Dallas Bar Association
HEADNOTES
Focus ADR/Collaborative Law
May 2018 Volume 43 Number 5
Focus
DBA WE LEAD
ADR/Collaborative Law
Tips on Arbitration Advocacy from an Arbitrator BY MARK A. SHANK
On April 12 Session 2 of the DBA WE LEAD program was held at Mary Kay headquarters. In addition to a presentation by Monica Blacker of BAX Advisors, participants were treated to a corporate counsel panel. The panel, shown with DBA President Michael K. Hurst (left) consisted of (left to right) Stephanie Zapata Moore, Vistra Energy; Lauren Leahy, Pizza Hut U.S.; Tracey Preston, Neiman Marcus; Dena DeNooyer Stroh, NTTA, moderator; Julia Simon, Mary Kay; and Shonn Brown, program chair.
Recently, in preparation for a presentation on arbitration advocacy I interviewed several arbitrators about what advocates do right and wrong when appearing before them. Arbitrators uniformly comment that advocates often approach arbitration in the same way they approach litigation. Doing so diminishes their effectiveness and often results in wasted energy. Most of the interviewees were eager to express their views and recommendations about these issues, which I have summarized below:
Know the Rules
Focus
ADR/Collaborative Law
Priming and Reframing Mediations BY WILLIAM E. SPARKS
In a world of constant conflict, mediators are often called upon to resolve disputes. In doing so, mediators strive for neutrality and should exert no influence concerning the outcome of any dispute in which they mediate. But does that really happen? Are mediators honestly neutral or do they inadvertently affect the outcome of their mediations by priming and reframing the issues that alter the outcome of a dispute? Mediators have unique problem solving theories and styles which commonly fall into three groups: facilitative, evaluative, and transformative. Each discipline employs a process through which mediators apply skills associated with their school of knowledge as a neutral. For example, facilitative mediators employ a structured process to find a resolution. They ask questions, validate and normalize points of view, search for interests underneath positions, and assist parties to find and analyze options for resolution. They neither make recommendations nor give advice. Instead, the mediator is in charge of the process while the parties control the outcome. On the other hand, evaluative mediators employ a process similar to a settlement conference. They assist the parties in reaching a resolution by pointing out strengths and weaknesses in the dispute. They are concerned with the legal rights of the parties instead of a party’s needs or interests. By
contrast, transformative mediators employ a process by evaluating the interests and needs of the parties and engage in transforming party positions throughout the mediation process. Each of these three mediation styles have a common denominator in that they each rely upon humans as the interactive key to facilitate each style during a mediation. Therefore, underneath it all, mediators are not really neutral. Humans are fallible and each mediator comes to the dispute with cognitive biases, emotions, prejudices and beliefs that may or may not be aligned with the parties. Mediators are charged to act as if they can disregard every situation, issue and emotion yet employ complete neutrality. As different as each mediator is, each engages in learned techniques of psychology and communication, and each either consciously or subconsciously engages in the techniques of priming and reframing during the course of mediation. Priming is employed to refocus attitudes and behavior. Priming occurs when a person is exposed subconsciously to a stimulus that influences perceptions or interpretations of a person or event. Humans can be conditioned to a response or stimuli to behave or act in a certain way. Thus, words or stimuli can be used to precondition a person’s mind through the repetitive use of words or visualizations during mediation. Subliminal messages can trigger the subcontinued on page 16
Each arbitration association (such as AAA and JAMS) has a specific set of rules. These rules are often dramatically different than the Rules of Civil Procedure. Arbitrators believe that advocates who are not fully conversant with the applicable rules miss opportunities.
Prepare for the Management Conference
Typically, the arbitration process will commence with a management conference, which shapes the remainder of the case. Arbitrators comment that parties often are not fully prepared for this conference and recommend that you come to the conference with clear views as to the length of the case, what discovery will be needed, what you expect in terms of motion practice, and any other issues that should be raised. This is the time to polish up your elevator speech about the case and deliver it to the arbitrator who will decide your case. Good first impressions at the management conference help build the credibility of you as the advocate and of your case.
Discovery
Arbitrators recommend that the parties understand and are clear about what discovery they need over the course of the case and make certain that the sched-
uling order allows it. Arbitrators have broad discretion in limiting discovery, so it is imperative that you explain to the arbitrator why you need specific discovery. During the discovery process, advocates should use the arbitrator to short circuit any disputes that may occur since arbitrators are typically more accessible than judges or magistrates. Arbitrators also comment that lawyers often fail to read and follow the scheduling order once it is entered.
Motions
Motion practice is typically not favored and is much more informal in arbitration than in court practice. Arbitrators recommend that you limit motion practice and make certain that you have a clear objective prior to filing.
Pre-Hearing
Arbitrators emphasize that the final hearing is the same as a trial. Therefore, prehearing preparation is crucial. Advocates need to prepare their witnesses, organize exhibits, have a proof plan and know the documents. Since arbitrators are experienced lawyers, they are going to be interested in the elements of your claim or defense and what proof you have to support each element.
Hearing Tips
Because of the informality of the hearing, use of visual and learning aids are favored. Arbitrators appreciate you providing a witness list, a description of a witness’s role in the case, a short summary of his or her testimony, and even a picture of each witness. Chronologies, summaries, and tables are all favored by arbitrators. Arbitrators also favor what they call a “convenience notebook” where you provide the arbitrators a limited notebook containing only the documents that witness will be testifying about.
Professionalism is Persuasive
Arbitrators do not like bickering
Inside 10 Trends in the Use of Online Dispute Resolution 14 Mental Health Awareness Month 18 Negotiation Tips and Techniques at Mediation 23 The Best Darn Bar Association in the Country
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
continued on page 26
2 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2018
Calendar May Events MAY 4-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“Electronic Discovery,” Kirby Drake. (MCLE 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.
MAY 18-BELO Noon
Health Law Section “Everything a Healthcare Lawyer Should Know About the New Tax Law,” Joel Crouch. (MCLE 1.00)*
Pro Bono Activities Committee
DAYL Lunch & Learn CLE
Non-Profit Law Study Group
“Why Judgments Get Reversed,” Jason Steed. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
MAY 11-NORTH DALLAS** Noon
“Mindfulness,” Lisa Blue. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
TUESDAY, MAY 1
Summer Law Intern Program Committee
Corporate Counsel Section “Avoid #MeToo Becoming #YouToo,” Kim Moore and Monica Velazquez. (MCLE 1.00)*
DAYL Freedom Run Committee
Dallas Asian American Bar Association
Saving the Jury Trial “Saving the Jury Trial: Dallas Jury Improvement Luncheon,” Hon. Martin Hoffman, Hon. Sam Lindsay, Hon. Barbara M.G. Lynn, Hon. Craig Smith, and Stephen Susman. (MCLE 1.00)* RSVP to bavina@dallasbar.org.
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
5:15 p.m. LegalLine. Volunteers needed. Contact sbush@ dallasbar.org.
THURSDAY, MAY 17 Noon
Appellate Law Section “Interlocutory Appeals in Texas: a History,” Elizabeth Lee Thompson. (MCLE 1.00)*
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Government Law Section “What is Religious Liberty?” Chelsey Youman. (MCLE 1.00)*
CLE Committee
3:30 p.m. DBA Board of Directors Meeting
WEDNESDAY, MAY 2
Criminal Justice Committee
Publications Committee
FRIDAY, MAY 18
Christian Lawyers Fellowship
Noon
Morris Harrell Professionalism Committee
6:00 p.m. DAYL Board of Directors Meeting
Noon
Employee Benefits & Executive Compensation Law Section “Privacy and Security for Health Care and Business,” Stephen Angelette. (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Public Forum/Media Relations Committee
DAYL Judiciary Committee
St. Thomas More Society
5:30 p.m. Bankruptcy & Commercial Law Section Topic Not Yet Available
THURSDAY, MAY 3 Noon
Construction Law Section “Tweeting Through the Condo Act: Key Issues for Practitioners, Owners, and Developers in BiteSized Pieces,” Curt Covington. (MCLE 1.00)*
Family Law Section Board Meeting
DAYL In-House Committee
DBA/DAYL Moms in Law Lunch At Perry’s Steakhouse & Grille (2000 McKinney Ave). RSVP christine@connatserfamilylaw.com.
