDF document such as the clerk’s record, sometimes there is discrepancy between the page numbers of the record versus the PDF. Appellate judges prefer to see the PDF page numbers in your citations.

That makes it faster and easier to locate your citation in electronic format. I like to include both the PDF and the writ-

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ten page number in my record references, but be sure whatever method you use is 100 percent clear for the reader.

For example, if a multi-volume clerk’s record is consecutively paginated, and volume 2 starts on page 356, to refer to that first page, I would cite 2CR:356(1) with a note that the number in parenthesis refers to the PDF page number.

2. Be Strategic

Carefully consider the issues you want to present on appeal. Choose your best three to five issues and stop there. Identify your strongest issue, present it first, and work your way down from there. Do not waste your—or the court’s—time on weak issues, which only distract from the strong ones.

3. Be Concise

Remember IRAC from law school?

State your Issue, state the Rule (of law), Apply the law to the issue, quickly Conclude, and move on. Choose a roadmap and follow it: Appellant wins because A, B, and C. Then clearly explain A, B, and C. Use IRAC to check yourself throughout the drafting process. Force yourself to cut arguments down to their core. Be willing to lop off that perfect sentence or paragraph if it is not essential.

Brevity is the name of the game. Not only do the Texas Rules of Appellate Procedure impose word limits on briefs, but fewer words often mean better communication.

Use active voice whenever possible.

Who is the actor? “The order was signed by the trial court” or “The trial court

signed the order.” This small change not only helps your word count but is simply more interesting to read.

Do not use extra, meaningless words.

If something is “clearly” true, then you do not need the word “clearly”—same goes for very, extremely, etc. Use more precise and powerful descriptors instead of these extra adverbs.

Do not repeat yourself. Try reading your brief backwards—start with the last paragraph and work towards the first. This sometimes helps identify repetitive statements you may overlook when reading from start to finish.

4. Be Honest

Do not try to hide your bad facts.

The court has the appellate record and will review it—especially if the other party’s facts do not match up with your account. Be candid and explain why the law favors your position notwithstanding the bad facts. Dishonesty in your factual presentation casts doubt on your interpretation of the law and could follow you through your career.

5. Avoid Exaggeration

While bluster and grandiosity might sway a jury, it does not impress the appellate bench. You are likely not presenting the most egregious fraud the court has ever seen. AND THE COURTS DO NOT LIKE ALL CAPS or excessive bolding, italicizing, or underlining.

Such tactics distract the reader. Use precise words to convey your message. HN

Beth M. Johnson is an attorney at Calabrese Budner, LLP and can be reached at beth@calabresebudner.com.

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

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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 ugust 2020

Final Words on Finality?

BY SCOTT P. STOLLEY

Courts have long struggled with determining when a judgment is final and, therefore, appealable.

Two recent cases—from the Texas Supreme Court and the U.S. Fifth Circuit—illustrate why such questions are difficult. As in those cases, the problem often arises when the plaintiff obtains a disposition as to only some defendants.

Bella Palma

The Texas Supreme Court revisited the subject of finality in Bella Palma, LLC v. Young, 2020 WL 1898543 (Tex. Apr. 17, 2020), providing important guidance for drafting and interpreting judgments.

Although the summary judgment in Bella Palma contained Mother Hubbard language (“All relief not granted herein is denied. This is a final judgment.”), the judgment failed to mention a nonserved defendant. After the court of appeals requested clarification about the judgment’s finality, the trial court entered an order unambiguously confirming that it intended to render a final judgment.

Nevertheless, the court of appeals reviewed the entire record and held that the judgment was interlocutory, because it did not dispose of the claims

against the nonserved defendant.

The Supreme Court held that the court of appeals erred by performing its own record review instead of giving effect to the trial court’s unmistakable expression of finality: We have previously held that a judgment is final either if “it actually disposes of every pending claim and party” or “it clearly and unequivocally states that it finally disposes of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The court of appeals mistakenly read Lehmann to require record evidence of finality and an unequivocal expression of finality. … Instead, a clear and unequivocal statement of finality must be “given effect” even if review of the record would undermine finality.

Id. at *2 (emphasis in original). The Court held that the trial court’s clarification order should have been taken at face value as a clear indication of finality. Id. The Court provided this clear advice for drafting a judgment: “Although no ‘magic language’ is required, a trial court may express its intent to render a final judgment by describing its action as (1) final, (2) a disposition of all claims and parties, and (3) appealable.” Id. This is an easy prescription to follow, but if the appellate court questions final-

ity, Bella Palma teaches that the next step is to abate the appeal and ask the trial court to clarify. A clarification order must be given effect when it clearly and unequivocally indicates finality.

Williams

In Williams v. Taylor Seidenbach, Inc., the U.S. Fifth Circuit—in a split, en banc decision—dealt with the socalled “finality trap.” 958 F.3d 341 (5th Cir.) (en banc). This trap occurs when the plaintiff dismisses a defendant without prejudice, which allows the plaintiff to sue that defendant later. This ability to sue a dismissed defendant means the case is not final as to other defendants, even those who have prevailed on the merits.

