Dallas Bar Association
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July 2019 Volume 44 Number 7
Focus
Focus | ADR/Collaborative Law
ADR/Collaborative Law
Leon Carter Honored as 2019 Internal ADR Processes for Trial Lawyer of the Year Organizational Disputes BY ANDREW M. JONES
E. Leon Carter has been named the Dallas Bar Association’s 2019 Trial Lawyer of the Year. The award is fitting for Carter, who is well known in Dallas both for his effective work in the courtroom and his generous support of the community and the legal profession. Carter has been a fixture of the Dallas trial bar for some three decades. After cutting his teeth in law as an assistant attorney general, and later an assistant district attorney, Carter joined Jackson Walker, where he rose to partner in E. Leon Carter the litigation section. He ultimately founded his own firm, merged with another, and later founded his current firm, now known as Carter Arnett. He has tried more than 100 jury cases at the state and federal level. He handles plaintiff and defense matters in exceptionally diverse practice areas ranging from commercial litigation to product liability, to First Amendment, antitrust and employment. There are few areas of litigation that he has not handled. Carter’s client base has run the gamut to a degree far beyond that of most attorneys, from AT&T, to Exxon Mobil, to the City of Dallas, to Parkland Hospital. Carter is a member of the International Society of Barristers, the American College of Trial Lawyers, and the Litigation Counsel of America. He has served as an adjunct professor at SMU’s Dedman School of Law and The University of Texas at Arlington. Among many other honors, Carter has been named a Thomson Reuters Texas Super Lawyer, included in Levine Leichtman Capital Partners’ Best Lawyers in America, and named as one of Lawdragon’s 500 Leading Lawyers in America. Leon and his wife Debra have been consistent and extraordinarily generous supporters of the Dallas community. The Carters are long-time supporters of the DVAP Equal Access
to Justice Campaign, with donations well into the six figures. Carter calls his family’s support of the EAJ Campaign to be part of a spiritual mandate to help the less fortunate. Carter is also a Life Fellow of the Dallas Bar Foundation. His father passed away when Leon was just three years old. One of five children, he was raised in the East Texas town of Carthage, a town of 6,000 people, where he proudly credits his mother and extended family for helping to raise him and shape him into a good student under modest circumstances. After high school, Carter went on to graduate from East Texas Baptist College in Marshall, where he played basketball and earned a degree in history and pre-law. After a brief high school teaching career, he commenced studies at Texas Southern University’s Thurgood Marshall School of Law, where he graduated in 1986. Carter’s community service also includes volunteering on the boards of Vickery Meadow Learning Center, Camp John Marc, the Martin Luther King Center, the Volunteer Center of Dallas, and Big Brothers, Big Sisters. Carter has been recognized for his community service in a number of ways, including being honored as recipient of the DBA’s 2011 Martin Luther King, Jr. Justice Award. Carter has also served the Dallas Bar Association in numerous capacities, including time as DBA Director and serving on committees pertaining to the judiciary and unauthorized practice of law, to name a few. His service extends to the state level as well, through his service with the Litigation Council of the State Bar of Texas, and as a State Bar director for District 6. Congratulations to Leon Carter, this year’s Dallas Bar Association Trial Lawyer of the Year. HN Andrew M. Jones is co-chair of the Publications Committee and serves as Senior Director, Legal Counsel to Epsilon Data Management Services, LLP. He can be reached at andrew.jones@epsilon.com.
BY SANDY LAURO
“Grievances cannot be redressed unless they are known, and they cannot be known but through complaints and petitions . . .” – Benjamin Franklin When people work together, conflict is inevitable. Conflict is viewed negatively, but conflict can ultimately be a positive force if it is managed well, as it can help identify and resolve internal conflict that is causing harm to the organization and its people. While many executives and lawyers think of external mediators or arbitrators as useful in dispute resolution, internal processes can be even more effective as they can be utilized earlier on in the conflict and may also help the organization identify and find solutions to problems before litigation becomes necessary. This article will provide an overview of several internal dispute resolution processes that both for-profit and non-profit organizations may consider in addressing internal conflicts and disputes.
Internal Investigations
An internal investigation is a process whereby an internal employee (e.g., an HR professional) or an external party (e.g., a lawyer or consultant) impartially investigates certain employee concerns, such as concerns of harassment, discrimination or other alleged violations of policy and/or law. If a policy or legal violation is found, the company can take corrective actions such as discipline, training, etc. However, even if the investigator concludes that no policy or law violation is substantiated, the fact that a concern was raised usually indicates that there are perceptions of unfairness, other personnel conflicts or leadership styles that may be causing the concerns. This information can be used to create solutions designed to mitigate against future conflicts or concerns.
Ombuds Programs
Generally, an ombuds person is a designated internal or external member of the organization whose primary purpose is to look into internal complaints about alleged acts or omissions of organizational actors and larger systemic problems. The ombuds person’s role is to listen, offer options to the complainant as to how to process or resolve the concern, or design paths to facilitate resolutions. Additionally, an ombuds person can also be used to gather data and investigate individual concerns or larger systemic issues. The concept of an ombuds person is common in many cultures and religions where designated elders help resolve disputes within the community. Universities and other organizations, such as
Inside 6 Expanding the Collaborative Process Beyond Family Law 14 Limiting Discovery Before Arbitration 18 Making Effective Demands and Offers at Mediation 20 Bar None XXXIV: Lawquaman
the United Nations, have successfully utilized identified ombuds persons to assist their employees with the informal resolution of concerns or conflict.
Internal Grievance Procedures/ Peer Review Panels
An internal grievance process is an internal organized and directed process for employees to submit concerns and complaints for internal determination. Often, these grievance processes include a peer review panel or group of employees who are trained in the process of hearing their peers’ concerns and making decisions relating to the concerns. For example, the panel may have authority to hear employee disputes relating to compensation or performance reviews and to render final decisions that affirm, reverse or modify certain types of management decisions. Employees may trust the process given that they are submitting their dispute to peers who may better understand their concerns as well as the company’s culture, policies and operations.
Facilitation
Individuals with training in conflict resolution often act as external facilitators to help an organization and its employees deal with difficult issues causing conflict within a group and to help the internal stakeholders find a shared path to resolution of problems or conflict. While each facilitation program or session is unique, generally it entails the use of an external conflict resolution facilitator. The facilitator gathers information about the problem or conflict from the key players and then works with all the key players in one or more group sessions to talk through the issues, identify the problems and find shared (and often mutually agreed upon) solutions as a group. Because the employees involved in the conflict are also involved in sharing their concerns and finding the solutions forward, the facilitative process can help build trust and commitment to the solution forward. As noted above, there are many different internal processes that organizations can use to effectively manage and resolve conflict. Finding the right process depends on the organization’s unique culture and needs, leadership commitment and organizational resources. In the end, dispute resolution is not an easy task for any organization, but it is often critical for running an effective organization with a workforce that is engaged and committed. HN Sandy Lauro is an attorney at Dede Church & Associates, LLC.. She can be reached at slauro@dedechurch.com.
The 2019 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.
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Calendar July Events JULY 12-NORTH DALLAS** Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. How Lawyers Can Identify and Remedying Ethical Lapses of Their Own and Others,” Michael Maslanka. (Ethics 1.00)*
FRIDAY CLINICS
“Artificial Intelligence and Legal Ethics,” Chris Rourk. (Ethics 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@ dallasbar.org.
Senior Lawyers Committee
TUESDAY, JULY 16 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section Topic Not Yet Available
Community Involvement Committee
Entertainment Committee
Ethics of Fee Agreements and Billing,” Jeanne M. Huey. (Ethics 1.00)*
DBF Board of Directors Meeting
Bench Bar Conference Committee
Dallas Asian American Bar Association
WEDNESDAY, JULY 17
WEDNESDAY, JULY 3
DAYL Lunch & Learn CLE
DAYL Judiciary Committee
THURSDAY, JULY 4
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@dallasbar.org.
FRIDAY, JULY 5
5:30 p.m. Bankruptcy & Commercial Law Section “Successful Negotiation without Significant Leverage,” Leo Cardenas and Jeff Prostok. (MCLE 1.00)*
JULY 19-BELO Noon
“What’s Happening at the Capitol? The 86th Legislature and the Practice of Law in Texas,” Nathan Johnson. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
JULY 26-OAK CLIFF Noon
“Free & Affordable Legal Research,” Stewart Caton and Baily Eagin. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org.
MONDAY, JULY 1 No DBA Events Scheduled
TUESDAY, JULY 2 Noon
Morris Harrell Professionalism Committee
No DBA Events Scheduled
DBA offices closed in observance of Independence Day
No DBA Events Scheduled
THURSDAY, JULY 11
MONDAY, JULY 8
Noon
CLE Committee
Gibbs, and Amy M. Stewart, moderator. (MCLE 1.00)*
American Immigration Lawyers Association
DAYL Lawyers Promoting Diversity
WEDNESDAY, JULY 24 Noon
Entertainment, Art & Sports Law Section “Legal Issues with 501(c) Organizations in the Entertainment Industry,” Michael Clay, Carolyn Wills, and Eric Zukoski. (MCLE 1.00)*
Federal Judges Luncheon “Chief Judge Barbara M.G. Lynn will moderate a panel of judges, which includes: District Judge David C. Godbey, Magistrate Judge David L. Horan, Chief Bankruptcy Judge Barbara J. Houser, and Magistrate Judge Renée Harris Toliver. (MCLE 1.00)* Sponsored by the DBA Judiciary Committee and the Federal Bar Association
DVAP New Lawyer Luncheon. For more information, contact martinm@lanwt.org.
6:00 p.m. Dallas Hispanic Bar Association
Noon
Energy Law Section “Supreme Court of Texas Wrap Up,” Tom Phillips. (MCLE 1.00)* Health Law Section “Updates in HIPAA Compliance,” Jeff Drummond and Jamie Sorley. (MCLE 1.00, Ethics 0.50)*
Law in the Schools & Community Committee
Pro Bono Activities Committee
DAYL/DWLA Women’s Mentoring Circles
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@dallasbar.org
THURSDAY, JULY 25 Noon
Criminal Law Section “What Every Criminal Lawyer Needs to Know About Family Law,” Aimee Key and Lindsey Obenhaus. (MCLE 1.00)*
Environmental Law Section “Legislative Update from 2019 Texas Legislative Session,” Ana-Maria Ramos. (MCLE 1.00)*
Intellectual Property Law Section “Supreme Court Update on IP Cases,” Paul Reilly and James Williams. (MCLE 1.00)*
Noon
Alternative Dispute Resolution Section “Preparing Your Client for Mediation,” Barry Wernick. (MCLE 1.00, Ethics 0.50)*
Criminal Justice Committee
Publications Committee
Real Property Law Section “Maximizing Your Mediation,” Jay Zeleskey. (MCLE 1.00)*
Christian Lawyers Fellowship
Noon
Minority Participation Committee
DBA CSF Board of Directors Meeting
DBA/DAYL Moms in Law. Ziziki’s (on Forest & Preston). RSVP rocio@snellingsinjurylaw.com.