FRIDAY, MAY 4
11:45 a.m. Annual Law Day Luncheon Keynote speakers: Representative Pete Sessions and Representative Mark Veasey. To purchase tickets, visit www.dallasbar.org or contact lhayden@dallasbar.org. Noon
Friday Clinic-Belo “Why Judgments Get Reversed,” Jason Steed. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
MONDAY, MAY 7 Noon
Tax Law Section “Recent Developments in Federal Income Taxation,” Prof. Bruce McGovern. (MCLE 1.00)*
TUESDAY, MAY 8 Noon
Immigration Law Section “Immigration Court: Motions Tips and Recent Changes Within the Practice Manual,” Daniel Stewart. (MCLE 1.00)*
Mergers & Acquisitions Section Topic Not Yet Available
Courthouse Committee
Home Project Committee
THURSDAY, MAY 10 Noon
4:45 p.m. Annual Evening Ethics Fest Early registration deadline: April 30. Pricing as of May 1: $95 DBA members/$155 non-member. Register online at www2.dallasbar.org/dbaweb/ eventregistration/EthicsFest.aspx or contact mmejia@dallasbar.org. (Ethics 3.00)* 6:00 p.m. J.L. Turner Legal Association
FRIDAY, MAY 11
8:00 a.m. Conference of the Professions At Texas Scottish Rite Hospital. Register at ww.smu.edu/Provost/Ethics/Events/COP/2018. Noon North Dallas Friday Clinic “Electronic Discovery,” Kirby Drake. (MCLE 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.
Trial Skills Section “Tips for a Trial Lawyer From Abraham Lincoln,” Talmage Boston. (Ethics 1.00)*
SUNDAY, MAY 13
10:30 a.m. Mother’s Day Brunch at Belo. Adults: $39.95, Children 6-12: $13.75. RSVP: culinairesales@dallasbar.org or (214) 220-7404 by May 9.
MONDAY, MAY 14 Noon
Alternative Dispute Resolution Section “The Mediator’s Proposal: And Advanced User’s Guide,” John DeGroote. (MCLE 1.00)*
Business Litigation Section “Connecting with Dallas Juries,” Jason Bloom, Hon. Craig Smith, and Will Snyder. (MCLE 1.00)*
Real Property Law Section “Real Estate Finance,” Joseph Cahoon. (MCLE 1.00)*
Peer Assistance Committee
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Community Involvement Committee
9:00 a.m. Dallas County Criminal Practice Seminar Free seminar at Frank Crowley Courthouse. (MCLE 6.00, Ethics 1.00)* RSVP to vmejia@dallasbar.org. Sponsored by the Criminal Justice Committee
Entertainment Committee
DBF Board of Directors Meeting
Family Law Section “New Partnership Tax Audit and Collection Rules Impact Divorce Property Settlements,” Charles Pullman and Matthew Roberts. (MCLE 1.00)* Bench Bar Conference Committee
Collaborative Law Section “Handling ‘Special’ Clients in Collaborative Cases,” Aimee Pingenot Key. (MCLE 1.00)*
Entertainment, Art & Sports Law Section “New Wine in an Old Bottle: Appropriation Art as Transformative Fair Use,” Michael Heinlen. (MCLE 1.00)*
DVAP New Lawyers Luncheon. RSVP to reedbrownc@lanwt.org.
THURSDAY, MAY 24
Environmental Law Section “Maximizing Your Mediation,” Zay Zeleskey. (MCLE 1.00)*
Dallas LGBT Bar Association
Judiciary Committee
DWLA Board of Directors Meeting
DBA CSF Board Meeting
Friday Clinic-Belo “Mindfulness,” Lisa Blue. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org.
MONDAY, MAY 21
Labor & Employment Law Section “Employment Arbitration Agreements and Class Action Waivers: What’s Next After the Supreme Court Speaks?” Ron Chapman. (MCLE 1.00)*
FRIDAY, MAY 25 Noon
Intellectual Property Law Section “Practice Tips for Raising or Surviving Section 101, 102 and 103 Challenges,” John Koetter and Steve Slater. (MCLE 1.00)*
DAYL Deal Bootcamp Committee
MONDAY, MAY 28
DBA offices closed in observance of Memorial Day
TUESDAY, MAY 29 No DBA Events Scheduled
WEDNESDAY, MAY 30 Noon
DVAP Probate Law CLE “How to Probate a Will,” David Mead. (MCLE 1.00)*
One Love Video Screening. For more information, contact ahernandez@dallasbar.org.
DAYL Assisting Lawyers in Transition Program
DAYL Equal Access to Justice Committee
Municipal Justice Bar Association
Science & Technology Law Section Topic Not Yet Available
Securities Section “The Federalization of Corporate Governance,” Marc Steinberg. (MCLE 1.00)*
THURSDAY, MAY 31
Fireside Chat with Dallas Police Chief Hall Members & Public welcome. (MCLE 1.00)* Sponsored by the DBA Public Forum/Media Relations Committee. RSVP to jsmith@dallasbar.org.
DAYL Membership Committee
2:00 p.m. Law Student Professionalism Program “A Program for Law Students & Recent Law Graduates.” (MCLE 3.00)* RSVP to kzack@ dallasbar.org. Sponsored by Morris Harrell Professionalism Committee.
TUESDAY, MAY 22 Noon
Blockchain Law Study Group Topic Not Yet Available
Probate, Trusts & Estates Law Section “Estate and Gift Tax Update,” Prof. Stanley Johansen. (MCLE 1.00)*
DAYL Lawyers Promoting Diversity
Noon
DAYL CLE Committee
FRIDAY, JUNE 1 Noon
Friday Clinic-Belo “Business Interference & Disparagements Torts,” Ira Bowman. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org.
Summer Associates Pro Bono Luncheon RSVP to vallejod@lanwt.org. (MCLE 1.00)* Sponsored by DVAP and the DBA Pro Bono Activities Committee.
Dallas Minority Attorney Program
TUESDAY, MAY 15
International Law Section “The ICC’s Incoterms: Promoting Clarity in the Language of International Commercial Contracts,” Alyssa Krahmer. (MCLE 1.00)*
Noon
Noon
4:00 p.m. DAYL Swearing In Ceremony
Noon
WEDNESDAY, MAY 9
WEDNESDAY, MAY 23
Criminal Law Section Topic Not Yet Available
9:00 a.m. DVAP Amicus & Ad Litem CLE “Family Law Ad Litem & Amicus Attorney Training.” (MCLE 7.00, Ethics 1.50)* Sponsored by the DBA Family Law Section Pro Bono Committee and DVAP. To register contact vallejod@lanwt.org.
Noon
DBA/DAYL Moms in Law Lunch At Belo. RSVP christine@connatserfamilylaw.com.
Noon
8:30 a.m. 9th Annual Child Welfare Conference (MCLE 7.00, Ethics 3.00)* To register, go to www. dallasbar.org or contact mgarcia@dallasbar. org. Presented by the DBA Juvenile Justice Committee.
Noon
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, MAY 16 Noon
Energy Law Section “Review of Texas Law Impacting Wind Energy Development,” Prof. William Keefer. (MCLE 1.00)*
On April 6, the Dallas Minority Attorney Program presented its annual program, which is designed to meet the unique challenges facing the minority or female attorney practicing in the small firm or as a solo practitioner. Justice Carolyn Wright was presented with the Legacy Award. Shown: (left to right): Justice Wright, Rhonda Hunter and Michele Wong Krause, event organizers.
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.