In Williams, several defendants obtained summary judgment, and the plaintiffs then voluntarily dismissed the remaining defendants under Federal Rule of Civil Procedure 41(a). As to the defendants that obtained summary judgment, the plaintiffs then obtained a Rule 54(b) partial final judgment.

The question was whether the plaintiffs had a final judgment that they could appeal as to the defendants that obtained summary judgment. The majority ruled that the summary judgment was made final by virtue of the Rule 54(b) partial final judgment.

Rule 54(b) states in part: “When an action presents more than one claim for relief … or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” Essentially, this rule gives the district court latitude to carve out some claims for treatment as final, appealable claims.

The Fifth Circuit majority held that this rule created a final, appealable judgment as to the defendants that had obtained summary judgment. Id. at 349.

This was true even though the plaintiffs could revive their claims against the voluntarily dismissed defendants.

The majority also listed three other ways the plaintiffs could have obtained a final, appealable judgment: (a) by dismissing the remaining defendants with prejudice under Rule 41(a); (b) by amending their complaint to remove claims or parties under Rule 15(a); or (c) by obtaining a severance order under Rule 21.

These cases show that while finality can be tricky, careful attention to the judgment and the procedural rules can readily solve any problem.

HN Scott P. Stolley is a solo appellate lawyer, who can be reached at scott@appellatehub.com.

Judgment Pending Appeal: Supersedeas Bonds and Other Security CONTINUED FROM PAGE 1

must adequately protect the judgment creditor against loss or damage that the appeal might cause.

For both monetary and non-monetary judgments, a debtor can request that the bond be set at a lower amount than that required by the rules outlined above. After notice and a hearing, if

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A party dissatisfied with the trial court’s ruling on supersedeas issues can file a motion for relief in the court of appeals, which is typically reviewed for abuse of discretion. The motion can be based on both the conditions at the time of the trial court’s order and on changed conditions. The Supreme Court of Texas can review the court of appeals’ ruling through a petition for writ of mandamus.

To obtain the protection from the adverse judgment, a judgment debtor cannot rely on security posted by a codebtor. Debtors are permitted to file joint security, but if a judgment is reversed

against one debtor but not the other, the debtor who has won on appeal risks not being able to recover any of the security that was jointly posted.

Finally, if a party is unable to file a bond or make a deposit in lieu of bond, a party can, pursuant to a court order, provide “alternate” security to suspend enforcement on a judgment. For example, when a debtor has significant but illiquid assets, courts can allow real or personal property to be posted as security or can enjoin the transfer of assets that could be used to satisfy the judgment. A trial court’s injunction cannot interfere with the debtor’s use, transfer, conveyance, or dissipation of assets in the normal course of business.

HN Brent Rubin is an attorney at Carrington, Coleman, Sloman & Blumenthal, LLP. He can be reached at brubin@ ccsb.com.

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D al l as Bar A ssoci ati on l Headnotes 11

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

Column

A ugust 2020

Ethics

Ethics and Professionalism in Appellate Advocacy

BY FRED MOSS

The Texas Disciplinary Rules of Professional Conduct (TDRPC) and the aspirations of the Texas Lawyers’ Creed are mostly discussed in litigation and transaction practice contexts. Rarely are they applied to appellate practice. Here are some ethical and professionalism issues that can arise in appellate advocacy.

TDRPC 1.01 requires competence and diligence. A lawyer taking on an appeal must have the time and know-how to handle the matter alone or with help from someone who knows what must be done: how and when to file, the briefing restrictions, and mastery of the record and the law. The appellate rules of procedure require submissions to be clear, concise and accurate. While it is unlikely that violating these requirements would ever come before a disciplinary committee, a court’s rejection of an improper submission could reflect

badly on the lawyer’s competence and may prompt sanctions.

TDRPC 3.01 requires a determination before filing an appeal or response that it is not frivolous. The TDRPC do not define “frivolous,” but the Texas “Standards For Appellate Conduct,” which closely track the Texas Lawyer’s Creed, provide a useful guide: “An appellate remedy should not be pursued unless counsel believes in good faith that error has been committed, that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted.”

If, after undertaking a criminal appeal and determining there are no appealable issues, the lawyer should file an Anders brief.

For lawyers unfamiliar with the Anders brief, see the Third Court of Appeals’ Local Rule 1, a detailed set of instructions on when and how to file one.

Who decides what issues to present on appeal? TDRPC 1.02 states broadly that

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the client decides the objectives and methods of the representation, and the lawyer decides the means used to achieve those objectives. While the lawyer must consult with the client about the appeal, it is generally held that the lawyer decides what issues to present.

Rule 3.02 prohibits taking actions that unreasonably increase the burdens of the case or delay resolution of the matter. Rule 4.04 prohibits using means that have no substantial purpose other than to delay or burden another party. In the appellate context, a lawyer cannot, for example, seek extensions of time in which to file a submission to harass the opposing party.