Christian Legal Society
DAYL CLE Committee
DAYL Animal Welfare Committee
DAYL Continuing the Conversation Program
J.L. Turner Legal Association CLE
FRIDAY, JULY 26
Peer Assistance Committee
FRIDAY, JULY 12
DAYL Membership Committee
TUESDAY, JULY 9
Noon
Noon
Immigration Law Section “Nonimmigrant Visa Alphabet Soup,” Garry Davis and Daniele Volfe. (MCLE 1.00)*
Courthouse/Library Committee
Legal Ethics Committee
DAYL Diverse Attorney Pipeline Program
6:00 p.m. DAYL Board of Directors Meeting
Trial Skills Section “Topic Not Yet Available,” Frank Branson. (MCLE 1.00)*
J.L. Turner Legal Association
WEDNESDAY, JULY 10 Noon
Family Law Section “Family Law Clients Hate Surprises: The
North Dallas Friday Clinic “Artificial Intelligence and Legal Ethics,” Chris Rourk. (Ethics 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.
MONDAY, JULY 15 Noon
Labor & Employment Law Section “The Varsity Blues Scandal and Beyond:
THURSDAY, JULY 18
3:30 p.m. DBA Board of Directors Meeting 6:00 p.m. DAYL Dinner and Dialogue
8:00 a.m. Clerks & Coordinators Seminar For more information, contact kzack@ dallasbar.org.
FRIDAY, JULY 19
Noon
Oak Cliff Clinic “Free & Affordable Legal Research,” Stewart Caton and Bailey Eagin. (MCLE 1.00)* Oak Cliff Chamber of Commerce, 1001 N Bishop Ave, Dallas. RSVP to yhinojos@dallasbar.org.
DBA/DAYL Moms in Law. Saint Ann’s (2550 Harry Hines Blvd.). RSVP rocio@ snellingsinjurylaw.com.
9:00 a.m. Christmas in July Donation Drop Off Noon
Friday Clinic-Belo “What’s Happening at the Capitol? The 86th Legislature and the Practice of Law in Texas,” Nathan Johnson. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org. DAYL Deal Boot Camp Committee
MONDAY, JULY 22 Noon
DVAP CLE “Over-Consumption Can Be a Good Thing! Why You Want to be Consumed With a Consumer Law Pro Bono Case and Everything You Need to Know About How To Do It,” Kendall Hayden. (MCLE 1.00)*
TUESDAY, JULY 23 Noon
Pioneering Women CLE “The Importance of Sponsoring Others in the Profession,” Linda Thomas, Carolyn Wright Sanders, Erleigh Wiley, Shelton
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.
MONDAY, JULY 29 No DBA Events Scheduled
TUESDAY, JULY 30 No DBA Events Scheduled
WEDNESDAY, JULY 31 Noon
DAYL Equal Access to Justice Committee
Municipal Justice Bar Association
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President’s Column
Headnotes
Celebrating Independence BY LAURA BENITEZ GEISLER
This month, as we celebrate July 4th with fireworks and parades (or maybe just a quiet day in the office), let us not forget the reason why we celebrate this day as a nation. In doing so, let us be reminded that the liberties we enjoy and celebrate on Independence Day should never be taken for granted. It is important we remind ourselves of this because when something we value is always available in a relatively dependable way, it is easy to underappreciate its value and/or assume it will always be there. That is—until it is lost or taken away.
Life, Liberty, and the Pursuit of Happiness
In declaring independence from Great Britain, the Continental Congress placed an intrinsic value on certain unalienable rights—life, liberty, and the pursuit of happiness. It also specifically identified a list of “injuries and usurpations” that impeded those unalienable rights under the tyrannical control of King George III. Among them was the suppression of a free and independent judicial system.
Protecting and Defending an Independent Judiciary
Although the framework for an independent judiciary was later consecrated in Article III of the Constitution, it remains vulnerable to attack and requires our constant and vigilant defense. And while attacks on the judiciary are not new, we live in a time where the attacks on our judiciary are coming from multiple directions in multiple ways. These attacks include overtly hostile and direct efforts from our own political leaders who demonstrate a blatant disregard and disrespect for the rule of law when it does not suit their political agenda. Leaders who undermine the public’s confidence in the justice system with personal attacks on judges and by calling into question the legitimacy of the judiciary as a separate and independent branch of government. The judiciary also faces assault in state courts with efforts by state legislatures who seek to limit the role and independence of the judiciary in various ways. According to the Brennan Center for Justice, as of March 2019, there were approximately 42 different bills introduced in 22 different states aimed at limiting the power and independence of state courts through legislation. Among these efforts were changes to judicial selection (for partisan benefit), reducing court jurisdiction, and limiting court autonomy and financial resources. Our judiciary is also vulnerable to attacks from foreign powers. The Center for Strategic & International Studies has noted
increasing attacks on our judiciary and justice system by Russia (and presumably other foreign powers) through the use of social media. With efforts designed to manipulate the American public’s lack of familiarity with due process and the legal system, foreign governments seek to spread disinformation that undermine American faith in the rule of law. The independence of our judiciary is also under attack when lawyers stand by quietly and allow these attacks to continue either through our own ignorance of the ways in which it is under attack, or by failing to speak up when we see it happening. For that reason, this year the DBA is presenting a series of programs specifically geared toward bringing light to these issues. The first program held in February included a presentation and discussion on the history and challenges to an independent judiciary. In late June, DBA hosted a panel discussion on the future of judicial selection in Texas. Led by Judge Eric Moyé, the panel featured former Texas Supreme Court Justice Tom Phillips, State Representatives Julie Johnson and Jeff Leach, Fifth Court of Appeals Chief Justice Robert Burns and Grace Weatherly from the Dallas Chapter of ABOTA. The remaining two programs in this series (scheduled for September and November) will focus on additional issues confronting an independent judiciary. Many thanks go to the Honorable Martin Hoffman for his instrumental role is planning this important program series. Many of you may recall the story told in both book and movie about the slave ship Amistad. The ship was intercepted off of the east coast of the United States in 1839. The cargo of the ship—Africans taken for slave trade—killed the ship’s crew and took it over. The case was politically charged because of the slave discussion in our own country leading up to the civil war. The matter landed in court where the question was whether the Africans were property, or if they were people kidnapped and entitled to defend themselves from the Spanish. Despite President Van Buren’s effort to influence the outcome through the courts, along with pressure from the Spanish monarchy, the federal government, and other wealthy interests, the court rebuffed the pressure and ruled in favor of the Africans. The case ended up in the Supreme Court where John Quincy Adams, (representing the Africans) characterizes the Queen of Spain’s claims to the ship and “property”: “[A]nd here is the fine point of it: What her majesty wants is a court that behaves just like her courts, the courts this 11-yearold child plays with in her magical kingdom called Spain, a court that will do what it is told, a court that can be toyed with like a doll, a court—as it happens—of which our own President, Martin Van Buren, would be most proud.” An independent judiciary is essential to true freedom. I will never forget it or take it for granted, nor should you. HN
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: Laura Benitez Geisler President-Elect: Robert L. Tobey First Vice President: Aaron Z. Tobin Second Vice President: Karen D. McCloud Secretary-Treasurer: Ashlei Gradney Immediate Past President: Michael K. Hurst Directors: Vicki D. Blanton, Jonathan Childers, Chalon Clark, Sakina Rasheed Foster, Charles Gearing (President, Dallas Association of Young Lawyers), Rocio García Espinoza, Hon. Martin Hoffman, Krisi Kastl, Dan Kelly, Bill Mateja, Hon. Maricela Moore, Audrey Moorehead, Kathryne Morris, Cheryl Camin Murray (Vice Chair), Erin Nowell (President, J.L. Turner Legal Association), Javier Perez (President, Dallas Hispanic Bar Association), Sarah Rogers (President, Dallas Women Lawyers Association), Mary Scott, Jason Shyung (President, Dallas Asian American Bar Associations) and Amy M. Stewart Advisory Directors: Stephanie Gause Culpepper (PresidentElect, Dallas Women Lawyers Association), Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Justin Gobert (President-Elect, Dallas Association of Young Lawyers), Andrew Spaniol (President-Elect, Dallas Asian American Bar Association), and Koieles Spurlock (President-Elect, J.L. Turner Legal Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, Rebekah Brooker, Rob Crain, Michael K. Hurst, and David Kent HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Andy Jones and Carl Roberts Vice-Chairs: James Deets and Beth Johnson 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, Elisaveta (Leiza) Dolghih, 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 Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Mejia, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson 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 Community Engagement Coordinator: Mariséla Martin Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Carmen Perales, Alicia Perkins, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2019. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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ADR/Collaborative Law
Expanding the Collaborative Process Beyond Family Law BY LAWRENCE R. MAXWELL, JR.