May 2018â€
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2018
President’s Column
Headnotes
A National Treasure Worth Saving: The Civil Jury Trial BY MICHAEL K. HURST
The rule of law may be the most important benefit of living in this great Country. But the right to trial by jury in civil matters is close behind, and serves as a safeguard to our rights. The Founders of the United States contemplated that our clients’ important disputes were not to be decided by kings. In fact, in 1789, James Madison said: “Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” Now, so few civil cases go to trial that lawyers in “trial sections” of firms make partner or even section head without ever having tried a jury trial. Statistically, according to Richard Jolly with the Civil Jury Project—a program championed by renowned trial lawyer Steve Susman—juries today determine fewer cases than at any other point in the nation’s history. For instance, in 1962, the year when most federal judicial statistics became available, federal juries decided 5.5 percent of civil cases, whereas today that number hovers around 0.76 percent. Most state courts have experienced a similar decline. Why do civil jury trials matter, and why should we care? As Jolly points out: “Juries allow lay citizens to check judges’ work for corruption, state aggrandizement, and application of grounded normative standards. Moreover, jury service offers one of the few opportunities for citizens to be directly involved in the administration of law. As Alexander de Tocqueville described, it is ‘a free school’ that ‘instill[s] some of the habits of the judicial mind into every citizen.’ Perhaps unsurprisingly then, trial by jury is the only right to appear by name in all three of the nation’s founding documents: the Declaration of Independence, the Constitution, and the Bill of Rights.” What can we do? Not to be a downer, but saving the civil jury will be difficult. The future of the civil jury trial may depend upon trial and appellate courts constricting their reading of the Arbitration Acts, the summary judgment standards and recent Texas rules TCRP 91a and TCPA. The Civil Jury Project has taken a different approach. It is trying to bring attention to the decline and develop innovative strategies to make jury trials a preferable mode of dispute resolution. This means adopting techniques that make jury trials cheaper, quicker, and more accurate. The Dallas Bar Association, in partnership with the Dallas Chapter of the American Board of Trial Advocates, the Dallas Trial Lawyers Association, and the Texas Association of Defense Counsel, is doing what it can to tackle this disturbing trend. To address the vanishing civil jury trial, Judge Martin Hoffman and Aaron Tobin have led our creation of 4 modules. The first module was held on March 23, when Judge Jim Jordan provided an anecdotal history of the civil jury system, followed by Shonn Brown and Judge Ken Molberg speaking to the continuing threats to the civil jury trial and what is going to happen if the trend is not reversed. In the words of Judge Molberg: “The right to trial by jury has a constitutional
identity. And the trial lawyer is essential to its promise. Over the last few decades we have seen a piecemeal destruction of this right. And with that has come an attenuation of the trial bar.” On May 1, for Module 2, during juror appreciation week, the DBA will again host the juror appreciation program with Mr. Jolly and Steve Susman. Judges Hoffman, Barbara M.G. Lynn, Craig Smith, and Sam Lindsay will participate. Each judge has invited jurors who served in their courts to participate. The module will focus on how to improve the jury process. A client will even provide remarks about how thankful she is to have had her day in court. Judge Bonnie Goldstein, Presiding Judge of the George Allen Central Jury Room, continues to help in this effort, along with Judge Dominique Collins and Lori Ann Bodino, by ensuring that jurors are greeted, served breakfast, and shown the renovations to the central jury room. Module 3, which will be held in September 2018 with a panel of trial lawyers, along with federal and state judges moderated by Judge Hoffman. The panel will address innovations to improve, and perhaps save, the civil jury system. Module 4 in November 2018 will showcase a debate about why the modern civil jury trial should or should not be preserved. Now, when this trend hopefully reverses, and young “trial lawyers” have opportunities to try jury trials, how will they be prepared? Inspired by Judge Reed O’Connor, and with prodigious efforts from DAYL President Jennifer Ryback and Executive Director Cherie Harris, the DBA and DAYL have created The Second Chair Program, where young civil litigators get opportunities to try jury trials with seasoned criminal defense lawyers. In the first month of the Program, five young civil litigators had the opportunity to sit second chair with seasoned criminal defense lawyers. John Gioffredi took Zirwa Sheikh to a DWI trial in late February. Zirwa said “I learned more in two days than I could have ever imagined. John made the experience so easy to follow and was really committed to helping me understand everything. I intend to participate again because what I have heard is so valuable.” John said “Zirwa and I both benefitted from this experience.” Russell Wilson took Matt Jaynes to a capital murder trial. Matt said, “Watching the development of voir dire, and the opening statements, having talked to Russell beforehand about the trial strategy and watching those phases weave together has been a tremendous learning experience.” The civil jury trial is indeed a national treasure. Our profession, our clients, and our society need this right as a check and balance so that disputes are decided in the most just way possible—as contemplated by our Founders. Writing and presenting modules about saving the civil jury trial is not going to cause arbitration, summary judgment standards, and escalating billable hour rates to suddenly reverse course, but, as lawyers and as leaders, we can perpetuate the discussion before it is too late. I look forward to visiting with you. Michael
Dallas Bar Association’s Saving the Jury Trial
Dallas Jury Improvement Luncheon Tuesday, May 1st | Noon | Belo Mansion | MCLE: 1.00 Speakers Include:
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: Michael K. Hurst President-Elect: Laura Benitez Geisler First Vice President: Robert L. Tobey Second Vice President: Aaron Z. Tobin Secretary-Treasurer: Vicki D. Blanton Immediate Past President: Rob D. Crain Directors: A. Shonn Brown (Vice Chair), Jonathan Childers, Chalon Clark, Stephanie Culpepper, Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Foster, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Krisi Kastl, Dan Kelly, Shruti Krishnan (President, Dallas Asian American Bar Association), Bill Mateja, Karen McCloud (Chair), Kate Morris, Cheryl Camin Murray, Stephanie Osteen (President, Dallas Women Lawyers Association), Hon. Irma Ramirez, Jennifer Ryback (President, Dallas Association of Young Lawyers), Mary Scott, and Victor D. Vital Advisory Directors: Charles Gearing (President-Elect, Dallas Association of Young Lawyers), Erin Nowell (President-Elect, J.L. Turner Legal Association), Javier Perez (President-Elect, Dallas Hispanic Bar Association), Sarah Rogers (PresidentElect, Dallas Women Lawyers Association), and Jason Shyung (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, David Kent, Gregory Sampson, Scott Stolley, and Brad Weber 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: Alexander Farr and Carl Roberts Vice-Chairs: Andy Jones 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 Deets, James Dockery, Elisaveta (Leiza) Dolghih, Angela Downes, Sheena Duke, Charles Dunklin, 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, Andrew Jones, 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: Marcela Mejia, Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Director of Legal Education: 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 Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2018. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.
Hon. Martin Hoffman 68th District Court
Hon. Sam Lindsay U.S. District Court
Hon. Barbara M.G. Lynn U.S. District Court
Hon. Craig Smith 192nd District Court
RSVP to bavina@dallasbar.org
Stephen D. Susman Susman Godfrey LLP
Save the Date: Saving the Jury Trial, Module 3, which will be held in September 2018 with a panel of trial lawyers, along with federal and state judges.
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.
May 2018â€
D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Karen Gren Scholer Confirmed as Federal Judge can to serve as a federal district court judge in Texas, or any of the courts encomOn March 5, the Senate confirmed passed by the U.S. Court of Appeals for Karen Gren Scholer to serve as a fed- the Fifth Circuit, which includes Texas, eral judge for the Northern District of Louisiana, and Mississippi. Texas. A former President Obama nomiPrior to being appointed judge, she nee, President Donald Trump was a principal and co-mannominated Mrs. Scholer in aging partner at Carter SchoSeptember, the Senate Judiler, PLLC. A previous state ciary Committee approved district judge on the 95th the nomination in OctoJudicial District Court in Dalber, and upon the Senate’s las for eight years, she also 95-0 confirmation her term served as the presiding judge became effective immediately. for Dallas County Civil Dis“Karen’s extensive expetrict Court Judges. She was rience in the courtroom and also briefly appointed by Govcommitment to serving her ernor Rick Perry to serve on community will help make Hon. Karen Gren Scholer the Tenth Circuit Court of her an excellent federal judge,” Appeals of Texas for a single said Texas Senator John Cornyn in a case. Prior to becoming a state judge, recent Dallas Morning News article. “I’m Mrs. Scholer was a partner at the firms proud to vote for her confirmation and of Jones Day, Andrews & Kurth LLP, and am pleased that the Senate has acted to Strasburger & Price LLP. confirm such a well-qualified individual Mrs. Scholer earned her law degree who I know will continue to serve North from Cornell University Law School Texans well.” and her undergraduate degree from Rice Mrs. Scholer is the first Asian Ameri- University. HN STAFF REPORT
Dallas Bar Association’s Fireside Chat with Dallas Police Chief U. Renee Hall Monday, May 21, 2018 Noon - 1:00 p.m. at Belo Mansion MCLE: 1 Hour RSVP: jsmith@dallasbar.org Sponsored by the DBA Public Forum/Media Relations Committee
YOUR NEIGHBORHOOD REAL ESTATE EXPERT As a former BigLaw associate, I know you have a lot on your plate. So whether you are looking to buy a home or sell your current one, let me handle the process for you.