TDRPC 3.03 is especially pertinent to appellate lawyers in requiring citation of “authority in the controlling jurisdiction known … to be directly adverse to the position of the client and not disclosed by opposing counsel.” As officers of the court, lawyers must endeavor to ensure the court has all controlling authority. The “Ethics Question of the Month” featured in the May 2020 Texas Bar Journal deals with this issue quite well and indicates that there is Texas authority for the proposition that directly adverse opinions by sister courts of appeals are “controlling authority.”

A lawyer may believe the trial court’s rulings were unfair, biased, stupid, ignorant, or all of the above. However, an appellate brief is not the place to vent about the trial court. TDRPC 8.02 prohibits a lawyer from making a statement “with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” Good faith complaints about a judge’s performance should be made to the proper judicial disciplinary authority.

A brief is also not an opportunity to rail

against opposing counsel. The Texas “Standards for Appellate Conduct” admonish lawyers to “treat each other and all parties with respect.” “Counsel also serve the Court by respecting and maintaining the dignity and integrity of the appellate process.”

If appellate counsel learns that a fact or authority relied on in their submission to the court is not true or does not support the argument for which it was cited, TDRPC 3.03 requires counsel to correct the submission. And, of course, counsel must never, in the words of the Standards, “misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities.”

TDRPC 8.04 prohibits deceit and misrepresentation. Does this preclude plagiarism in appellate briefs? Courts have admonished counsel for including large portions of court opinions, books and others’ briefs without attribution. What about “ghost writing” a pro se’s brief and not disclosing it? This has been widely condemned by the courts in the past, but increasingly it is being accepted as a way to “unbundle” legal services to make them more accessible.

There are many other ethical and professionalism issues that can arise in appellate practice. The ethics rules and the professional Standards provide appellate lawyers a basis for rebuffing client demands that they act unethically or uncivilly.

Finally, adhering to the rules and standards ultimately benefits the client and the lawyer.

HN Fred Moss is an emeritus Professor of Law at the S.M.U. Dedman School of Law, Dallas, Texas. He has taught, consulted and lectured on legal ethics for over 30 years. He can be reached at fmoss@smu.edu.

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D al l as Bar A ssoci ati on l Headnotes 13

14 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

A ugust 2020

Appellate/Antitrust & Trade Regulation

Preparing for Oral Argument Virtually

BY MICHELLE MAY O’NEIL

Following the shutdown due to COVID-19, the Texas Supreme Court and most of the Texas courts of appeals shifted to hearing oral arguments remotely. We all had to adjust very quickly to the new virtual reality. Here are the lessons I learned from my experience presenting one of the first virtual oral arguments.

You Are Only as Good as Your Technology

The first lesson I learned was your effectiveness is limited by your technology. If you do not have a certain quality of video card in your computer, you cannot use the latest version of the video conferencing software. If you do not have a sufficient speed of internet, your video can lag and pixelate. If you do not have a noise-cancelling microphone, everything that happens near your room will get picked up for all to hear.

So, check your tech before you need it.

Invest in a new computer, hard-wired internet connection, faster speed, external webcam, noise-canceling microphone, and lighting.

Also, make sure you have the correct

software downloaded and updated to the present version. Nothing will shut you down faster than your computer halting everything to do a software update. As luck goes, it would inevitably happen two minutes before your presentation is to begin.

2. Practice With Your Setup

When presenting in person at a court I like to go see the court in advance to get a feel for the setup. Similarly, a few days before the actual day of virtual argument, I set up a practice session with a member of my staff for dress rehearsal. We set up the room, camera, background, desk, and test everything (including my outfit and shoes). Doing that showed me that I needed to make a few adjustments to camera angle, lighting, sound, and content. We had plenty of time to make those adjustments and reconvene for another trial run before the big day.

3. Evaluate Your Space

Everyone debates about the background.

Many of the judges and justices use a virtual background that simulates the courtroom. The virtual background can look weird when you move around during your presentation because it does not necessarily

move with you as fast as you move. If you talk with your hands, it may lose your hands in the background. To reduce this problem, you can try a greenscreen to make a virtual background instead of the video simulated one. I chose to use a large backdrop as the actual background instead of a virtual one.

To me, this looked more professional and eliminated the pixilation issues of a virtual background. I think the more professional you look in the four corners of the screen, the better your presentation will be received.

4. Thinking on Your Feet Isn’t Just a Saying

Several justices have gone on record emphasizing the need for attorneys to do everything they can to make a remote argument as much like an in-person argument as possible. This includes dressing like you are in court and standing during your presentation. In my presentation, it was important to me that I be able to stand because I think better on my feet. I used a podium on my conference table to hold my notes and information I wanted to reference during the presentation.