The collaborative dispute resolution process is not just for family law matters. After seeing the benefits that the collaborative process brings to resolving family law matters quickly and economically, creative lawyers in Texas and around the country are using the collaborative approach to resolve disputes arising in many areas of civil law. The process is ideally suited for resolving disputes where maintaining relationships is important. This article will show the advantages and successful use of the collaborative process for resolving a dispute arising after an adverse medical event, in a probate matter, in employment situations, construction disputes, and in elder law and guardianship situations. Adverse medical events: Several years ago, the brother of a prominent actor died in the emergency room of a hospital in Rhode Island. An acrimonious medical malpractice suit was in the third week of trial and the hospital’s CEO intervened. She was distraught
about the shift of focus among the care providers at the hospital from concentrating on healing patients to defending their hospital against malpractice allegations. The hospital’s CEO felt that the health care providers had lost their understanding and empathy and she decided to take a different approach to resolving the bitter, unproductive situation. Ignoring the hospital’s attorneys, she met for dinner with the family of the patient who had died, acknowledged the medical error and apologized. The meeting resulted in a confidential financial settlement and the hospital committed to create new approaches to hospital and emergency room care. While this is not technically a collaborative case, it does illustrate the benefits of transparency, and honesty in resolving disputes. Probate, trust and estate matters: A prominent Dallas probate lawyer finds the collaborative approach can be appropriate for resolving complex probate, trust and estate disputes. He recently used the
Dallas Bar Association's Spanish for Lawyers Fall 2019 - 10 Week Course August 20 - October 22, 2019 High Beginner/Low Intermediate Level - Tuesdays Intermediate/Advanced Level - Wednesdays
All classes held at Belo Mansion 6:00 - 7:30pm | Course Cost: $180 Contact Grecia Alfaro at galfaro@dallasbar.org or 214-220-7447
collaborative process to resolve a dispute involving four siblings who began fighting after the deaths of their parents. The parents’ wills left their estates to the children equally and named a son as executor. Lack of communication, which is not an issue in face to face meetings in the collaborative process, was the problem among the siblings. All were interested in savings of time and money and wanted to heal the strained relationship in the family. Within 90 days all issues were satisfactorily resolved in the collaborative process. Employment disputes: The speed of the process, lower cost, voluntary discovery, confidentiality, and the ability to create solutions tailored to the needs and interests of the parties make the collaborative process particularly useful in resolving employment disputes. A Massachusetts colleague believes the process offers options for resolution not available in litigation or arbitration. In discrimination and sexual harassment matters the employee is often still working for the company, and there is a need to preserve and improve relationships while constructively and creatively addressing the problem. By incorporating preventive training, counseling, diversity training, reassigning employees, the collaborative process can transform a toxic workplace into one where employees feel safe and take pride in their jobs. Business and construction disputes: Transparency and cooperation, which are the cornerstone of the collaborative process, make the process well suited for resolving business and construction disputes where repeat business and continuing relations are important. In construction projects nationwide, disputes frequently arise over delayed payments and construction defects. Review-
ing contracts, invoices, receipts, plans, work records, and knowledge of verbal exchanges are important. With the voluntary production of relevant documents and total transparency in face to face meetings, the parties are not mired in discovery fights over documents or involved in “he saidshe said” arguments as in litigation. Elder Law and Guardianship Matters: Elder law addresses intensely personal rights and issues where family members cannot agree on what help is needed. Disputes can be painful and damage long-term family relationships. A recent case in the state of Washington illustrates how difficult issues can be resolved using the collaborative process. In the Washington case, friends of an incapacitated person received reports that the guardian was late with payments and bouncing checks. Financial exploitation was suspected. The guardian and the family agreed to a collaborative solution. The problem was not malfeasance of the guardian, rather a lack of funds to pay court ordered bills. The parties reduced costs to get the guardianship estate on a solid financial footing. These stories illustrate a special advantage of the collaborative process. It can provide unusual relief not possible in an adversarial proceeding. A judge or arbitrator cannot order a party to make an apology, or order medical providers, businesses or service providers to change their procedures. These remedies are sometimes more important than a monetary judgment and they often play a significant role in settling disputes collaboratively. HN Lawrence R. Maxwell, Jr. is a collaborative lawyer, mediator and arbitrator and was a co-founder of the DBA ADR and Collaborative Law Sections. He can be reached at lmaxwell@adr-attorney.com.
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2019 DBA 100 CLUB - WE WANT YOU! What is the DBA 100 Club? The DBA 100 Club is a distinguished membership recognition category that consists of Firms, Law Schools, Organizations and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition is FREE and given to the 2019 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. 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. Do you see your name on the list? If not, you need to GET ON THE LIST! To become a 2019 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify the list with our member records and, if eligible, we will add your firm to the 2019 DBA 100 Club! If we receive your qualifying list by July 5th, your firm will be included on the August DBA 100 Club recognition list in Headnotes.
Send in your list TODAY! DBA 100 Club Members as of June 12, 2019 Law Firms with 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Adair, Morris & Osborn, P.C. Adam L. Seidel, P.C. Addison Law Firm P.C. Aldous \ Walker Alexander Dubose Jefferson & Townsend LLP Alexandra Geczi PLLC Altaffer & Chen PLLC Anderson & Brocious P.C. Ashcraft Law Firm Atkins, O’Toole & Briner, L.L.C. Atwood Gameros LLP Barbee & Gehrt, L.L.P. Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Bocell Ridley, P.C. Broden & Mickelsen Campbell & Associates Law Firm, P.C. Capshaw & Associates Carlock & Gormley Chen Dotson, PLLC Christiansen Davis LLC Clark Law Firm Clark, Malouf & White, LLC Davenport & Epstein, P.C. Davis Stephenson, PLLC Duke Seth, PLLC Fisher & Welch, P.C. Francis & Totusek, L.L.P. Fuller Mediations FurgesonMalouf Law PLLC Gauntt Koen Binney & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Grau Law Group, PLLC Grogan & Brawner P.C. Hahn Law Firm, P.C. Hamada Smith, PLLC Hance Law Group Hayward & Associates PLLC Henley & Henley, P.C. Herrera & Herrera Hitchcock Evert LLP Hollingsworth Walker Holmes Firm PC Horton & Archibald, P.C. Hunt Huey PLLC
Hunter & Kalinke Jameson & Powers, P.C. Jenkins & Watkins, P.C. Johnston Tobey Baruch, P.C. Jordan Monk Reber, PC Kabani & Kabani, PLLC Kastl Law, P.C. Kellett & Bartholow PLLC Kinser & Bates, L.L.P. Koning Rubarts LLP Langley LLP Law Office of Andrew & Mark Cohn Law Office of Jodi McShan, PLLC 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 Letteer & Mock, P.C. Lidji Dorey & Hooper Lillard Wise Szygenda PLLC Little Pedersen Fankhauser LLP Madson Castello, PLLC Mahomes Bolden PC Manning & Kass Marshall & Kellow, LLP Martin Powers & Counsel, PLLC McDowell Hetherington LLP Miller Mentzer Walker, P.C. Mincey-Carter, PC Norris & Weber, PLLC Okon Hannagan, PLLC Orenstein Law Group, PC RegitzMauck PLLC Riney Packard PLLC Ritter Spencer PLLC Russell & Wright, PLLC Ryan Law Partners LLP Sawicki Law Schubert & Evans, P.C. Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Simon | Paschal PLLC Skierski Jain PLLC Smith, Stern, Friedman & Nelms, P.C. Spector & Johnson, PLLC Starr Law Firm, P.C. Starr Law Firm, P.C. Stromberg Stock, PLLC Taherzadeh, PLLC The Bhatti Law Firm, PLLC The DeLoney Law Group, PLLC
The Law Office of Ray R. Singh The Perrin Law Firm The Vermillion Law Firm, LLC Travis Law Group, P.C. Tremain Artaza PLLC Voge Rohe PLLC Webb Family Law Firm, P.C. Westerburg & Thornton, P.C. Whalen Law Office Wisener Nunnally Roth LLP Withers & Withers, P.C. Woolley <> Wilson, LLP. Yarbrough & Elliott, P.C. Law Firms with 6 or More Attorneys Baker Botts, L.L.P. Bell Nunnally & Martin LLP Boyle & Lowry, L.L.P. Bradley Arant Boult Cummings, LLP Bragalone Conroy PC Brousseau Naftis & Massingill Brown Fox PLLC Buether Joe & Carpenter, LLC Burford & Ryburn, L.L.P. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos Hendricks Poirot, P.C. Cobb Martinez Woodward PLLC Cooper & Scully, P.C. Cowles & Thompson, P.C. Crain Lewis Brogdon, LLP Crawford, Wishnew & Lang PLLC Cutler-Smith, P.C. Durham, Pittard & Spalding, LLP Estes Thorne & Carr PLLC Fee, Smith, Sharp & Vitullo, L.L.P. Figari & Davenport, L.L.P Godwin Bowman PC Goranson Bain Ausley, PLLC Griffith Davison, P.C. Guida, Slavich & Flores, P.C. Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Husch Blackwell LLP Jordan Flournoy LLP K&L Gates LLP Kessler Collins, P.C. KoonsFuller Lan Smith Sosolik, PLLC Linebarger Goggan Blair & Sampson, LLP Malouf Nakos Jackson & Swinson, P.C. Martin, Disiere, Jefferson & Wisdom, LLP
McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Morgan, Lewis & Bockius LLP Munsch Hardt Kopf & Harr, P.C. Orsinger, Nelson, Downing & Anderson L.L.P. Parsons McEntire McCleary PLLC Passman & Jones, P.C. Peckar & Abramson, P.C. Ryan Law, LLP Stacy Conder Allen LLP Staubus & Randall, L.L.P. Steckler Gresham Cochran LLP Steed Dunnill Reynolds Bailey Stephenson LLP The Hartnett Law Firm Thiebaud Remington Thornton Bailey LLP Thomas, Feldman & Wilshusen, L.L.P. Tollefson Bradley Mitchell & Melendi, LLP Touchstone Bernays Verner Brumley Mueller Parker, P.C. Winstead PC Corporate Legal Departments Borden Dairy Company Buckner International Capital Senior Living, Inc. Compatriot Capitol Inc. Dunhill Partners, Inc. El Rancho Inc. Gaedeke Group HighGround Advisors KidKraft, Inc. LALA U.S., Inc. North Texas Tollway Authority Tenaska, Inc. Government Agencies, Law Schools & Organizations Dallas Baptist University Dallas County Community College District Dallas County Probate Courts DII Industries, LLC Asbestos PI Trust Mosaic Family Services Inc. UNT Dallas College of Law Special Recognition Student Members of UNT Dallas College of Law
Jul y 2 0 1 9
D al l as Bar A ssoci ati on l Headnotes 9
We’re ready to collaborate and prepared to litigate.
Left to right: Lené Alley DeRudder, Lindy Borchardt, Ashley E. Jones, Dawn Ryan Budner, Carla M. Calabrese, Lauren S. Harris, Natalia Duque
Bullying and grandstanding are destructive tactics in the family law arena. At Calabrese Budner, we reach the highest ends for our clients by refusing to lower ourselves. Ready to collaborate and prepared to litigate, Calabrese Budner views collaborative divorce as the gold
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For more information or to schedule a consultation, contact Calabrese Budner today at 214.939.3000 or at calabresebudner.com. Join Carla Calabrese and Dawn Budner for Dallas Divorce Talk—the podcast on all things divorce and family. Available on iTunes and at calabresebudner.com.