May 2018
Column
Ethics
Collaborative Law: Some Ethical Issues BY FRANK BROYLES
Collaborative law is a rapidly developing ADR process with a good track record, especially in family law matters. Its distinguishing characteristic is the attorneys’ restricted roles. Collaborative law attorneys are engaged by the disputing parties to act only as settlement counsel. If settlement is not achieved and litigation ensues (or continues if a collaborative law ADR effort has interrupted the litigation process) the collaborative law attorneys are statutorily, ethically and contractually prohibited from continuing as litigation counsel for any party to the litigation; they must withdraw from representation if and when the collaborative law effort has failed. In re Mabray, 355 S.W.3d 16, 24 (Tex. App – Houston [1st Dist] 2010)(en banc). The featured benefit of collaborative law is better preservation of relationships and reputations of the disputing parties, an especially worthwhile objective in the family law context. Historically, Texas has been a collaborative law leader. In 2007 it became the first state to enact a collaborative law statute. (See Tex. Fam. Code Ann. §15.101 et seq.). Currently both the Texas Bar Association and the Dallas Bar Association have active collaborative law sections. In its infancy, collaborative law faced ethical challenges. In 2007 the Colorado Bar Association published its Formal Ethics Opinion 115, Ethical Considerations in the Collaborative and Cooperative Law Contexts, an opinion in which the CBA concluded that collaborative law agreements were per se unethical. The American Bar Association promptly responded with its Formal Ethics Opinion 07-447 (Ethical Considerations in Collaborative Law Practice) where the ABA concluded that properly drafted collaborative law agreements did not run afoul of any ethical restrictions. The tension between these two organizations focused on what was called the “Four Way Agreement” where collaborative law attorneys were contracting with the opposing party with respect to the obligation to withdraw. The ethics concerns raised by the Colorado Bar Association have been addressed. For example, the Florida Supreme Court recently approved comprehensive ethical and procedural rules concerning collaborative law, specifically Rule 4-1.19, Collaborative Law Process in Family Law and Family Law Procedural Rule 12.745, Collaborative Law Process. Florida’s focus is on adequate disclosure to clients and ensuring that those clients understand the potential for significant negative impact if the collaborative law effort fails and the clients have to employ new attorneys and “start over.” A collaborative law ethics issue may now arise from duties owed to a client
with respect to the clients’ objectives. Texas Disciplinary Rule 1.02(a)(1) states, subject to exceptions not relevant here, “a lawyer shall abide by a client’s decisions concerning the objectives and general methods of representation.” Comment 1 to D.R. 1.03 includes the guidance that, “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so.” Comment 2 contains the statement that, “The guiding principle is that the lawyer should reasonably fulfill client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.” D.R. 102 and 103 require considered determination and monitoring of the client’s objectives. In a social media environment with its increased emphasis on reputation value, prevailing in litigation following an expensive, time consuming, and counterproductive adversarial process may thwart, not achieve, the client’s objectives. The attorney must also recognize client objectives often change during the course of the dispute resolution process. Unless these objectives are illegal, unrealistic, or otherwise impermissible, the attorney should strive initially and periodically to define and understand those objectives and then reasonably assist the client in achieving them. It is permissible, even advisable, for an attorney to provide guidance to the client regarding identification or redirection of objectives. That said, however, a significant ethical challenge for lawyers specializing in collaborative law, or in any other dispute resolution method, is avoiding the “Law of the Hammer.” That law, which is a recognition of our tendency to over-rely on a familiar tool, is often attributed to Abraham Maslow when, in the 1960s, he wrote, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” In summary, collaborative law is a proven tool for resolving many types of disputes, especially where the client’s primary objectives include preservation of relationships and reputation. Appropriate use of any ADR method, including collaborative law, requires the attorney to understand, and help the client understand objectives. This is a continuing obligation throughout the dispute resolution process. Consequently, the attorney should periodically reassess client objectives and priorities and then help the client implement the best procedure for implementing those objectives. HN Frank Broyles is a member of the DBA’s Legal Ethics Committee and he can be reached at frank.broyles@utexas.edu.
6226 Llano Avenue
SOLD
Let me be your guide home.
214.263.1829 albany@daveperrymiller.com
A multi-office national law firm is seeking attorneys for its Dallas office. Due to our continued growth, our Litigation department is looking for attorneys in the following areas: Professional Liability Defense, General Liability, Workers Compensation Defense, Construction, and Employment Liability Defense. Corporate Law, Commercial Litigation and Financial Services departments are looking for attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus.
May 2018â€
D al l as Bar A ssoci ati on l Headnotes 7
After 16 wonderful years together at Clouse Dunn, breaking up is hard to do . . .
But look out, here comes double trouble . . .
Rogge Dunn (left) and Keith Clouse (right) are launching their own firms with the formation of the Rogge Dunn Group PC and Clouse Brown PLLC.
1201 Elm St Suite 5200 Dallas, Texas 75270 214-888-5000 www.roggedunngroup.com
1201 Elm St Suite 5250 Dallas, Texas 75270 214-698-5100 www.clousebrown.com
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Column
May 2018
State Bar of Texas President
Use All the Tools in Your Tool Belt BY TOM VICK
May is Mental Health Awareness Month and every Texas lawyer should seek out the resources offered by the Texas Lawyers’ Assistance Program (TLAP). If you bristled at that sentence, bear with me. The groundbreaking 2016 American Bar Association Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation study on substance use and mental health issues in the profession showed us that 21 percent of attorneys suffer from problematic drinking, 28 percent suffer from depression, and 19 percent suffer from clinical anxiety. Those are staggering figures. They lay bare serious realities within our profession. Efforts to tackle these problems are multi-pronged, and they need to begin with all of us before substance abuse or mental health crises emerge in our lives. Lawyers assistance programs across the nation have increasingly turned their focus to prevention and overall wellness. The mission is to give lawyers, judges, and
law students tools they can use that could avert such disastrous outcomes. Simply put, everyone can benefit from the wealth of knowledge and assistance offered by the Texas Lawyers’ Assistance Program and its website, TLAPhelps.org. If you think you or your colleagues don’t need assistance, well, let’s start right there Tom Vick because TLAP is a powerful tool belt full of knowledge that can help lawyers restore and maintain wellness in order to have hope-filled and happy work and home lives. Currently, approximately half of all assistance provided by TLAP is directed toward attorneys suffering from anxiety, depression, or burnout. TLAP’s most recent mission is to teach lawyers about resilience—the ability to bounce back from adversity or recover during a difficult time. Chris Ritter, a TLAP staff attorney, recently published the very well-
9th Annual Child Welfare Conference
researched “Tips to Lawyer Resilience: Five EvidenceBased Strategies.” In it Ritter lays out the problems that burnout, anxiety, and depression create in our profession and offers the best life strategies lawyers can employ to combat these creeping maladies. The five evidence-based strategies Ritter recommends to boost resilience and avoid burnout are: Practice gratitude. Research shows regularly taking time to make a list of things for which you are grateful can result in a significant improvement in the way you feel and the amount of happiness you experience. Practice mindfulness. The TLAP website’s wellness page at TLAPhelps. org/wellness features articles and podcasts on mindfulness and meditation for you to learn more about this topic. Help others. Evidence suggests service work can offset the effects of stress that lawyers face. Practice self-compassion. Self-compassion is showing yourself the kindness
that you would offer a good friend during hardship. Develop a sense of humor. Seek out humorous readings or fun and silly experiences. Laughter helps with stress and developing our coping mechanisms and gives us perspective on our world. To read Ritter’s full paper, go to tlaphelps.org/wellness. TLAP is available around the clock at 1-800-343-TLAP (8527) for direct, confidential, peer support from trained staff attorneys. TLAP can provide referrals to lawyer-friendly support groups, experienced therapists, medical professionals, and treatment centers. TLAPhelps.org also has a wealth of self-help information in the form of articles, podcasts, and videos. Taking care of our wellbeing is part of our professional responsibility. Our mental, emotional, and physical state affects how we are able to fulfill our duties to our clients, the courts, and our profession. Take care of yourselves, my friends, and do so by using all of the tools in your belt. HN Tom Vick, a partner in Vick Carney LLP in Weatherford, is the 2017-2018 president of the State Bar of Texas.
Tom Leatherbury Receives Fellows Justinian Award
Friday, May 18, 8:00 a.m. to 4:30 p.m. at Belo
MCLE 7.00 (Ethics 3.00) For rates and registration information, log on to www.dallasbar.org. Presented by the DBA Juvenile Justice Committee
In March, the Dallas Bar Foundation presented Thomas Leatherbury (right), of Vinson & Elkins LLP, with the Fellows Justinian Award. Mr. Leatherbury is pictured with Harry Reasoner, also of Vinson & Elkins. (left).