5. Consider the Lag Time in Questions

One of the biggest challenges was wait-

ing for the lag time in the video when the justices would ask questions. Even just a one-second lag can slow down the interaction. The justices try to be mindful of this by making a hand gesture as they are starting to ask a question to get the presenter’s attention. Even so, if the justice has a slow internet connection it will slow down the delivery of their question. I was trained as an appellate advocate to answer the judge’s question and continue with my argument until there was another question in order to maximize the time to make the necessary points. Instead, in the virtual argument, I found I needed to answer the question and hesitate before moving on to make sure that the question was received and there was no follow up.

As if he had a crystal ball, noted author Richard Susskind predicted in 2013 that appearance in physical courtrooms would become a rarity and virtual appearances would become the norm. Since the nationwide shut down, most appellate courts have shifted to hearing oral arguments remotely. Virtual oral argument requires thought of different logistics than inperson arguments. With preparation and practice, advocacy can still shine through, even over video conference.

HN Michelle May O’Neil is the Senior Shareholder at O’Neil Wysocki Family Law. She may be reached at michelle@owLawyers.com.

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

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D al l as Bar A ssoci ati on l Headnotes 17

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A ugust 2020

Defining the Highly Compensated Worker

BY NATHAN PEARMAN

The U.S. Department of Labor’s new overtime exemption rules went into effect on January 1, 2020, setting the salary threshold workers will need to exceed to qualify for the Fair Labor Standards Act (FLSA) “white collar” exemptions at $35,568 per year, or approximately $684 per week.

In order to be exempt from overtime under the federal FLSA, employees must be paid a salary of at least the new threshold amount and also meet certain duties tests. If employees are paid less than the threshold or do not meet the tests, those employees must be paid 1.5 times their regular hourly rate for any hours worked in excess of 40 hours per work week.

In 2016, the DOL sought to double the previous threshold ($23,660 annualized, or $455 a week), but that provision was enjoined by Judge Amos Mazzant in the U.S. District Court for the Eastern District of Texas before it

could take effect.

The new rule, in conjunction with the new leave rules passed in response to COVID-19, is resulting in employers reclassifying exempt workers to nonexempt status and to raise salary for others above the new threshold.

In addition to the $35,568 salary threshold, the new rule raises the socalled “highly compensated worker” threshold from $100,000 to $107,432.

The proposed version of the DOL’s rule had set that number at around $147,000. The highly compensated employee exemption covers well-paid workers who perform some managerial duties. Employees designated as highly compensated face less stringent requirements for being exempt from overtime.

Here are some nuts and bolts of the new rule for employers as well as tips for how to address the new rules: • Under the new rule, nondiscretionary bonuses and incentive payments (including commissions) paid

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on at least an annual basis may be used to satisfy up to 10 percent of the standard salary level.

• The new rules raise the threshold for overtime exemptions to a minimum salary of $35,568 per year, as well as the threshold for highly compensated employees from $100,000 a year to $107,432 (of which $684 must be paid weekly on a salary or fee basis). This increase is approximately $40,000 less than what DOL initially proposed, and represents the 80th percentile (rather than the 90th percentile) of all full-time salaried workers’ earnings nationwide.

• The “white collar” exemptions require employees to perform certain duties and to earn at least the salary threshold. However, highly compensated employees may be eligible for exempt status if they meet the reduced duties test, as follows: • The employee’s primary duty must be office or nonmanual work.

• The employee must “customarily and regularly” perform at least one of the bona fide exempt duties of an executive, administrative, or professional employee. Note that the new rule does not alter the duties tests.

• The new DOL rule does not include the 2016 proposal to automatically adjust the salary threshold every three years to the 40th percentile of earnings of full-time salaried workers in the lowest-wage census region.

Instead, the new rule does not provide for automatic adjustments to the salary threshold. However, it is stated that the DOL “intends to update these thresholds more regularly in the future,” according to the final rule.

Employers should also assess their employees’ job duties to make sure they satisfy one or more of the “white collar” exemption criteria: • Executive Exemption: the employee’s primary duty is managing the enterprise, a department, or

a subdivision of the enterprise. The employee must customarily and regularly direct the work of at least two employees and have hiring and firing authority (or at least input).

• Administrative Exemption: the employee’s primary duty must be office or nonmanual work that is directly related to the management or general business operations of the employer or the employer’s customers. The employee’s duties must include exercising discretion and independent judgment with respect to “matters of significance.”

• Professional Exemption: the employee’s primary duty must be work “requiring advanced knowledge” in a field of science or learning that is customarily acquired by prolonged, specialized, intellectual instruction or study.

Employers should be assessing whether they should increase employee salaries to fall above the new threshold, or whether it is more financially practical to reclassify an employee as nonexempt and pay overtime. Employers who reclassify employees to nonexempt status need to take careful steps to track affected workers’ work time and pay overtime premiums for all hours worked beyond 40 hours in a work week.

Employers should develop explanations to ensure the reclassified employees are aware that they are not being demoted, and that the changes are based entirely upon the new DOL rule.

Make sure that employees are provided training and instruction regarding systems for time-keeping, tracking overtime, and paying bonuses, and develop plans to manage or limit overtime hours by reclassified nonexempt employees.