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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
Focus
Jul y 2019
ADR/Collaborative Law
Avoiding Evident Partiality in Arbitration BY ANGELA ZAMBRANO AND NATALI WYSON
One advantage of binding arbitration is that decisions are subject to only limited grounds for judicial review and thus a greater degree of finality. However, in recent years, Texas courts have demonstrated that they will not shy away from vacating arbitration awards for “evident partiality” if attorneys and arbitrators do not take the requisite care to disclose all “facts which might, to an objective observer, create a reasonable impression of the arbitrator’s partiality.” Although arbitrators are not required to disclose relationships or connections that are trivial, arbitrators should err in favor of disclosure. Likewise, counsel should carefully scrutinize for accuracy and completeness each arbitrator’s disclosures related to them, their firms, and their clients to protect favorable awards and avoid vacatur
after the time and expense of arbitration. To that end, this article discusses some of the facts and connections that Texas attorneys and arbitrators should consider when making disclosures in arbitration. In 2011, the Texas legal community received a strong reminder of the costs of arbitration disclosure failures when a Texas Appeals Court famously vacated a $22 million arbitration award for “evident partiality” due to an undisclosed social relationship between the arbitrator and a party’s attorney. Karlseng v. Cooke, 346 S.W.3d 85 (Tex. App.—Dallas 2011, no pet.). The Karlseng opinion drew widespread attention not just for its result but for the court’s in-depth and comprehensive examination of the arbitrator and attorney’s various social and business interactions. Among the interactions included in the court’s analysis were a chance encounter at a fundraiser, the attorney’s attendance at the arbitra-
Sign up to Volunteer at the DBA Community Day of Service Saturday, September 28, 2019 A day of community service hosted by the DBA’s Community Involvement Committee. For more information, visit www.dallasbar.org/dbacommunitydayofservice. If your firm or group has an idea for a project that you would like to organize, please contact beth@bethmjohnson.com, cspencer@ritterspencer.com, or galfaro@dallasbar.org.
tor’s judicial retirement dinner several years prior (which the arbitrator testified he did not remember until the post-award vacatur proceedings), and emails between them regarding restaurant and winery recommendations. The court concluded that these and other facts demonstrated a significant relationship between the attorney and arbitrator and should have been disclosed. Although the Karlseng decision was based on the significant relationship established by the totality of evidence, the court’s attention to seemingly insignificant encounters justifiably led to a heightened degree of attention in disclosures to social and personal interactions with arbitrators. A review of the caselaw since Karlseng suggests a number of additional facts attorneys and arbitrators should consider when making arbitration disclosures. For example, recent cases underscore the importance of examining the arbitrator’s relationships, not just with the parties and attorneys involved in the arbitration, but also with non-parties that may have relevant connections to those parties or attorneys. In 2018, the Southern District of Texas found evident partiality based on the arbitrator’s failure to disclose a longstanding relationship with the Chairman of the Board for an alleged affiliate of one of the parties. Likewise, the Texas Supreme Court has found evident partiality where an arbitrator disclosed some connections to a party’s law firm and an e-discovery company seeking to do business with that firm but did not disclose the full depth of his financial interests in and involvement with the e-discovery company.
Mike McCullough
Other recent Texas cases related to evident partiality include examination of undisclosed previous appearances by parties or party representatives before the arbitrator and undisclosed political interactions (such as Political Action Committees and associated events). By contrast, other Texas courts have found the following to be insufficient on their own to show evident partiality: undisclosed Facebook friendships, an undisclosed campaign contribution of $1000.00, undisclosed “serendipitous” encounters at university alumni events, and an undisclosed business relationship between a testifying expert and the mediation firm who contracted the arbitrator (where there was no evidence the arbitrator was aware of the relationship). Thus, courts continue to closely scrutinize claims of evident partiality, and parties seeking to vacate arbitration awards on this basis continue to bear a high burden. As the Karlseng court explained, an arbitrator need not conduct a “full investigation” into her past to avoid evident partiality, but adequate due diligence is necessary to identify potential interests, contacts, or relationships that need to be disclosed. Further, although the arbitrator has the obligation to make these disclosures, it is in the best interests of the parties to likewise perform their own due diligence into the relevant connections between them, their clients, and the arbitrators in order to preserve the validity of their arbitrations and protect potential awards from vacatur. HN Angela Zambrano is a partner at Sidley Austin and can be reached at angela.zambrano@sidley.com. Natali Wyson is an associate at the firm and can be reached at nwyson@sidley.com.
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Jul y 2 0 1 9
D al l as Bar A ssoci ati on l Headnotes 11
TEXAS CHAPTER The The Academy Academy is is pleased pleased to to recognize recognize our our Dallas Dallas Metro-Area Metro-Area Members Members for for
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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
Jul y 2019
Wellness
Finding Beauty in the Chaos BY JENNIFER ASHMORE
Is being a lawyer worth it? If you researched this topic, you would find plenty of ugly stories discouraging this profession: from the amount of debt you will incur, to the long hours each week, to the time away from family, and the high level of stress that comes with this profession. While some of this may be true, there is beauty, and yes, even harmony, in this chaotic profession we have chosen. Beauty finds itself in successful trial verdicts; working with wonderful clients along the way; and friendships developed with peers in our industry, as well as in our community. However, I have found the most joy in helping others in a way they cannot help themselves. Having a client depend on me to take care of an issue and seeing it through to a positive outcome is truly an opportunity that
most may not ever experience. The practice of law is a marathon— not a sprint! I am passionate about balancing health and family and enjoying life to its fullest while making memories along the way. In order to avoid some of the stress our career can bring, I have some tips that might help.
Gratitude
Want to change your life for the better? Commit to writing down daily 5 specific things that you are grateful for 90 days (it does not matter if it is a big or small thing, just that it makes you thankful to have it, or have experienced it). At the end of the day, give yourself a few minutes to think about your day and what made you happy or grateful. The magic happens when you look at the specific day and start to change your perspective. You begin to look for things to be grateful for, and when you focus
on looking for the good, then more good things start coming your way! For example, you can be grateful for: an extra hug from your kid, a potential-client call, or a dinner that you didn’t burn. Grab a legal pad and jot down 5 things a day. Also, make sure to leave it where you will see it and do it. Even the legal pad where you record the things that you are grateful for can be a small reaffirmation and reminder to keep reinforcing the positive things that make you feel grateful.
Journal
Sounds corny? Yep. Does it work? Oh yeah! Where do you put all of your stress? Where do you go when you have had enough of opposing counsel, a client, or your boss? Do you bottle it up? Eat a box of cookies? Drink a bottle of wine? When I first started journaling I thought that this was ridiculous, but then I realized that getting out all of my thoughts and feelings really does work! So grab a legal pad and set your timer for 3 minutes and write down whatever you want. Don’t worry about spelling, grammar, or if it even makes sense. The point is just to get it out of your head. You can even toss the paper (or burn it!) if you want to!
Breathe
Did you know that you tend to hold your breath when your body is under stress? Breathing is essential to calming your mind and your body. Take 10 deep breaths. Count to 5 when you inhale and to 5 again when you exhale. This is a great way to calm yourself when
you feel stressed. Or, if you want to try meditation, there are apps that you can download that will guide you through sessions.
Body check
We sometimes forget that our greatest asset is our health. Have you set resolutions or goals that you have not consistently followed? Making changes in your health does not have to be a complete overhaul. Sometimes small changes make a big difference. Here are two quick tips that will get you moving in the right direction! First, drink water! Hydration is essential for your body. Sadly, diet coke, coffee, and wine do not count! The goal here is to aim for half of your body weight in ounces of water each day! Second, eat breakfast and make sure it includes protein. Easy ways to grab protein are protein shakes, Greek yogurt, and eggs. If you need a reminder of health and wellness, or for a body check, spend a weekend volunteering at a local hospital, to reinforce how grateful one should be for physical health or for some motivation. Give these tips a shot! Think of it like an experiment. What changes work best for you and your life? Remember the key is to give it time to work and to also do it consistently. Enjoy the beauty in the chaos, and find that harmony! HN
Jennifer Ashmore is partner with Ashmore & Ashmore in Rockwall. Jennifer is passionate about the practice of law while balancing life outside of the law with her husband, two boys, and dogs! Jennifer is also excited about sharing the importance of health, mindfulness, and wellness (especially among professionals) all while rocking purple hair! #prplesq. She can be reached at jennifer@ashmorelawfirm.com.
Jul y 2 0 1 9
D al l as Bar A ssoci ati on l Headnotes 13
The KoonsFuller Dallas Team: R1: Ike Vanden Eykel* (CEO) R2: Liz Porter*, Fred Adams* (Shareholders) R3: Chris Meuse*, Rebecca Tillery Rowan*, Laura Hayes* (Shareholders) R4: Lindsey Vanden Eykel, Taylor Smith*, Richard Gray* (Associates)
KOONSFULLER: DIVORCE, CHILD CUSTODY, PROPERTY DIVISION, PREMARITAL AGREEMENTS, PATERNITY, APPEALS
Have you heard? With more than thirty proven attorneys and five offices across Texas (Dallas, Denton, Houston, Plano and Southlake), KoonsFuller is the largest family law firm in the Southwest. You’ve probably also heard that we take remarkably good care of our clients. To learn more about us, visit koonsfuller.com.
As recognized among
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As recognized among Tier 1 U.S. News – Best Lawyers ® “Best Law Firms” in Houston for Family Law by U.S. News & World Report L.P.