State of the State Bar Wednesday, June 6, 2018 Noon - 1:00 p.m. | Belo Mansion
Trey Apffel, Executive Director State Bar of Texas
Tom Vick, President State Bar of Texas
MCLE: 1 Hour
May 2018â€
D al l as Bar A ssoci ati on l Headnotes 9
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
May 2018
ADR/Collaborative Law
Trends in the Use of Online Dispute Resolution BY SHARON CORSENTINO
The world seems to be getting smaller and more interconnected every day. Society is far more mobile and faster-paced than in the past. As technology advances, it is very common to be transacting business with someone in another part of the world. A recent article in the Law Gazette in the United Kingdom estimates that three trillion contracts are created globally per year. Naturally, as the frequency of these transactions grows, so does the opportunity for legal disputes. Fortunately, the vast majority of the worldwide population has access to the internet and mobile phones, which opens up possibilities for resolving disputes remotely from an opposing party. With the rapid pace of technological advancement, integration of technology into the legal system is pervasive. In fact, in 2012 the American Bar Association Model Rules of Professional Conduct Rule 1.1, comment [8] (regarding competence of attorneys) was amended
to add a section expressly mentioning technology: “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” (emphasis added). Using technology to facilitate dispute resolution has been developing for over 20 years and continues to evolve. At present, there are no uniform standards for conducting online dispute resolution (ODR), although assorted suggested approaches can be found on the internet. In addition to the lack of standards for ODR, there is not even a uniform definition for the term. As ODR is interpreted broadly, another, perhaps more fitting term is “technology-integrated dispute resolution”. It includes, among other things, everything from the use of laptops and tablets instead of notepads, online calendaring for scheduling mediations and arbitrations, data management and document exchange, emails exchanged between the parties and the neutral, Skype and videoconferencing, and Docusign.
Wednesday, May 30, Noon‐1:00 p.m. at Belo RSVP ahernandez@dallasbar.org
Everyone deserves a healthy rela�onship. www.joinonelove.org
One of the main trends in ODR is advancing technology for improving access to justice for parties. In England and Wales, practitioners are experimenting with online court for cases falling below a certain amount in controversy. The Supreme People’s Court in China has also recently launched an online mediation platform to increase efficiency for resolving disputes, which includes a mobile app for users. In the United States, Modria, which purchased Tyler Technologies (which administers the Odyssey system for Texas’ online court filings) has created an ODR system for the courts. The plan is similar to the one in the UK to funnel certain cases into an online dispute resolution system to attempt to filter out some of the cases with minimal human interaction. Modria also created dispute resolution systems for eBay and PayPal. These systems handle over 60 million disputes annually and process 90 percent of their disputes without any human intervention. Most recently, attorney Laura Wasser made headlines with her introduction of the “It’s Over Easy” website for online dispute resolution of divorces. The site has tools for parties to utilize to try to resolve their divorce on their own. If the parties hit an obstacle on the path to settlement, there are varying levels of services available, including an option to Facetime or live chat with a mediator. This specific program may evolve to offer solutions for resolving other types of legal disputes in the future. Another trend in ODR is data mining information to assist in negotia-
tion. A site called “Picture It Settled” collects information regarding thousands of cases to predict outcomes in future cases. The site claims that it could take a negotiation or mediation that might ordinarily involve 17 exchanges of offers and counterproposals and predict the final outcome or settlement range in just two rounds. By predicting the outcome of the case based on data from other similar cases, efficiency and, arguably, client satisfaction is increased. The company even has an application for phones where an attorney can update the case data to get revised outcomes during the negotiation process. Surprisingly, Alexa on Amazon even has a “My Mediator” tool created by a mediator in California that gives details about resolving disputes under California law through mediation and the ability to communicate with him directly. Another mediator reported using Alexa for scheduling, GPS, and playing music and white noise for clients during mediation sessions. While ODR is trending upward with increasingly more advanced technology, all ODR platforms ultimately rely on reasonable human beings to resolve their disputes. It is doubtful that computers and algorithms are going to supplant the traditional court system anytime soon, but they certainly are adding more tools to the toolbox for access to justice initiatives. HN Sharon Corsentino is an attorney and full-time mediator at Sharon Corsentino Mediations, PLLC. She can be reached at mediations@sharoncorsentino.com.
May 2018
D al l as Bar A ssoci ati on l Headnotes 11
We’re ready to collaborate and prepared to litigate.
Partners left to right: Carla M. Calabrese, Dawn Ryan Budner
At Calabrese Budner, our mission is to elevate the client’s experience and
Best Law Firms in America, U.S. News – Best Lawyers®,
outcome by utilizing the highest achievable process in every matter. We view
Woodward/White, Inc. 2010–2017
collaborative divorce as the gold standard for divorcing with dignity. When your spouse has other ideas, Calabrese Budner brings the same sophistication and passion to represent your interests in the courtroom. Whether collaboration or litigation, Calabrese Budner puts you first because we believe Family Matters™ .
Carla Calabrese Best Lawyers in Dallas, D Magazine 2003, 2007, 2008, 2010-2012, 2014-2018 Collaborative Divorce Texas, Master Credentialed
For more information or to schedule a consultation, contact us today at
Dawn Budner
info@calabresebudner.com or 214.939.3000.
American Institute of Family Law Attorneys, 10 Best in Client Satisfaction 2017
Please visit the website to listen to our podcasts — Dallas Divorce Talk.
AV Preeminent Rating by Martindale-Hubbell® 2008–2017
PARK CITIES | DALLAS | COLLIN | TARRANT | DENTON
12 He a d n o t e s l D a l l a s B a r A s s ociation
May 2018
Copyright Infringement Pre-Litigation Checklist BY THOMAS MADDREY
When a client comes to you with a possible copyright infringement, what do you as the attorney need to consider before taking on the client or filing suit? This article will discuss registration, publication, demand or cease and desist letters, and other pre-litigation considerations that should be in your mind.
Ensure the Client Has Standing to Sue
In most cases, only the creator has exclusive standing to sue, unless he has transferred ownership, or the work was created under a “work-for-hire” agreement. Co-authors of joint works each have standing to sue independently. Transferees of the copyright have standing (as of the time of the transfer only, unless there was an assignment of previous causes of action). However, nonexclusive licensees do not have standing.
Investigate All Information
• Determine that the work is eligible for copyright protection. This is the first element of a copyright infringement claim. This means an original work of authorship, fixed in a tangible medium of expression,
within the time-period of protection. • Determine whether the work has been “published.” This will be important, in conjunction with the registration date, in evaluating statutory damages and attorneys’ fees. • Determine whether the work has been registered with the Copyright Office. While this is not required to have a valid copyright, the work must be registered, or an application for registration be pending, prior to filing suit. The 5th Circuit requires merely an application be pending. Registration is prima facie evidence of a valid copyright if made before the first publication of the work, or within five years thereafter. • Determine when the alleged infringement occurred, and when the client first discovered the infringement. This information will help in the damage calculations. • Determine whether there are coauthors. Co-authors of a joint work must account to one another, which includes sharing any damage awards. • Determine if there are other licenses surrounding the work-at-issue. The signing of a Creative Commons license makes the work freely available to the public.
Consider the Jurisdiction
Venue is proper in any district in which the defendant or its agent resides or may
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
be found. Where to file your suit also will determine how your damages argument will be framed.
Establish an Infringement
Plaintiff must prove: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original. Copying may be shown where the accused infringer had (a) access to the copyrighted work, and (b) there are substantial similarities between the copyrighted work and the accused work. • Do the claims fall within the Statute of Limitations? A cause of action must be filed within three years after the claim accrued (or those acts that occurred within the three years prior to filing lawsuit if the acts are continuing). Nine of the Circuit Courts have held that claims accrue upon actual or constructive discovery of infringement by the author (“discovery rule”). The minority view allows the statute of limitations to begin when the infringement actually occurred (“injury rule”). The 5th Circuit has yet to definitively rule on which claim accrual standard applies.
Consider Potential Defenses
• Evaluate the defense of fair use. Consider the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the copying; and the effect of the use upon the potential market for, or value of, the copyrighted work. • Does the defendant fall within the DMCA safe-harbor provision? Search the DMCA database for the defendant(s) claiming eligibility. • Will the suit be filed within the limitations period for both the cause of action and statutory damages?
Consider All Possible Damages
• Can you get statutory damages? The author must have registered the copyright before, or within three months after the first publication in order to receive statutory damages. • Actual damages? Profits the client might have accrued but for the defendant’s infringement. • Attorneys’ fees? As with statutory damages, the author must have registered the copyright before or within three months after the first publication to be eligible for attorneys’ fees. • Was the infringement willful? Ignoring a cease and desist letter, or intentional removal of copyright management information are factors in determining willfulness.