HN Nathan Pearman is Senior Counsel at Gordon Rees Scully Mansukhani LLP and can be reached at npearman@grsm.com.

DVAP’s Finest JARED SLADE

Jared Slade is a partner with Alston & Bird.

How did you first get involved in pro bono?

In law school, I participated in a Community Economic Development Clinic and did pro bono via the Volunteer Income Tax Assistance program. But it was when I was a summer associate at a law firm in town that I was taught pro bono was both a way to give back and develop important skills.

What types of cases have you accepted?

I started with some basic estate planning matters and no kids-no property divorces. Then I graduated into a few consumer matters (like a foundation repair dispute). I also accepted a pair of federal court pro bono appointments, including a wage-and-hour defense under the Fair Labor Standards Act. Why do you do pro bono?

Because people need our help.

What impact has pro bono service had on your career?

An immense one—pro bono secured my first client, my first jury trial (and win), and my first formal firm leadership role.

What is the most unexpected benefit you have received from doing pro bono?

Getting in Headnotes as one of DVAP’s Finest. Seriously, though, the mentoring opportunities. Folks are exceptionally open to strategizing about issues in pro bono cases.

Pro Bono: It’s Like Billable Hours for Your Soul.

To volunteer or make a donation, call 214/748-1234, x2243.

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D al l as Bar A ssoci ati on l Headnotes 19

Appellate/Antitrust & Trade Regulation

Practical Tips for Proving Attorney’s Fees After Rohrmoos

BY HON. MARICELA MOORE AND KATHERINE ELRICH

In April 2019, the Texas Supreme Court clarified the evidentiary standards for proving reasonable and necessary attorney’s fees in fee-shifting cases, stating that the lodestar analysis is the only method that applies. Rohrmoos Venture v.

UTSW DVA Healthcare LLP, 578 S.W.3d 469 (Tex. 2019). Prior to Rohrmoos, there were two different methods in fee-shifting cases that courts frequently followed: (1) the Arthur Andersen method, and (2) the lodestar method. Notwithstanding the common application of these tests, the Supreme Court clarified that the lodestar method was developed as a short-hand version of the Arthur Andersen factors and was not intended to be a separate test.

Instead, it was intended to be a focused and objective analysis that reflected most of the Arthur Andersen factors.

To eliminate the inconsistent application of these tests that was prevalent in Texas jurisprudence, the Texas Supreme Court clarified how to correctly apply the lodestar method: [T]he fact finder’s starting point for calculating an attorney’s fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate, and the fee claimant bears the burden of providing sufficient evidence on both counts. [citation omitted]. Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required

to perform the services, and (5) the reasonable hourly rate for each person performing the services.

Once the base lodestar calculation is established, the second part of the lodestar method allows for an enhancement of the fee award based on “specific evidence showing that that higher amount is necessary to achieve a reasonable fee award.” The evidence offered to support an enhancement of the fee award cannot include considerations that were already accounted for in the first step. “Likewise, the base lodestar figure can be adjusted down when it is established, based on considerations not already accounted for in the first step, to be an unreasonably high or excessive fee award, creating a windfall for the prevailing party or its attorney.”

The Supreme Court stressed that the lodestar method is intended to provide an objectively reasonable calculation that reduces the discretion of trial judges, permits meaningful judicial review, and produces predictable results. Given the recent clarification, the following practice tips should be taken into consideration when a party seeks an award of attorney’s fees in fee-shifting litigation: 1. From the onset of litigation, counsel should keep detailed time records that itemize specific tasks. Time estimates based on generalities and the aggregation of tasks in a single time entry are discouraged.

2. Be prepared to produce billing records in discovery. This means that when preparing billing records during the course of litigation, be mindful that the records will need to be redacted to protect against the disclosure of attorney-client communications and attor-

ney work product.

3. The non-prevailing party needs to be prepared to challenge the lodestar calculation. Because there is a presumption that the base lodestar calculation reflects the reasonable and necessary attorney’s fees, the non-prevailing party needs to designate its own expert to challenge the evidence that supports the base calculation.

4. Comply with your obligation to timely designate an attorney as the expert to prove the reasonableness and necessity of attorney’s fees. The Fifth District Court of Appeals held that it was an abuse of discretion for a trial court to enter an award of attorney’s fees when the prevailing party failed to designate an expert to testify regarding the reasonableness and necessity of attorney’s fees.

5. To support the enhancement or a downward adjustment of the base award, be prepared to present specific evidence that does not refer to factors that are already incorporated in the first step of the lodestar calculation.

6. When seeking an award of contingent appellate attorney’s fees, although the evidence required under the lodestar method is not required, the prevailing party is still required to provide opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services.

HN The Honorable Judge Maricela Moore is the Presiding Judge of the 162nd District Court and the Presiding Judge of Civil Jury Services. Katherine Elrich is a Partner at Cobb Martinez Woodward PLLC. She can be reached at kelrich@cobbmartinez.com.