Dallas** | 1717 McKinney Avenue, Suite 1500 | Dallas, Texas 75202 | 214.871.2727 *Board Certified in Family Law by the Texas Board of Legal Specialization. **Principal Office
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
Jul y 2019
ADR/Collaborative Law
Limiting Discovery Before Arbitration BY JOHN POLZER AND SIDNEY SHIMKUS
One sentence in your arbitration clause can open your client up to expedited discovery, depositions and an evidentiary hearing—all before a trial judge is required to send the case to arbitration. This sentence usually is a “carve out” of an arbitration provision and permits a party to seek injunctive relief. However, the failure to properly contain or limit this clause may defeat a few of the goals of arbitration: limited discovery and limited expense. Further, if not worded properly, a successful plaintiff may be able to carry an injunction order to the arbitration that contains a judicial finding of probable success on the merits. Theoretically, a defendant could enter arbitration with the burden now shifted to rebut the court’s finding rather than a plaintiff being the party to put to its proof. The Federal Arbitration Act (FAA) provides that if any suit or proceeding is brought in the courts of the United States upon any issue referable to arbitra-
tion pursuant to an agreement, then the court shall stay the trial until such arbitration has been had in accordance with the terms of the agreement. 9 U.S.C. § 3 (emphasis added). Further, the FAA allows an aggrieved party, by the alleged refusal of another to arbitrate under a written agreement, to petition a court, and upon the satisfaction of the making of an arbitration agreement, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. 9 U.S.C. § 4 (emphasis added). The Texas Arbitration Act provides additional clarity for parties subject to an arbitration clause in permitting a party to file an application for a court order, prior to arbitration proceedings beginning, and request: an order to restrain or enjoin; an order to obtain discovery, perpetuation of testimony, or evidence before the arbitration proceedings begin; or an order to obtain other relief, within the court’s discretion, needed to permit the arbitration to be conducted in an orderly manner. Tex. Civ. Prac. &
THANK YOU TO THE 2019 CLERK & COORDINATOR SEMINAR SPONSORS: Business Litigation Section Probate, Trusts & Estates Section Tort & Insurance Practice Section Trial Skills Section As of 6/14/19
Rem. Code § 171.086(a)(3), (4), and (6). In 1988, in the RGI, Inc. v. Tucker & Associates, Inc. matter, the Fifth Circuit Court of Appeals considered whether the Federal Arbitration Act bars the issuance of preliminary injunctions pending arbitration. RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227, 228 (5th Cir. 1988). The Court acknowledged Congress’ intent for the Act to move the parties to arbitrate out of court as quickly as possible. Id. at 229. However, the language of the arbitration clause at issue in RGI provided, “[i]n the event that a dispute is submitted for arbitration pursuant to this paragraph, this Subcontract shall continue in full force and effect until such decision is rendered.” Id. at 230. Based on the parties “bargained-for provision” in which they clearly contemplated the status quo to continue pending arbitration, the court explained it was appropriate to issue a preliminary injunction to insure that the arbitration clause of the contract was carried out as written. Id. The court further explained that the district court’s issuance of the preliminary injunction fell in an area of apparent consensus among the other Circuit Courts as to preliminary injunctions under the FAA. Id. The 14th District Houston Court of Appeals in Feldman/Matz Interests, L.L.P. v. Settlement Capital Corp. followed the 5th Circuit’s analysis in reviewing a party’s right to injunctive relief pending arbitration. Feldman/Matz Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 887 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The court first highlighted the Fifth Circuit’s conclusion that a court may not enter a preliminary injunction if the parties’ agree-
ment did not contemplate maintaining the status quo. Id. The Feldman/Matz parties agreed in their arbitration clause that “with respect to any and all other disputes or claims between us whatsoever related to or arising out of our services, we agree that either of us may submit to a nationally recognized, neutral, arbitration association…” Id. At 881. Thus the parties did not consider or address maintaining the status quo or permitting other forms of relief pending arbitration. Id. at 887. The court conditionally granted the writ of mandamus and expressed that it was confident the trial court would enter an order granting the motion to compel arbitration and stay proceedings and not hold a temporary injunction hearing because arbitration had been invoked. Id. at 888. Although there is a lack of consistency amongst the Texas courts in their treatment of requests for judicial relief pending arbitration, it appears that courts will issue injunctive and other forms of relief when the parties have specifically considered the relief in the arbitration clause. If the arbitration clause does not limit the relief to a temporary restraining order, or uses other general language, a plaintiff may be able to seek a temporary injunction, along with the discovery and hearing permitted by that process. The plaintiff may also be able to carry an order into arbitration which not only preserves the status quo but also contains a finding of likelihood of success on the merits. HN John Polzer is the hiring partner at Cantey Hanger and an adjunct professor at Texas Christian University. Sydnie Shimkus is an associate attorney at Bell Nunnally & Martin. They can be reached at jpolzer@canteyhanger.com and sshimkus@ canteyhanger.com, respectively.
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Jul y 2 0 1 9 â&#x20AC;
D al l as Bar A ssoci ati on l Headnotes 15
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Jul y 2019
Self-Evaluation Privilege: An Overview BY ALEXIS SWANZY
For the past two years, the world has seen businesses overwhelmed with an increase in media attention regarding their failing ethical standards and noncompliance. This increase in media attention correlates with the increase in non-compliance reports (e.g., sexual harassment). NAVEX Global’s annual benchmark report analyzed over 1,200 ethics and compliance programs in 2017. Based on the NAVEX study, changing regulations and internal investigation reports are the top information sources companies with highly sophisticated compliance programs consult when making ethics and compliance training decisions. Increased reliance on internal investigation reports to make key business decisions raises a question of whether these reports are
discoverable. While plaintiffs are searching for ways to compel disclosing the reports, companies are looking to protect their reports while continuing to develop their compliance training programs. As a result, companies look to federal and state laws, which have expanded the number of privileges available over the years. Common law principles govern federal privileges unless the Constitution, a federal statute, or Supreme Court-prescribed rule provides otherwise. Consequently, federal courts have flexibility to expand existing privileges and to identify new privileges on a case-by-case basis. The so-called self-evaluation privilege is one such privilege. While federal appellate courts have not yet recognized the self-evaluation privilege, some district courts have. See, e.g., Melhorn v. New Jersey Transit Rail Opers., Inc., 203
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www.martinmerritt.com
F.R.D. 176, 178-179 (E.D. Pa. 2001). Under this privilege, information is privileged if: (1) it results from a critical self-analysis undertaken by the party seeking protection; (2) the public has a strong interest in preserving the free flow of the type of information sought; (3) the information is of the type whose flow would be curtailed if discovery were allowed; and (4) the information was prepared with the expectation of confidentiality and has in fact been kept confidential. Dowling v. Am. Haw. Cruises, Inc., 971 F.2d 423, 425-26 (9th Cir. 1992). The Northern District of Texas referenced the self-evaluation privilege in the early 1980s when attempting to balance the value of making documents and communications discoverable with the corporation’s interest in self-investigation and preparation for litigation. In re LTV Securities Litigation, 89 F.R.D. 595, 613, 621 n.22 (N.D. Tex. 1981). However, the Fifth Circuit later refused to recognize the self-evaluation privilege when the documents in question were sought by a government agency. In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000). Nonetheless, the Fifth Circuit declined to rule whether the self-evaluation privilege may be recognized under different circumstances. Id. Although the Fifth Circuit has not adopted the self-evaluation privilege, there are other means to accomplish the same goal: that is, protecting the material created from companies’ self-evaluations. The “current corporate employee” privilege, recognized in federal common law, flows from the broader attorney-client privilege. Evaluated by the Upjohn test (see Upjohn Co. v. United States, 449 U.S. 383 (1981); and see Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647-48 (Tex. 1995), this privilege protects communications by a corporate employee— regardless of the position of the employee— when the communications concern matters within the scope of the employee’s corporate duties and the employee is aware the information is being furnished to enable the attorney to provide legal advice to the corporation. While there are certain communications with former corporate employ-
ees that are protected by the attorney-client privilege, the full extent of that protection is unclear. Nevertheless, the implication is that the Upjohn test would also apply to the communications of former employees. However, these employee privileges may not cover all the information exposed by a company’s selfevaluation. Texas law recognizes a variety of privileges, but Texas lacks a single source of authority outlining every recognized Texas state law privilege. Instead, these privileges are scattered across different levels of legislative and judicial authority. Further, the Texas Legislature gave the Texas Supreme Court the power to make rules regarding civil practice and procedure, including privileges. Texas state law has not explicitly adopted the self-evaluation privilege. Instead, the discoverability of investigative reports has been decided on a case-by-case basis. For example, the San Antonio Court of Appeals held a company’s investigative report created after the opposing party hired an attorney was not discoverable. In re Weeks Mar., Inc., 31 S.W.3d 389, 391 (Tex. App.—San Antonio 2000, orig. proceeding). The Texas Supreme Court held an investigation report unrelated to the matter that gave rise to the current litigation was discoverable. Axelson, Inc., v. McIlhany, 798 S.W.2d 550, 552-53 (Tex. 1990). The deciding factor in both of those cases was the threshold question of whether the report was made in anticipation of litigation. Texas therefore continues to focus on the motivation behind the company’s reasons for a self-evaluation, rather than the self-evaluation itself. The self-evaluation privilege is a mechanism companies use in some jurisdictions, but neither the Fifth Circuit nor Texas has explicitly adopted such privilege. However, the purpose behind the self-evaluation privilege is rooted in currently recognized and adopted privileges in Fifth Circuit and Texas state courts. Thus, the self-evaluation privilege may offer a means to fill possible gaps between the other privileges. HN Alexis Swanzy is an associate at Kessler Collins, P.C. She can be reached at aswanzy@kesslercollins.com.
DVAP’s Finest THELMA CLARDY
Thelma Clardy is a sole practitioner, specializing in family and probate law. 1. How did you get involved with pro bono? I initially got started when I worked for Legal Aid of NorthWest Texas years ago (then Legal Services of North Texas), and continued it throughout my career. 2. Which clinics have you assisted with? I have assisted at the Martin Luther King, Jr. Community Center in the past, and most recently I have assisted at the clinic at Friendship West Baptist Church. 3. Describe your most compelling pro bono case. My most compelling case was helping a grandmother obtain custody of her grandchildren, as the parents were found to be drug-addicted and convicted felons. 4. Why do you do pro bono? Corny as it sounds, it makes me feel good, and I feel like I am making a difference for those who might not otherwise get the help they need. 5. What is the most unexpected benefit you have received from doing pro bono? Pro bono service has enabled me to use my law license for good, and the most unexpected benefit I have received from doing pro bono was a heart-felt thank you card from a client. It meant a lot to me.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Jul y 2 0 1 9
Focus
D al l as Bar A ssoci ati on l Headnotes 17
ADR/Collaborative Law
Mediating with Personality Disordered and High Conflict Characters suggest final solutions as they will tear other people’s proposals to shreds. • Explain severe negative consequences of their action or inaction in a factual, nonemotional manner. Gently provide reality checks. • Do not reveal any more of yourself than is absolutely necessary as they will attempt to use what they learn to manipulate, criticize and disparage you and the process. Do not assume that you can influence or change them by modeling good behavior. Be aware of your own emotional triggers, weaknesses and blind spots. Our ability to think and reason diminishes when we are triggered. • Help draft the tightest mediated settlement agreement ever, in as much detail as possible. The high conflict clients will revel in finding loopholes and exploiting them to their own benefit. HN
ANDREW STUBBLEFIELD
SAWYER NEELY
SCOTT SCHARDT
MARK TORIAN
ROBERT SAYLES
WILL SNYDER
WENDI ROGALINER
Shannon R. Lynch is a solo practitioner with a mediation, collaborative, and family law practice in Dallas. She can be reached at shannonlynch@dallasmediator.com.