Evaluate Settlement Options
• Is there a viable defendant? Often, entities are the infringers. Doing a background check to ensure the company has no pending lawsuits, no current liens, or is not headed or in bankruptcy will ensure your client is properly compensated. • Send a demand or a cease and desist letter. Attempting to settle avoids the expense of litigation and increases the chances of being awarded attorneys’ fees and willful infringement statutory damages should the infringement continue. However, the letter may trigger a declaratory judgment action that may deprive the copyright owner of the ability to select the forum, and ultimately lead to litigation. This is by no means a complete analysis of all of the issues, however, keeping these few items in mind will help you determine whether to take on that client seeking copyright advice. HN
Thomas Maddrey is the founding partner and lead attorney at Maddrey PLLC. He can be reached at tbm@maddreypllc.com.
DVAP’s Finest JENNIFER KUKLA
Jennifer Kukla is Of Counsel in Real Estate and Finance at Winstead PC. 1. How did you first get involved in pro bono? I first got involved when I was a summer clerk at a large firm in Dallas. They took us on several different occasions to volunteer at intake clinics and it was a great way to see how those work and be introduced to pro bono work. 2. Describe your most compelling pro bono case. My most compelling case was a guardianship involving two minors. The paternal grandmother was raising the two children because the father, her son, had been killed in a car accident and the mother was in prison. She was seeking to be appointed as their legal guardian so that she could enroll them in school, make medical decisions and all other things related to being a parent. The father had not been listed on either birth certificate however, and because he was deceased paternity could not be established and the grandmother was having even more difficulty as a result. The birth mother answered the petition from prison and was then released during the course of the case. It lasted over a year and a half from start to finish but in the end the grandmother was successfully named as their guardian and they remained in her home to be raised by her. 3. Why do you do pro bono? To be able to invest time to assist community members who may desperately need help but don’t have the resources to obtain that help is a great feeling. I think we are very fortunate as lawyers and are among the few who can make the legal system work for people who wouldn’t otherwise have a way. 4. What impact has pro bono service had on your career? Participating in pro bono work has given me such a great sense of accomplishment and fulfillment, and also taught me more about the community in which we live and what an important role we can play if we are willing to donate our time. I have also formed close relationships with attorneys and paralegals at my firm as we work on cases together. 5. What is the most unexpected benefit you have received from doing pro bono? The most unexpected and appreciated benefit has been the ability to connect with people from different backgrounds and with different interests whom you may not otherwise meet. Hearing their stories and then often staying in touch with them is amazing. The touching expressions of gratitude you receive are an additional benefit as well.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
May 2018â€
D al l as Bar A ssoci ati on l Headnotes 13
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2018
MENTAL HEALTH AWARENESS
Take A Stand BY TERRY BENTLEY HILL
Palm Sunday, 1995, 10:35 p.m.
In my front yard, the news crews with their live trucks interrupted regular programming to report that the 47th District Attorney had taken his life in the home where his four daughters slept. Years of struggling with alcoholism and depression overwhelmed his higher thoughts, his reasonable thoughts, his clear thoughts and led him into the black hole of hopelessness and anger that fueled his horrible decision to walk into our bedroom with a gun to end his suffering and pain. In his suicide note(s) he wrote that I would be better off without him and that I would find a better father for our children.
Portrait of a Super Lawyer
Danny Hill’s 1973 Texas Tech Law School class could be considered the breeding ground for elected District Attorneys. In the Panhandle, alone, four alumni held the position of top prosecutor. By the time Danny ran for 47th District Attorney he had served two terms in the Texas House of Representatives for the 86th District. At 34-years-of-age he was the youngest DA in the state. Whip smart and charismatic he demanded a lot of himself. He tried many cases and the juries never returned the two-word verdict. Innovative, he created the Special Crimes Unit, which investigates serious criminal offenses, and began the Victim Assistance Program, which a majority of Texas DA’s offices implemented. And, nine months before he died, he was named Prosecutor of the Year in Texas.
The Deadly Shadow of Shame
Danny took his first drink of alcohol his senior year in high school, and it was that drink, not the last drink, that killed him. Alcoholism is a progressive disease. Untreated, it can be a fatal disease. It is cunning, baffling, and powerful. It interferes with relationships, vocations, and hopes and dreams. It destroys the drinker; it destroys the family. Everybody gets sick. Couple the alcoholism with depression and
the combination is deadly. No one really knows the secrets that lurk behind closed doors, but the secrets kept us sick. Shame kept us isolated and silent. Friends and family were never confided in or consulted. The repulsive notion of public exposure, scorn, and judgment kept Danny on a run-away train of substance abuse with the cliff of destruction looming closer and closer. Car accidents, chaos, violence, marital discord, and a removal suit created a perfect storm of deadly justification in the broken brain of my children’s father: death over life.
Implosion
When a person dies by suicide, statistics show at least 18 people are directly affected. Suicide is the most complicated death to grieve. Often times the last words spoken are not ones of love and affection and the survivors are left reeling with the burden of responsibility and self-blame. Ten days after Danny died, I walked into my bathroom, looked at myself in the mirror, and did not recognize the person staring at me. I glanced over at the TV as special news report from Oklahoma City showed a collapsed building billowing in smoke surrounded by emergency vehicles, and when I glanced back at myself, I realized that building represented my life. Part of me died with Danny that night; I had so many questions, so many whys, but none that he could answer, and because of the public nature of Danny’s death, I had nowhere to hide.
The Texas Lawyers Assistance Program
In 1998, the PBS station in the Panhandle produced an Edward R. Murrow Award winning documentary called Danny Hill: Public Imagine/Private Pain. In it, I spoke of our life and battle with addiction. The denial, the failed attempts to hide and control the illness, the fear that if we sought help that Danny’s legal and political career would suffer. The Texas District and County Attorneys Association asked me to present the video and tell my story at its annual conference. The Association leadership bravely faced the undeniable fact that the stressors of the legal profession were taking a
Top 10 List of Recovery Truisms 1. GRATITUDE: A daily gratitude list of the things for which we are grateful keeps our minds focused on what we have, and not on what we don’t have. 2. KINDESS: Like most antidepressants, kindness stimulates the production of Serotonin, the chemical that heals wounds, calms and makes one happy. 3. GRIEF: You never get over it; you just get better. 4. HOPE: There is no situation too great to be bettered and no unhappiness too great to be lessened. 5. FIRST THINGS FIRST: Do the next right thing. 6. PERSPECTIVE: There is an island of opportunity in the middle of every difficulty. 7. OPENNESS: Our secrets keep us sick. 8. AWARENESS: Keep your head where your feet are. 9. HEALING: Being a little kinder, a little slower to anger, a little more loving makes life better, day-by-day. 10. FAITH: A spiritual connection determines how well many deal with life.
TLAP SERVICES
l Confidential Services l 24-hour hotline and crisis counseling l Peer contact and support l Referral to resources including lawyer support groups
l Confidentiality and immunity protections under Texas Health and Safety Code, Chapter 467 l Consultation and compliance services relating to TDRPC, Rule 803 “Reporting Professional Misconduct” l Custom CLE program l Stress management education
toll on its members. When I presented, the room was packed with elected and assistant District Attorneys, many of whom knew Danny when he served as President. They heard from me, and they also heard from an Austin attorney and the Chief Justice of the 13th Court of Appeals who told their stories of recovery. They were volunteers with the Texas Lawyers Assistance Program (TLAP). As I listened to their brutally honest stories, I wished that Danny could have heard them. Maybe they would have given him the courage to face his issues, after all, they were highly successful and not ashamed of their struggles.
and stress more than any other professionals. Substance and alcohol abuse is alarming especially for young attorneys in their first 10 years of practice. And, suicides and suicidal ideation are on the rise. It is the fear of exposure, the inability to pierce the veil of silence, a culture of perfectionism, the threat of economic consequences that drive our colleagues to tops of buildings and away from help.
Collateral Damage
At the age of 47, I accomplished a long-term goal, I entered law school. The desire to practice law began while covering the courthouse as a news reporter 25 years earlier. Two weeks into classes, on a Wednesday evening, my phone rang and with it came news that shattered my heart…I lost my 14-year-old daughter to depression. I withdrew from school and went to therapy twice-a-week for nine months, I took medication to boost depleted Serotonin and Dopamine and I joined support groups. In July of that year, I had to decide whether to reenroll in school and resume my legal education. Grief shattered my confidence. It affected concentration, retention and focus. Sharing my fears during a therapy session, my counselor’s words changed my life. She said, I’m not in the business of telling my clients/patients what to do, but I am telling you—you are going to law school. You are going to take it one semester at a time and in three years when you walk across the stage and receive your hood and diploma you will know there is nothing you cannot accomplish. Three years later, when I walked across the stage, the loudest cheers came from my three daughters.