DAYL virtual Freedom Run Saturday, September 12, 7:30 a.m. freedomrun.com Participate virtually in the 20th Annual Freedom Run benefiting the Dallas Assist the Officer Foundation and supporting our first responders and essential workers.

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20 H e a d n o t e s l D a l l a s B a r A s s o ciation

A ugust 2020

10 Quick Facts about the 19th Amendment As we commemorate the 150th anniversary of the 19th Amendment, here are 10 interesting facts to check out. Did you know?

Many leaders of the abolitionist movement to end slavery in the 1 19th century also supported woman

Nebraska, Michigan, Arkansas, New York, South Dakota, and Oklahoma.

While voting rights could no longer be denied because of 3 race or sex, after the 15th and

suffrage in the twentieth century.

Frederick Douglass and Sojourner Truth are examples.

19th Amendments, many voters still faced ballot restrictions, including registration rules, literacy tests, poll taxes, and moral and residency requirements.

Many states granted women the right to vote in state and 2 local elections in advance of the

Doctor and mountaineer Cora Smith Eaton King planted a 4 “Votes for Women” flag at the top of

ratification of the Constitutional amendment. They included Wyoming, Utah, Colorado, Idaho, Washington, California, Oregon, Montana, Arizona, Kansas, Alaska, Illinois, North Dakota, Indiana,

Mount Rainier, in Washington state, in 1909.

The text that would become the National suffrage 19th Amendment in 1920 was 5 organizations printed fliers in 6 first proposed in Congress in 1878. several languages besides English,

including German, Polish, Italian, Yiddish, and French, in order to reach certain immigrant populations.

In every presidential election since 1980, the proportion of 7 eligible women who voted exceeded the proportion of eligible men who voted.

As of 2018, there were 81.3 million women registered to vote 8 in the United States. They make up 53% of the entire electorate.

Be sure to join us on August 26, at Noon as the DBA celebrates Women’s Equality Day with a special event featuring Nina Totenberg. Register at www.dallasbar.org.

Source: The American Bar Association Division for Public Education; www.americanbar. org/groups/public_education/ programs/19th-amendment-centennial/ fun-facts/

Wisconsin, Illinois, and Michigan were the first states to ratify the 9 19th Amendment, all on June 10, 1919, six days after it was approved

by Congress.

Mississippi was the last state to ratify the 19th Amendment 10 in 1984.

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D al l as Bar A ssoci ati on l Headnotes 21

Appellate/Antitrust & Trade Regulation

The Itsy-Bitsy Burden

BY JUSTICE CORY L. CARLYLE

You won at trial! But now you find yourself reading and re-reading the appellant’s brief, faulting you for things they say you did not do at trial, or if you did, did not do them right, and asserting some seemingly brand new faults the appellant found a way to raise. What to do to keep your verdict?

There is a line of cases that says an appellee—in certain situations—has waived arguments it made at trial when it fails to re-raise them in its appellate brief.

There is another line of cases that says an appellee does not even have to file a brief to prevail. The latter is likely the better reasoned course, but diving into this odd little morass of appellate procedure is beyond the scope of this brief article.

Today, I want to talk about what burden an appellee has in the intermediate appellate court and how to navigate it.

Generally, appellants face solid trial records from our talented trial bench that present real challenges. For that reason, appellants commonly raise direct challenges to the trial court proceedings in their briefs. These types of briefs take on the trial court’s reasoning or findings using its framework and ask us to come out the other way. This approach can be successful, and it may be the appellant’s only option.

But there are other ways appellants attack trial results. One is the subtle “burden-shift”. Another is the straw man.

They are flavors of the same concept, which is how to win on appeal when things are stacked against you. We see others, but these top the very informal list I have compiled. I am frequently impressed

by the way thoughtful advocates execute appellants’ briefs using these concepts.

And let me not go another word without saying: appellants prevail on appeal at a relatively stable rate and this will almost certainly continue. We appellate courts exist for a reason, after all!

I will present a concrete example from an appellant’s reply brief: “Appellees do not dispute the absence of evidence to support X. That lack of proof requires a new trial.” The initial response may be: it certainly would have been helpful if appellee had addressed X in its briefing.

But a closer look may reveal something altogether different: what appellant is calling X, appellee discussed as Y, and certainly addressed how much Y the jury heard. Appellant and appellee are talking past one another in that way stubborn advocates can, and if appellee is correct that its Y, appellant’s X, came up at trial in a way the trial court or jury could properly credit, then appellant is dead in the water. In a different case, appellant’s argument would be the basis for an easy reversal, but here, it is a red herring.

While the appellee has no specific burden, in this case, appellee ought to obviously, purposefully redefine the X in terms of Y. The appellee finds the best chance of prevailing by accepting the appellant’s challenge, confronting the way appellant has reframed the issues, and by rearticulating and un-reframing appellant’s reasons for the trial-level result. When appellee chooses only to respond to the appellant’s issues, on appellant’s terms, appellee may find peril, but not because appellee failed to meet some burden. It is this situation that raises the question on an appellee’s burden in briefing.