STACY SIMON
SHAWN LONG
DICK SAYLES
setting the ground rules, enforcing those rules, and maintaining the authority figure role. Repeat legal principles and their application and be honest about what you believe is going on in a case, as this builds trust. • Try very hard to not do or say anything that may appear disrespectful. The individual likely will be disrespectful, making this a difficult task. • Rephrase everything to make them feel like the hero. Let them claim any and all good ideas as their own, as they will do that anyway. Confronting them may lead to fiasco. Empathize with them, and praise their performance in front of others. Remember that —they live for attention and admiration. • Constantly redirect their focus toward progressing forward, distracting them from relentlessly readdressing and dissecting their problems. Do not forget that these individuals crave respect and control but also love drama and chaos. • Offer many options. Do not directly
MARK STRACHAN
How quickly, as a mediator, do you see red flags pop up about a case you are about to mediate? Once you receive the parties’ information sheets, or perhaps during that call with counsel savvy enough to give you advanced warning that they may have an extremely difficult client? How loudly do those internal sirens blare when someone walks in your door for a session, when their mere aura warns you of impending doom and failed mediation? The older (or should I say, wiser) that I become, the more quickly and loudly these signs are apparent. So, how should a mediator deal with individuals with personality disorders— those who are often termed “high conflict personalities?” Here is a very brief summary of the most common of personality disorders. These disorders manifest themselves in an enduring pattern of behavior deviating markedly from the expectations of the individual’s culture. They denote rigid, inflexible, and maladaptive patterns of thinking and behaving. More comprehensive descriptions are found in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM-5, 2013). These disorders include, among others: • Histrionic: These people need to be the center of attention and often react hysterically to the latest crisis. They have an exaggerated emotional expression. • Borderline: These are individuals who exhibit erratic, unpredictable behavior. They engage in “splitting,” viewing all things as good or all bad, and swing from extreme closeness/love (idealization) to extreme dislike/anger (devaluation). • Narcissistic: It is all about them, and they have no true awareness of anyone else in a process. Believing that they are superior to others, they cannot handle anything that may be perceived as criticism, and they react with rage and contempt. Narcissists are rarely truthful and are highly manipulative. • Antisocial: They have their own set of rules and pervasive patterns of disregard for the rights of other people, manifesting as hostility. They experience little or no remorse for the harm they cause others. Individuals exhibiting behaviors defined by these disorders also take little to no responsibility for their actions – and instead blame their victims for “causing” their behavior and alleging that their targets of blame deserve their fate – then they are known as “high conflict personalities.” They make effective mediating arduous at best. The first step in successfully mediating a matter involving high conflict personali-
ties is to identify that the possibility exists that the “earth may be scorched” on numerous occasions throughout the day, and to be prepared for much aggravation. The first omen may be that you experience a “seduction,” the attempt of such characters to control everything and everyone as they strive to influence your thinking and manipulate you—even as early as during the mediation scheduling process. Once you suspect that there may be a disordered person in your mediation, you must essentially resolve to reduce their hostility and highly problematic behavior, which is very challenging. I find that the best way to effectively mediate these matters is to follow the following protocol: • First, understand that these individuals do not experience the same emotions as “normal” people. They feel no empathy, regret or remorse, and lying is just a part of the game. • Build trust and rapport by clearly explaining the mediation process in detail,
SAM ACKER
BY SHANNON R. LYNCH
New Dallas Office. Same Promise. Bradley is pleased to introduce our new team of Dallas attorneys: Dick Sayles, Will Snyder, Wendi Rogaliner, Shawn Long, Robert Sayles, Mark Torian, Mark Strachan, Sawyer Neely, Scott Schardt, Sam Acker, Stacy Simon, and Andrew Stubblefield. Long recognized in Texas for their quality legal counsel and exceptional client service, our new colleagues handle a wide range of litigation and business matters of every size and scope.
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/ lawyerreferralservice or call (214) 220-7499.
As a national law firm with offices in six states and the District of Columbia, Bradley understands that legal matters are more than contests of critical thought; they have real-world implications, which is why we prioritize integrity. It is this integrity that inspires all of us to go above and beyond our clients’ expectations by providing innovative solutions, dependable responsiveness and a deep commitment to success. For more information on how we can serve you from our new Dallas office, visit www.bradley.com or contact: Dick Sayles, dsayles@bradley.com, 214.939.8701 BL Rankings
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No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. ATTORNEY ADVERTISING. Contact: Dick Sayles, Esq., 214.939.8701, dsayles@bradley.com, Bradley Arant Boult Cummings LLP, 4400 Renaissance Tower, 1201 Elm Street, Dallas, TX 75270. Principal office location Birmingham, AL. ©2019
18 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
Jul y 2019
ADR/Collaborative Law
Making Effective Demands and Offers at Mediation BY JAY C. ZELESKEY
Effective demands and offers get cases settled. Unless you have the perfect case, you must convince the other side that your case has merit and that trial is too risky. Mediation is an opportunity to persuade the other party’s decision-maker about the merits of your client’s case. It is highly unlikely that you will be able to convince the other side that their case is completely without merit. However, you may be able to help them understand that your case has more merit than they previously believed. You might persuade them their case has problems they previously did not recognize. In order to increase the opposing party’s assessment of their risk, you must make effective demands and offers at mediation. This article provides suggestions to consider when negotiating at mediation. Pre-mediation strategies. The work to obtain a desirable result for your client
starts well before the mediation. You can create more risk for the other party with each demand or offer you make with strategic pre-mediation preparation. Mediation timing can increase the likelihood of settlement. Does the mediation need to be very early before litigation costs make the case more difficult to settle, or close to a summary judgment hearing or trial setting to put pressure on the opposing party to resolve the case? Also, decide what you need to accomplish prior to the mediation. Do you need to schedule depositions or a summary judgment hearing shortly after the mediation to put pressure on the other side? Knowing a particular deposition or hearing will occur shortly after mediation may increase your opponent’s evaluation of their risk. However, you should not wait until the day before mediation to send a deposition notice or file a motion. Your opponent will see this as a litigation tactic and dismiss it. Anticipate the opposing party’s posi-
Client Development— Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@dallasbar.org. Submissions will be discussed at monthly CLE Committee meetings.
Texas Business Litigation Edited by Sofia Adrogué and Caroline Baker, Texas Business Litigation is a comprehensive handbook for litigators and transactional attorneys. Get current on these topics and more: • Bankruptcy Ramifications in Business • Breach of Fiduciary Duty Claims in Business Transactions • Evaluating Commercial Cases: Avoiding Icebergs • Criminal Law in Business Torts Cases
tions, evidence, and interests prior to the mediation. By anticipating the other side’s positions, evidence, and interests, you will be better prepared to focus on the issues that might prevent settlement and respond to your opponent’s arguments with evidence of your own. Discuss the opposing party’s position with your client. Your client may have critical information that you won’t know unless you ask the client. Additionally, consider calling opposing counsel prior to mediation and discussing the case. Do not wait until mediation to discover your opposing party’s position and evidence. Knowing the other side’s position provides guidance in making more effective demands or offers. Send information to mediator in advance of mediation. A well-prepared mediator makes more effective demands or offers on your client’s behalf. The mediator is your client’s advocate to the opposing side. Any pre-mediation information provided will give the mediator a better understanding of the factual and legal issues. Arming the mediator with information and evidence increases the persuasiveness of your client’s demands or offers. You want the mediator prepared to clearly explain and aggressively argue your client’s position and evidence to the opposing party. Present evidence with each demand or offer. Advocating your client’s position without presenting any evidence is like attempting to fly a kite without any wind. It just won’t fly. The opposing party needs to see the evidence that your client will present to the jury. On any critical disputed issue: Send highlighted excerpts of depositions to support your client’s position.
Explain the inferences to be drawn from the testimony, if an explanation is needed. If a witness has not been deposed, provide an affidavit with their anticipated testimony. Provide relevant documents and pictures supporting your case. Give the mediator trial reports that bolster your client’s position and demonstrate risk to the other side. Do not assume the other side’s decision-maker has reviewed and evaluated all the information you provided prior to mediation. Providing information that supports your legal position can help your opponent see more merit in your case. Send messages with demands and offers. Your client’s demand or offer sends a signal to the opposing party, so consider what message you want to send. Also, consider whether you want to include a verbal message with the demand or offer, such as “we believe our demand is reasonable and we expect a reasonable offer in response,” “we are near the end of the rope” or “we have lowered our demand substantially and expect a considerable move from the other party.” Mediation provides an opportunity to persuade the opposing party about the merits of your case and raise their awareness of the risk of trial. Simply trading numbers at mediation fails to increase the other side’s assessment of their risk. You must make effective demands or offers that make your opponent understand that a settlement, not trial, is in their best interest. HN Jay Zeleskey has been mediator with Zeleskey Mediations for more than 20 years. He can be reached at jay@ zeleskeymediations.com.
Register for the 28th Annual Bench Bar Conference The Conference provides more than 8 hours of CLE including Ethics. We encourage lawyers from all practice areas to attend and engage. The beautiful resort setting combined with the casual environment make it ideal for meeting other Dallas area attorneys and judges. Grow your network and gain referrals at Bench Bar.
• Employment Law Litigation • Fraud and Negligent Misrepresentation • Intellectual Property and Trade Secrets Litigation • Selected Causes of Action Unique to the Oil and Gas Industry • Preservation of Error – Appeal Tactics • Speech Based Torts: Libel, Slander, Business • Disparagement and Invasion of Privacy Learn from the collective wisdom, experience and practical advice of a stellar panel of veteran Texas litigators, judges and arbitrators!