Purpose for the Suffering
After receiving my bar results, the first call I made was to TLAP; remembering those two brave attorneys I met years before inspired me to volunteer. I have learned that Danny’s story is not unique. Attorneys experience depression, anxiety,
The Solution
Mental illness and substance abuse are treatable conditions. Help is available to any Texas attorney through the Texas Lawyers Assistance Program, Lawyers Concerned for Lawyers, and the Confidential Depressive Group for Attorneys. Studies show that the most effective recovery from mental illness and addiction is like a threelegged stool. Each leg is dependent on the other: Medicine, Cognitive Therapy, and Peer Support. When you do not know where to turn, or if you know a colleague who is struggling, the 9-1-1 number for attorneys is 1-800-343-TLAP (8527). HN
Terry Bentley Hill is a Dallas attorney with a criminal defense practice. She is Chair of the DBA Peer Assistance Committee. She is married to attorney Tom Krampitz and is the mother of four daughters: Cadie (Florida), Lizzie (New York), Bentley (Austin), and Hallie (Heaven).
Facts About The Legal Profession’s Mental Condition l Depression is the highest of all professionals l Attorneys are three times more likely to suffer from depression than other professions l Attorneys are two times more likely to die by suicide l 11% of attorneys contemplate suicide monthly l The rate of death by suicide for lawyers is two to six times that of the general population l Suicide is the 3rd leading cause of death after cancer and heart disease l Studies show that 46% of attorneys report suffering from depression during their careers l 18 people are directly affected by one person’s suicide l 36% of attorneys meet the criteria for substance use disorder l Substance abuse increases the odds of suicide by six times Source: ABA and Betty Ford Hazelden Foundation 2016 Report
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
May 2018
D al l as Bar A ssoci ati on l Headnotes 15 MENTAL HEALTH AWARENESS
“While there are many worthwhile Committees and Sections at the DBA that you can (and should) get actively involved with, the Peer Assistance Committee is the only one where you can actually do something that could save a fellow attorney’s career, family…. or even their life.”
Resources TLAP: Confidential. Respectful. Voluntary (Health & Safety
—Joseph J. Wielebinski
Dallas Bar Association Peer Assistance Committee Where: 2101 Ross Avenue, Dallas Texas 75201 When: Committee Meetings the 2nd Monday of the month. Phone: 214.220.7400
“In any field, it can be lifesaving for the professional who is suffering to know that someone else has survived and can guide the way out.” —Peer Assistance Committee Member
Code §457) Phone: 1.800.343.8527
Lawyers Concerned For Lawyers – Dallas Chapter Where: First United Methodist Church. 1925 San Jacinto When: Thursdays 12 pm – 1 pm Lawyers Concerned For Lawyers – North Dallas/Plano Chapter Where: Meridian Business Center Boardroom, 555 Republic Dr. Suite 200, Plano, Texas When: Tuesdays 12 pm – 1pm
Professional Responsibility—Duty to Report 8.03(c) Reporting Professional Misconduct
(c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer’s report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).
Confidential Support Group For Depressive Attorneys Attendance limited to: Attorneys currently depressed and those seeking to maintain remission for the disease. Where: Doubletree Hotel Campbell Centre. 8250 N. Central Expressway, Dallas When: 2nd Monday of the month. 6:15 pm – 8:00 pm
How Courage Came to the Cowardly BY KELLY RENTZEL
I was a 21-year-old college senior when I was diagnosed with Bipolar I. It would be another 21 years before I publicly acknowledged my mental illness. The setting was a medium-sized room in North Dallas. Sixtysix people sat at long rectangular tables arranged end-to-end in five long rows. Most were lawyers there to attend yet another free CLE sponsored by the Dallas Bar Association. They had no idea that, over the next hour, they would be taken on my personal journey from mania to remission to depression to attempted suicide to shock treatment and back to remission again. At noon on August 11, 2017, my audience was looking for an easy hour of ethics credit. To the best of my knowledge, aside from the few friends I had told, no one I had met during my 15 years of legal practice had suspected I had bipolar disorder. Not that the disorder had not been mentioned in my presence; in fact, quite the contrary: over the years, countless people had come into my office to complain of people other than me who, they proclaimed, were “bipolar”: jealous ex-husbands, angry co-workers, erratic siblings. By all appearances, I was well under the radar, especially now that I was general counsel of a bank. Still, I had assumed that the seminar’s title, “Disorder in the Court: Life as a Bipolar Lawyer,” would alert the audience to my bipolar status. But moments before I stood up to speak, an older male lawyer I had met on a case years before asked me, “What do you know about bipolar lawyers?” There was still time to turn back…. After more than two decades in hiding, I could feel myself defaulting to caution and cowardice. I didn’t have to admit my illness. I could say I had a bipolar colleague or friend. I could speak generically about the disorder: symptoms, treatment, famous sufferers. That would be the safe course—the course I had followed my entire career. But I had already deviated from the “safe course” months before when I disclosed my condition to my employer. I had endured that uncomfortable exercise in order to give myself freedom to speak in public. There was no going back now. I looked up at the man and smiled. “I’m bipolar.” Then I stood up and, over the next 45 minutes, shared the whole self-incriminating story. At the conclusion of my presentation, I asked the somewhat shell-shocked audience whether they had any questions. Several hands shot up. The first few questions
were relatively predictable: What medication was I on? How long ago did I receive shock treatment? Were bipolar people really more creative than other people? (Lithium, Wellbutrin, Ambien. Five years. There’s certainly a body of evidence to support this contention, and for further information, I recommend consulting my very favorite article ever, “You Don’t Have To Be Bipolar To Be a Genius, But It Helps.”) I was on a roll….until a distinguishedlooking Indian man in the front row stopped me dead in my tracks: “What gave you the courage to speak about this?” I knew I could not give him an adequate answer. For one thing, I had only barely had the “courage” in question. I had toggled between courage and cowardice right up until I opened my mouth. Even when I did speak, I had approached the topic in a way that gave me distance from it. After (truthfully) telling the audience I had prayed for the courage to speak from the heart about my brain, I had launched into a Wizard of Oz metaphor: I, as Dorothy, had endured a tornadic storm (mania), then landed in a new world in which I was now an outsider (my postdiagnosis life), then traveled a long yellow brick road (remission), then endured a dark forest (anxiety/depression), and ended up fighting for my life against an evil witch (suicidal depression) before finally reaching the Emerald City (my current life as a happy, healthy, working mom). Somewhere between the tornado and the brick road— several minutes in—I had buried the word “bipolar.” It was about as third-person as a first-person story could be. Standing before the audience, the best I could do was explain where the courage began: After I was diagnosed, I read all the books on bipolar disorder that I could find. I was so grateful to Kay Redfield Jamison and Patti Duke for sharing their stories, and I used their stories as inspiration. But I still felt so alone. I did not see any examples of people with bipolar disorder who
just went out and lived normal professional lives. I did not want others to feel as alone, hopeless, and limited as I did. So I promised my 21-yearold self that I would succeed in some type of professional career and then, once I got to a point where I could reasonably, safely do it, I would share my story. After the presentation, the distinguished Indian man approached me. Shaking my hand, he introduced himself as Madhukar Trivedi. The name sounded vaguely familiar. Looking down at the card he handed me, I immediately realized why: Dr. Trivedi was Chief of the Division of Mood Disorders at UT Southwestern—the hospital where I had received the life-saving shock treatment I had described minutes before. Leaning towards me, almost conspiratorially, he said, “This will get easier as you keep going. You will see how much your story helps people.” Here was someone who knew exactly where courage comes from: encouragement. The word “encourage,” it turns out, literally means, “to put courage in,” or, more fundamentally, “to put heart in;” its opposite, “discourage,” is composed of the roots “dis” (away) and “courage,” hence, its meaning: “to drive away from courage.” According to my trusty Oxford English Dictionary, a form of the word “discourage” first appeared in printed English (okay, Middle English) in 1481, while the word “encourage” came on the scene in 1490. Thus, there is etymological evidence that, as of at least 500 hundred years ago (and probably long before), people recognized that courage could be instilled in and removed from others. What can be given can also be taken away. (The effects of other people on courage and heart are very much worth discussing in the context of depression, and I hope to do so in a future writing.) Words of encouragement are particularly powerful to me—mantras of courage. In the months leading up to my speech, I clung to a few in particular: • “If they did, that would be the best federal case ever!”