There are certain phrases that jump out, typically from the appellant’s reply brief, that suggest the appellant may be attempting to pin appellee down for things appellee has no real burden to do. These phrases will often center on an appellee’s failure to address a certain argument or failure to restate some basis for its triallevel success. Sometimes, the appellant will attempt to say appellee has conceded an argument either by not responding in a way appellant found satisfactory or by not re-raising the trial level argument.

These phrases spark my interest. Though potentially problematic—or even fatal— to appellee apart from appellee’s failure to talk about them in the brief, they may also be appellant’s attempt to grasp victory from the jaws of defeat. These types

of phrases should jump off the page for an appellee.

It is vanishingly rare that an appellee has “conceded” something by omission in its brief. The Texas Supreme Court has recently reemphasized its preference for merits adjudications over procedural defaults in the courts of appeals, and the view of briefing I discuss here falls in line with that emphasis. Appellee: address appellant’s arguments; bring it back to why you won. But on the off chance you miss something, remember: it is awful tough to climb up a waterspout in the rain.

Happy briefing!

HN Justice Cory L. Carlyle serves on the Fifth District Court of Appeals at Dallas and thanks attorneys Rachel Campbell and Bryan Bond for their excellent work in chambers.

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THE EFFECTS OF ‘CRISIS FATIGUE’ ON ATTORNEYS

Kelly Rentzel and Dr. Jana Rentzel www.dallasbar.org

22 H e a d n o t e s l D a l l a s B a r A s s o ciation

A ugust 2020

In The News KUDOS

Katherine A. Kinser, of Kinser & Bates, LLP, has been named as one of the 100 National Diplomates of the American College of Family Trial Lawyers.

Chris Schwegmann, of Lynn Pinker Hurst & Schwegmann, has been elevated to named partner.

Quentin Brogdon, of Crain Brogdon Rogers, LLP, was invited to become a Fellow of The International Society of Barristers.

Monica Latin, of Carrington, Coleman, Sloman & Blumenthal, has been named Managing Partner.

Meyling Ly-Ortiz, of Toyota Motor N. America, Inc., was selected by The Association of Corporate Counsel’s Top 10 30-Somethings in 2020.

Frank Carroll, of The Law Offices of Wm.

Frank Carroll, PLLC., has been reelected as the Chairman of the Board of the Texas Board of Legal Specialization for 20202021. He has also been honored as the recipient of the Distinguished Counselor Award for 2020 presented by the Antitrust and Business Litigation Section of the State Bar of Texas.

surer, Vice-President of Finance and member of the Executive Committee of the Richardson Symphony Orchestra.

Harriet Miers, of Locke Lord LLP, received the Louise Raggio Women’s Legal Advocate award from Legal Aid of Northwest Texas at the 20th Annual Women’s Advocacy Award virtual event.

Britney E. Harrison, of GoransonBain Ausley, has been elected President of the Texas Young Lawyers Association (TYLA) for 2020-2021.

Shonn Brown, of Kimberly-Clark Corporation, received the Business Leadership Award from Legal Aid of Northwest Texas at the 20th Annual Women’s Advocacy Award virtual event.

Neil J. Orleans, of Ross & Smith, P.C., has been appointed Chair of the NorthPark Presbyterian Church Investment Committee. He also was reelected Trea-

THURSDAY, AUGUST 6, NOON, ZOOM

AND STILL THEY ROSE: EARLY AFRICAN AMERICAN LAWYERS IN DALLAS AND THE LONE STAR STATE John Browning and Hon. Carolyn Wright MCLE 1.00 www.dallasbar.org

DBA Bench Bar Conference IS GOING VIRTUAL! Thursday, SEPTEMBER 24th | 10 AM - 3 PM Friday, SEPTEMBER 25th | 10 AM - 3 PM The 2020 DBA Bench Bar Conference is moving online.

Join us for 5.5 hours of engaging CLE and the presentation of the Trial Lawyer of the Year Award to Windle Turley.

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Paul Stafford has been elected ChairElect of the State Bar of Texas AfricanAmerican Lawyers Section for 20202021.

Paul Genender, of Weil, Gotshal & Manges LLP, has been selected by the Dallas Women Lawyers Association (DWLA) to receive its James E. Coleman Jr. Her Champion Award in recognition of his support and dedication to advancing women in the legal profession.

ON THE MOVE

Jared W. Hays joined Bell Nunnally & Martin LLP as Partner.

Ann Massey Badmus launched Badmus & Associates located at 11325 Pegasus Street, Suite E-265, Dallas, Texas 75238.

Anna Lee Alford and David L. Pratt joined Bradley Arant Boult Cummings LLP as Associate and Partner, respectively.

Sarah R. East and Brenda A. HardWilson joined Higier Allen & Lautin, P.C. as Associates.

Ross Robinson, David Lovell, Robert McCormick and David Odom joined Shackelford, Bowen, McKinley & Norton, LLP as Partners. Stan Moore joined the firm as Of Counsel.