Highlights • Excellent CLE topics • Breakouts with the Judges • Presentation of the Trial Lawyer of the Year Award to E. Leon Carter, Carter Arnett PLLC • Brunch with the Bench • Night Golf and more!
To order, call 1.800.756.8993 or visit www.TexasLawyerBooks.com.
Sponsors/Exhibitors – Contact Rhonda Thornton, rthornton@dallasbar.org for more information. Proceeds benefit the Dallas Volunteer Attorney Program.
Jul y 2 0 1 9
Focus
D al l as Bar A ssoci ati on l Headnotes 19
ADR/Collaborative Law
Child Specialist, Amicus or Ad Litem? BY MELINDA HARTMAN EITZEN
Soliciting the voice or desires of the children can be important in family law cases. Where do they want to live most of the time? Why? What accommodations do they need? Is it important to them to get to soccer regardless of which parent’s night it is? Do they prefer not to be asked what parenting time schedule they prefer and are they concerned about hurting a parent’s feelings? We want to know not because we are going to let this information be the deciding factor. We want to know because it should be one factor in the overall decision-making process. The way we find out what the children’s wishes are looks different in collaborative cases versus litigation. In collaborative cases we have a neutral role called Child Specialist. In litigation we have Amici and Ad Litems. In order to be a “collaborative case” under the Texas Family Code, the clients must enter into a participation agreement, which is the contract that instigates the collaborative process per Texas Family Code 15.102. The level of confidentiality of the information provided by children when using a Child Specialist in collaborative cases is higher than the Family Code prescribes for an Amicus or Ad Litem in litigation cases. All three roles involve making the children’s wishes known to the parties, and in the case of the Amicus and Ad Litem, to the Court. In addition, all three roles seek to help the decision makers, which are the parents in collaborative cases and the Court in liti-
gated cases, make a decision that is in the children’s best interest. All three roles advocate for the children, but perhaps in different ways and with different people in some cases. The big difference is that the collaborative Child Specialist will never testify to and will never report in a public setting what the children have said, requested, complained about, need help with or want. Instead, the Child Specialist will relay this information to the other professionals on the collaborative team, to the parents, or both. It is important that information obtained from the children not be used against them by either of the parents. The Child Specialist role has some flexibility. The person filling the role is typically a mental health professional with a background in child development. Typically, the child specialist will meet with the children, interview them, and report back to the collaborative team and/or parents. The goal of the interview may be to determine what the children’s wishes are regarding the parenting time schedule or other issues that affect them in the divorce. For example, one child told the child specialist that she wanted to see both parents for some part of the day on Christmas day if possible. Another asked that the cat travel back and forth between homes with him. In one situation the child relayed that she wanted to see her personal mental health counselor more often. The child specialist will report back either only to the neutral mental health professional on the collaborative team or to the whole team and
parents. This report might be the end to the child specialist’s involvement, or the child specialist might work with everyone to flesh out the specifics of the parenting plan. Amici are attorneys appointed by the Court to provide legal services necessary to assist the court in protecting a child’s best interests, but not to provide legal services to the child. Attorneys Ad Litem are attorneys who provide legal services to a child. A Guardian Ad Litem is a person appointed (not necessarily an attorney) to advocate to the court what he or she believes to be in the best interests of a child. These all sound very similar, and they are. The big distinction is that an Attorney Ad Litem has to take instruction
from the client regarding the child’s wishes and pursue them, even if, in the Attorney Ad Litem’s judgment, those wishes are not consistent with the best result. The Amicus considers what the child wants but considers other things as well and uses the tools of a lawyer to advocate for what the Amicus believes is best for the child. The Amicus’s client is the Court. It is helpful to the parents, collaborative team and in litigation, the Court, to have information about the child’s desires. It is equally important that we obtain it in a way that is least harmful to the children. HN Melinda Hartman Eitzen is a partner at Duffee+Eitzen. She can be reached at melinda@d-elaw.com
Moms in Law Events July Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is going on its third year of being a no pressure, no commitment, informal, fun, support group for lawyer moms. The July events are: Thursday, July 11: Noon, Ziziki’s (on Forest & Preston) Friday, July 26: Noon, Saint Ann’s (2550 Harry Hines Blvd.) RSVP Rocio@SnellingsInjuryLaw.com Email christine@connatserfamilylaw.com to join the Moms in Law email listserv.
This O d Dog Happens To Know A Few Tricks. Rely on a trial lawyer with 47 years of experience and 180 trials. When your case needs to be mediated, call Al Ellis, a trial lawyer who has the experience to help you creatively resolve any dispute. His vast experience in the courtroom gives him comprehensive insight that allows him to understand the different perspectives of each case. Al is one of only 500 U.S. members of the International Academy of Trial Lawyers, a former President of the Dallas Bar Association, and the recipient of the Morris Harrell Professionalism Award — evidence that he has earned the respect of peers on both sides of the docket. Once Al gets his teeth into a case, he won’t let go, working tirelessly until he negotiates a fair, mutually agreeable deal. When it’s time for mediation, there’s no one better to have at your side. Voted one of D Magazine’s Best Lawyers of 2015 for Alternative Dispute/Mediation
AL ELLIS
T R I A L L AW Y E R / M E D I A T O R Sommerman, McCaffity, Quesada & Geisler, LLP 214.720.0720 | Dallas, TX al@textrial.com
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ&#x20AC;
Jul y 2019
BAR NONE XXXIV
Once again, Bar Noneâ&#x20AC;&#x2122;s cast revealed that their abilities extend beyond the practice of law. Celebrating their 34th year, Bar None XXXIV: Lawquaman provided an uproarious performance! Led by show director Martha Hardwick Hofmeister, choreographer Rhonda Hunter, and producer Tom Mighell, the show played for four nights in June, and thanks to the Dallas Bar Foundation and these hardworking singers, dancers and actors, more than $1.5 million has been contributed to the Sarah T. Hughes Diversity Scholarships, benefitting nearly 50 law students since 1986. For more information, visit www.barnoneshow.com. Photo credit: Jack Arthur.
Jul y 2 0 1 9
D al l as Bar A ssoci ati on l Headnotes 21
L AW Q U A M A N
Thank You, Bar None Sponsors! On behalf of the Sarah T. Hughes Diversity Scholarship, the Dallas Bar Foundation salutes and thanks the following sponsors of Bar None XXXIV. Their generous contributions not only benefit the scholarships, but they made this year’s show possible.
Mogul:
Producers:
Carter Arnett DataPlus Consulting Hartline Barger Sarah T. Hughes Alumni Scholars
Directors:
Burdin Mediations DBA Business Litigation Section Farrow-Gillespie Heath Witter, LLP The Gwinn Foundation Haynes and Boone, LLP Kastl Law, P.C. Shackelford, Bowen, McKinley & Norton, LLP
Stars:
Altrusa Int’l of Downtonw Dallas, Inc. • Brown & Hofmeister, LLP Cooper & Scully, P.C. • Cowles & Thompson, P.C. • El Centro College Rhonda Hunter • Hunton Andrews Kurth LLP • Jackson Walker L.L.P. John K. Horany P.C. • John McDowell • Ken Mighell • Minuteman Press Sheppard Mullin Richter & Hampton LLP • Waters Kraus & Paul, L.L.P. William “Mac” Taylor Inn of Court
DALLAS BAR ASSOCIATION
all Not es Hero r wea ! s cape
PRESENTS
S S E C C A L A U EQ E C I T S U TO J
o the nate T fiting DVAP! o D d ro an paign bene per He u S a e Cam BE Justic in o t ess nition g cc A o c l e a al, e r Equ includ iness Journ s Perks u ore! llas B the Da dnotes & M Hea
PIONEERING WOMEN:
THE IMPORTANCE OF SPONSORING OTHERS IN THE PROFESSION JOIN US FOR A PANEL DISCUSSION ON WOMEN LAWYERS’ CONTRIBUTIONS TO THE LEGAL LANDSCAPE OF TEXAS
PANELISTS
Shelton T. Gibbs Kaufman County Assistant District Attorney
Erleigh N. Wiley Kaufman County District Attorney
Amy M. Stewart Stewart Law Group PLLC Moderator
Chief Justice Linda B. Thomas (Ret.) Fifth District Court of Appeals
Chief Justice Carolyn Wright (Ret.) Fifth District Court of Appeals
July 23, 2019 NOON at BELO MCLE: 1.00 Pending SPONSORED BY:
re at Learn Mo
pcampaign
/dva www.dallasbar.org
Dallas Asian American Bar Association Dallas Association of Young Lawyers Dallas Hispanic Bar Association Dallas Women Lawyers Association J.L. Turner Legal Association
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
DBA Members Elected to State Bar Leadership Roles STAFF REPORT
DBA Past President Jerry C. Alexander was selected Chair of the Board for the State Bar of Texas. Mr. Alexander took office during the State Bar of Texas Annual Meeting in June in Austin. He will serve as chair until June 2020. Mr. Alexander is president of Passman & Jones, P.C., having joined the firm in 1972, the same year he earned his J.D. from Southern Methodist University. He has handled complex business litigation for more than 30 years in the areas of antitrust, business torts, patents, trade secrets, unfair competition, and labor-related business issues. He was chair of the DBA Board of Directors in 2012, and served as DBA President in 2016. In addition, he has served on the State Bar Board of Directors since 2017 and on the Law Focused Education Committee from 2007 to 2009. Tino A. Ramirez was elected Chair of the Board for the Texas Bar Foundation. An attorney with Ramirez & Associates, Mr. Ramirez is an experienced immigration attorney who is also skilled in issues of international transactions and all aspects of doing business abroad. He practices a broad range of international business, leading the firm’s Latin American practice and serves as managing partner for the firm’s Mexico office. Before being selected as Chair of the Board, Mr. Ramirez served on the Board of Directors for the State Bar of Texas from 2013-2016. He has also served as Secretary/Treasurer and Member of the Board of Directors of the DBA, where he has also chaired the DBA’s International Law Section. He is a graduate of the University of Arkansas and Texas Wesleyan University School of Law. HN
Jerry C. Alexander
Tino A. Ramirez
REVIEW OF OIL & GAS LAW XXXIV August 8-9 at Belo
Jul y 2019
Six Methods of Negotiation BY CLAUDE DUCLOUX
Review of a Speech by James A. Baker, III Former United States Secretary of State Former White House Chief of Staff (Presented in Houston, Texas 2016: and reported in the Texas Bar Journal, June 2016). As a lawyer who has handled perhaps 2,000 mediations and dozens of trials and appeals, I read with interest the re-published speech presented by the eminent James A. Baker III in The Woodlands (a northern suburb of Houston, Texas) in 2016 to the International Petroleum Negotiators’ Summit. Here is my review and distillation of Secretary Baker’s advice on high level negotiations. First and foremost, you need to understand your opponent’s position. This is good advice for any negotiator’s preparation. If you overlook putting yourself in your opponent’s shoes, understanding their motivations, strengths, and fears, your chances for success are based upon luck. Build trust through continuing personal relationships. Baker says that forming friendships and mutual respect advances the chances of reaching agreements. The other side must trust that you will do what you say with no trickery or device. Obviously, this evolves over time and is not something that you can do instantly. Parallel reciprocal confidence building. This means that you should concentrate on a series of small negotiations, including an early one that can be resolved quickly, reasonably, and amicably. This builds momentum. Finding common points of agreement shows progress. Remember that “A dialogue is more than two monologues”— Ambassador Max Kampelman. Don’t dominate the conversation. The longer you can keep sides talking to one another, the better the chances are that a middle ground can be reached. Principled pragmatism. This is the art of the possible without the sacrifice of the principle. This means reaching agreement without sacrificing your core principles. In this expla-
nation, Baker explains how the best politicians will work to get as much as they can toward a goal (step by step) without threats or shutting down the government (something that is not happening now, sadly, in our divided government). Timing. This point highlights the ability to recognize when to press a point and when to withdraw. This is also an important factor in any mediation. Who needs this to settle more quickly? Who can afford to drag it out? Prioritize and acknowledge, for example, that a plaintiff who needs to settle will likely get less relief than one who can wait. Maintain a deep appreciation and respect for politics. By this, Baker means two things which are both definitions of “politics”: (i.) First: In the first sense, politics is the science of actually winning election to public office; (ii.) Second: Politics in the second sense is what occurs between elections: the process of turning ideas into policies, in other words, governing. It is through the second sense that we transform political philosophy into public policy. The point is that political power ultimately derives from public support. So, a public official who loses public confidence also loses power. (Baker also adds how important it is to have real business experience outside of politics first— become a good businessman, lawyer, or other professional before diving into politics). The bottom line is, therefore, every policy decision—whether it be promoted by a President or other public official—must have public support. I must add my own explanation, because rarely do I have the chance to mediate matters of governmental policy. Converting this principle to a private negotiation, you must have the support of the people who hired you as their attorney or negotiator in order to pursue resolutions that they have confidence will resolve the issues presented. Anyone who would like to read the article in full may access it through the Texas Bar Journal, June 2016, page 426. HN
Register at www.reviewofoilandgaslaw.com
Presented by the DBA Energy Law Section
Parental Leave Initiatives
Cyber coverage now included with our malpractice policy. 40 YEARS SUPPORTING TEXAS LAWYERS
TLIE.org / info@tlie.org / (512) 480-9074
In today’s legal market it is important for employers and employees to be informed about employment matters impacting the profession, one of which is parental and childcare benefits. In order to assist attorneys and firms with this information, the Moms in Law Group, with support from the from the Dallas Bar Association and Dallas Association of Young Lawyers, has begun the task of collecting information related to Parental Leave Initiatives. A voluntary initial survey will be sent out to the largest law firms in Dallas, and information collected from the survey will be aggregated and released in a capstone report. Kanarys, a Dallas-based technology company that aims to foster collaboration between companies and employees on diversity, equity, and inclusion in the workplace will assist with collecting the information. Please consider lending your support and participating in the survey.
Email lmanor@velawoodlaw.com for any questions related to the Parental Leave Initiative and christine@connasterfamilylaw.com to join the Moms in Law email listserv.
Jul y 2 0 1 9
D al l as Bar A ssoci ati on l Headnotes 23
Classifieds
July
EXPERT WITNESS
Economic Damages Experts-GMCO Litigation Damages Firm. Economic Damages Valuation Experts. GMCO a CPA firm with significant testifying experience. George Mendez CPA CVA has more than twenty years’ experience providing economic damages, lost profits, damage calculation testimony in court, deposition and arbitration. The firm provides services regarding commercial damages, lost profits, intellectual properties, employment, personal injury/ lost earnings wrongful death, and insurance litigation. George Mendez has experience in most industries including energy/oil & gas, manufacturing, transportation, hospitality, service, distribution, and construction. GMCO serves attorneys in Dallas/Ft. Worth, Houston, and Austin/San Antonio. Contact George Mendez CPA CVA .Dallas/Ft Worth (469) 248-4477 or Houston 713-8925037 experts@georgemendez.com
environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax copy machines, notary, internet, two conference rooms, two kitchen areas and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa at (214) 696-9253. North Dallas – Two professional offices available in suite with four attorney’s with access to two conference rooms, kitchen, fax machine, free Wi-Fi, and free parking. Contact Ron at (214) 231-8855 or rmiller@ legalcpa.com. LBJ Freeway & Coit – Full Second floor! Approximately 12,000 sq. ft. of shell space available, glass window perimeter. Ready to be built to suit your needs. Prime location and visibility from LBJ Freeway. Easily accessible from Far North Dallas and Downtown via North Central Expressway. First floor lobby, entranceway, and parking lot newly remodeled for a welcoming, impressive feel. Please e-mail: management@8001lbj.com for a tour or further information.
SMU Dedman School of Law – Dean’s Office, ATTN: Betty Alexander, P. O. Box 750116 Dallas, Texas 75275-0116 or email bettya@ smu.edu. REF: Position Number – 00053426 SMU will not discriminate in any program or activity on the basis of race, color, religion, national origin, sex, age, disability, genetic information, veteran status, sexual orientation, or gender identity and expression. The Executive Director for Access and Equity/Title IX Coordinator is designated to handle inquiries regarding nondiscrimination policies and may be reached at the Perkins Administration Building, Room 204, 6425 Boaz Lane, Dallas, TX 75205, (214) 768-3601, accessequity@smu.edu. Dallas Family Firm that helps people through divorce with empathy and unyielding representation seeks associate with 5+ years’ experience. Email resume to christina@katielewisfamilylaw.com; subject line should be your last name in all caps plus one word that describes you.
Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 6659458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.”
Office space available at 4054 McKinney Avenue. Second floor corner suite with three offices, reception and file room. This space is 1275 sq. / ft. and rents for $1,950.00 per month fixed rate. Full service with weekend and evening HVAC. Call (214) 520-0600. Solo practitioner desires to sublease office space from solo or small firm. Leave message (214) 213-8701.
Experienced Attorney. Palmer & Manuel, PLLC provides a platform in iconic Campbell Centre where you get to do what you love – practice law while we handle the administration and logistics. Run your practice and be an entrepreneur as part of our well-established group of respected and collegial attorneys with varied practice areas. Keep 95% of your fees plus earn on your internal referrals. Reasonable fixed overhead covers rent, legal assistant (or bring your own), office administrator, PCLaw/ProDoc, Lexis, phone, internet, website, parking, malpractice insurance, etc.). See www.pamlaw.com or contact Larry, Marty, or Jeff at (214) 242-6444.
OFFICE SPACE
POSITIONS AVAILABLE
SERVICES
Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619 Hibernia Street and 2608 Hibernia Street, 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/ month. Includes phone & internet. Phone (214) 987-8240. Private offices designed for attorneys available at 75 & NW Hwy - Class A High Rise. ENGAGE is an innovative attorneyonly workspace. Plug in to a secure & professional environment with mail/parcel handling, guest reception, conference rooms, free garage parking, office/kitchen amenities, and networking opportunities. Contact Chelsea at (214) 865-7770 or chelsea@ engagelawspace.com. Office space available at 4303 N. Central Expressway for lease in a professional legal
OFFICE SPACE WANTED
SMU Dedman School of Law is seeking a Director for its Federal Taxpayers Clinic and Tax LL.M. program. The Tax Clinic is an academic program and an important part of the clinical program and tax curriculum. J.D. degree required. Candidates must have an excellent academic record, at least five (5) years of legal experience, and must be licensed by the Supreme Court of Texas and admitted to practice in the United States Tax Court. Candidates must also have experience representing clients before the IRS, excellent written and oral communication skills, the ability to manage multiple tasks, manage a caseload and build collaborative relationships within law school and larger community. Prior teaching experience and prior experience in running a legal clinic are also preferred. Hiring is contingent upon the satisfactory completion of a background check. Salary: Paid monthly - 12-month contract. Full benefits; salary commensurate with experience. Please send a cover letter and resume by July 30, 2019 to:
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
ADVERTISE HERE! Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
The Attorney’s Therapist: Kate Casey, LPC, JD. As a former practicing attor-
ney, Kate understands the overwhelming feelings of stress, burnout, and isolation that often accompany the art of balancing life with the practice of law. Kate will help you evaluate your choices, identify areas for change, and implement an achievable plan which will allow you to become the best version of yourself both at work and home. Autumn Ridge Counseling and Wellness is conveniently located at 270 Miron Drive, Suite 112 in Southlake. Kate can be reached at (817) 881-1914 or Kate@AutumnRidgeLPC.com or AutumnRidgeLPC.com. Quality Network Support/Services. Bluefinger is bringing quality back to Information Technologies by providing all-inclusive, high-touch IT services. Your clients depend on your firm… you can depend on Bluefinger. Our experienced engineers are dedicated, responsive, and committed to delivering zero downtime and optimized network solutions that are on-budget. We support software and solutions typically used within the legal industry. A few include Amicus, Sage, LexisNexis Time Matters, PCLaw, document and storage management, compliance software, onpremise Exchange Mail Servers and cloud-based Office365 mailboxes, both with the options of email archiving, litigation hold and eDiscovery. When you need safe, secure access to your client data from anywhere, anytime, from any device, you can rely on Bluefinger Technologies. Serving DFW since 1997. www.bluefinger.net/legal (972) 9059035. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
24 HHN_July2019-TableAd_Lft_New.pdf e a d n o t e s l D 1a3/27/2019 llas B a r A s s o ciation 11:39:03 AM
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