News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org

Kilgore Law Firm Kicks Off 2021 EAJ Campaign CONTINUED FROM PAGE 1

Rosewood Property Company, added: “I am honored to serve as one of the Co-Chairs of the EAJ Campaign because the work of the Campaign directly impacts our community; without the Campaign, thousands of people who cannot afford an attorney would not be able to have their interests represented. At a time when so many have found themselves out of work or with reduced pay, the services that the Campaign supports are even more crucial and needed. This year we will have some new and fun ways for you to support the Campaign, including an online event. Stay tuned for details!”

In today’s environment, this year’s Campaign is more important than ever, as noted by Ms. Ly-Ortiz, Managing Counsel-Labor & Employment at Toyota Motor North America: “On a societal level, especially against the backdrop of systemic racism, supporting equal access to justice and providing pro bono legal services to those who are underserved and underprivileged is just one tangible way to address the inequity in our country. On a personal level, providing and funding pro bono services is an invaluable way to see, hear and acknowledge those in our community who are often unseen,

unheard and forgotten. Whether your passion is to better our community on a micro or macro level, the EAJ Campaign is a direct way to make that impact.”

The EAJ Co-Chairs will be ably assisted by Honorary Chair Jeffrey Melucci, Senior Vice President and General Counsel of Kimberly-Clark Corporation, and Vice Chairs Stewart Clancy of Capital One; Olesja Cormney of Toyota; and Amy M. Stewart of Stewart Law Group.

The commitment of Dallas attorneys and the DBA to the Equal Access to Justice Campaign is impressive.

Since 1997, the DBA and Legal Aid have joined forces to raise money for the program, with Dallas lawyers donating almost $15 million.

DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallas volunteerattorneyprogram.org.

HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.

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D al l as Bar A ssoci ati on l Headnotes 23

Appellate Law/Antitrust & Trade Regulation

Why You Need an Antitrust Compliance Program

BY THOMAS D. YORK

While corporate antitrust compliance programs may not be the most exciting duties of in-house counsel, recent U.S. Department of Justice (DOJ) guidance reinforces why they are a must-have to potentially prevent criminal antitrust violations—and reduce criminal liability for when they occur.

DOJ recently announced significant revisions to its policy regarding treatment of corporate compliance programs in antitrust cases. For the first time, DOJ now allows government prosecutors to take a company’s preexisting compliance program into account when making sentencing or charging decisions—so long as the program is effective.

This new policy represents an aboutface for DOJ. Historically, DOJ believed that if a cartel violation occurred, a company’s compliance program was, by definition, ineffective. DOJ refused to offer any credit for the program when considering whether to prosecute the company. Instead, only the first company to report the antitrust violation was awarded leniency.

Now, DOJ must consider a company’s antitrust compliance program in making charging decisions and, in some cases, may offer deferred prosecution agreements to companies that fail to qualify for

leniency but that have enacted effective antitrust compliance measures. Moreover, DOJ may award credit to firms with effective programs at the sentencing stage of an investigation.

An antitrust compliance program can save a company from the devastating consequences of antitrust violations by preventing or quickly detecting anticompetitive conduct. Antitrust violations can result in expensive litigation, millions of dollars in damages and fines, reputational harm, and potentially individual criminal liability—all before any follow-on civil litigation. Implementing a compliance program can limit or prevent these costs by fostering a culture of compliance and encouraging prompt reporting of potential violations.

An effective antitrust compliance program should be tailor-made to fit the specific risk profile of the company. A “paper program” won’t cut it. While every policy is different, the key components of a program include: • Code of Conduct. A company should have an easy-to-read, easy-to-find code of conduct that describes the company’s commitment to antitrust compliance.

Senior management should reinforce this code through a culture of compliance.

• Tailored Risk Assessment. An anti-

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trust compliance program should be designed to detect the particular types of misconduct most likely to occur within the specific company and industry. There is no one-size-fits-all compliance program.

• Dedicated Compliance Officer. A company should task a chief compliance officer or another executive with overseeing compliance efforts. The compliance officer should have sufficient autonomy, authority, and seniority to command respect, and given sufficient resources required to run the program effectively.

• Training and Certification. Company leadership and key employees should periodically complete antitrust training programs, which should include tests or other mechanisms to ensure employees understand the material and certify their compliance with antitrust laws.

• Enforcement. Antitrust compliance should be continuously monitored

and audited. If violations were identified, remedial actions should be taken to strengthen the program.

• Reporting Mechanisms. Employees should be given specific instructions on how to report potentially unlawful conduct. This should include options to submit their concerns anonymously and without fear of retaliation.

In sum, DOJ’s new policy is a welcome change that incentivizes antitrust compliance and rewards effective programs. But in-house counsel must be proactive and vigilant in order to take full advantage of the policy. To the extent your antitrust compliance program has been on autopilot, now is the time to revisit the program with DOJ’s guidance in mind.

HN Thomas D. York is an associate at Jones Day. He can be reached at tdyork@jonesday.com. Mitchell Ralph, a summer associate at Jones Day, assisted in the preparation of this article.

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