“After more than two decades in hiding, I could feel myself defaulting to caution and cowardice. I didn’t have to admit my illness.”
—my former boss, a retired magistrate judge, after I expressed concern (thankfully, ultimately unfounded) that my superiors at work might demote me if I disclosed my disorder • “In order to speak what you might regard as the truth, you have to let go of the outcome.” —Dr. Jordan B. Peterson, psychology professor and author of 12 Rules for Life: An Antidote to Chaos, in a Youtube clip entitled (unofficially by its poster) “Jordan Peterson - Speak your truth or pay the price,” available at https://youtu.be/ Aj39VL60Hgo, which I must have watched at least 50 times before that first speech • “Sometimes you just have to say, ‘Damn the torpedoes!’” —my high school English teacher’s husband, who, though unfamiliar with Dr. Peterson’s above-cited statement, gave me this perfect five-syllable distillation of it during a much-needed telephonic pep talk the day before I disclosed my disorder at work • “You’re in the bonnet; I’m in the wagon! Keep going!” —my close friend and former co-clerk who, after I called her in a panic the day before my presentation, texted me a picture of a bonneted pioneer woman standing in tall prairie grass, Conestoga wagon behind her The story I told that day was mine, but the story of sharing my story belongs to these people and so many others who provided encouragement as I made my slow advance to that first podium. The next time I spoke in public, I had Dr. Trivedi’s words at my back. I also had the words of at least a hundred others who, in the wake of my first presentation, had written letters, e-mails, and Facebook messages. Every word had given me more courage. This time, there was no Dorothy, no cyclone…no fiction at all. I walked onto the stage, leaned into the microphone, and spoke the impossible: “Twenty-one years ago, I was diagnosed with bipolar disorder….” HN Kelly Rentzel is a Dallas native who graduated with honors from the Dedman School of Law at SMU. She is General Counsel at a Dallas bank. Kelly is mother to a seven-year-old daughter and lives in University Park. She is currently working on a book about her experiences.
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
Focus
May 2018
ADR/Collaborative Law
Turning Failure into Success – What to do When Mediation Fails BY RICHARD M. HUNT
In a perfect world, the parties arrive at mediation ready, willing, and able to settle whatever dispute took them to court and in possession of all the information needed to evaluate the case and make good decisions. Also, in a perfect world, we all ride our pet unicorns to work. However, in the real world, things go wrong. Mediation may occur too soon for the parties to understand their risks or so late it seems not to matter. One or both of the parties may resent being compelled to attend a court-ordered mediation and arrive with a chip on a shoulder. Sometimes the lawyers themselves create obstacles to resolution. Whatever the reason, mediation may fail to produce a settlement, leaving the parties with what looks like nothing for their time and expense. Failure can, however, be turned to success. Good mediators know this and follow up with the parties for days or weeks after a mediation fails. Even without the media-
tor’s help, attorneys who know that a settlement is in their client’s best interest can use mediation as a springboard to a productive settlement discussion. Turning what looks like a wasted day into a first step toward settlement starts with the day of mediation itself. Mediation may seem to be simply about making sure the other side knows what you think is wrong with their case and what is right with yours, or about making your client’s settlement requirements clear. However, listening is equally important. At mediation you can learn what the opponent believes are her most powerful arguments. Those are the arguments that will be the focus of discovery and briefing if mediation fails because you cannot win if you do not consider your opponent’s best claims. Those arguments are also the focus of your strategy for post-mediation settlement discussions. Knowing the obstacles you face is the first step to finding ways around them. After a failed mediation, you should take a hard look at you and your client’s
actions and strategies. Mediation can fail for many reasons, and likely was not simply the other side’s delusions or the mediator’s inadequacies. Ask yourself what you could have done differently in your communications with the mediator. If you feel like the mediator did not understand your case, try another approach or a different explanation after time for reflection. And remember your audience, which is not a judge or jury, but indirectly to your opponent, who is starting from the position that your client is wrong, and he is right. Litigators are not trained in this type of persuasion, which requires an adjustment of both attitude and technique. You must also ask yourself whether or to what extent your client might have unrealistic expectations. It is critical to give your client an honest evaluation of the case, and there is nothing more difficult than giving your client the bad news that as the case progressed it got worse, not better. Ideally this is done before mediation, but a failed mediation means that a presumably good opposing lawyer has a significantly different view of the case. One of you is at least partly wrong, and it is worth thinking about whether it is you. Even if you conclude that
the other lawyer is the problem, understanding why he or she does not see the case the “right” way will help you decide how to handle future negotiations. Finally, strike while the iron is hot. Just as parties sometimes regret the deal they made after mediation, they may also regret having missed an opportunity to settle, especially when they paid for a failed mediation. Regret about a wasted day can be used both to move the opposing party and, if appropriate, move your own client toward a more reasonable position. If the mediator does not call you, you can always call the mediator with the new ideas and approaches you thought of after the mediation. If you were dissatisfied with the mediator, you can also call opposing counsel directly. Frustration with the mediator may be the common ground that leads to a more productive discussion of settlement with your opponent. Mediation failures can be turned into success. Simply use that failure as a learning experience and opportunity to do better in post-mediation settlement discussions. HN Richard M. Hunt is a partner at Hunt Huey PLLC. He can be reached at rhunt@hunthuey.com.
Priming and Reframing Mediations CONTINUED FROM PAGE 1
conscious to react, and a skilled mediator understands and extensively utilizes this form of communication throughout mediation. The most powerful form of priming comes at the beginning of the mediation during the opening statement to describe the ground rules and principles of mediation. A mediator commonly employs certain words in the opening statement such as: flexible, reasonable, rational, goal, and resolution, to name a few. However, when certain words are repeated over and over and used in either a positive or negative connotation, a mediator primes the parties to react and may inadvertently affect the outcome of mediation and void the mediator of neutrality. Framing, by contrast, is employed to change the conceptual or emotional setting or viewpoint and to place it in very different, positive frame. Also known as refocusing, mirroring, and looping, reframing can detoxify an issue by dropping unproductive accusations and reframing them into general problem solving and describing issues in more general or specific terms. For example, parties in mediation hear toxic words from each other, and profound strong personalities may soften and react in unique ways when their
words are reframed in front of their opposition. Likewise, weak personalities may be empowered to engage and rationally negotiate through the reframing of their position. It can be argued that mediators overexert their role through priming and reframing, and that priming and reframing inadvertently destroys neutrality. However, the bias we all have as humans continues to remain in each of us, even a mediator, and those biases cannot be checked at the door. How mediators control their bias during the course of mediation is critical, and although it is effective to prime and reframe participants in mediation, participants must realize that the human mind is ill-prepared to be truly neutral in all conflicts to be resolved. Further, because mediators are also human, it should be recognized that a mediator will be unable to provide the parties with a solution that is totally devoid of bias. However, at the end of the day, priming and reframing is critical to the process of mediation, and the skilled mediator employing these techniques in conflict resolution recognizes the importance of neutrality in reaching a successful outcome. HN William E. Sparks is an attorney and mediator at Conflict Resources, PLLC. He can be reached at wesparks@ conflictresourcespllc.com.
2018 Dallas County Criminal Practice Seminar Have you ever felt lost in the criminal courthouse? Want an insider’s tour of Frank Crowley? Attend this free seminar on Wednesday, May 9, 9:00 a.m-4:00 p.m. At the Frank Crowley Courthouse MCLE 6.00, Ethics 1.00 | RSVP vmejia@dallasbar.org Sponsored by the Criminal Justice Committee
May M a y 2018 2018â€
Bar AAssoci ssoci ati at i on l Headnotes Headnote s 11 DDalallas l as Bar 17
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
May 2018
ADR/Collaborative Law
Negotiation Tips and Techniques at Mediation BY JOHN SHIPP
Despite the misconception that negotiators are born and not made, negotiation is a learned skill. Here are some tips and techniques designed to improve your results at mediation. Know your Negotiating Leverage before Mediation. You will not know whether you should take the deal on the table until you know what your alternatives are. Before mediation, consider in detail what your alternatives are to a negotiated agreement, and do the same thing from the other side’s perspective. This exercise will give you insight into the realistic settlement range, whether you are dealing from a position of strength or weakness, and how hard you can push for concessions. Bonus tip: Sometimes the best deals are the ones you walk away from. Set Expectations before Mediation and Identify Interests. Have a substan-
tive discussion with opposing counsel before mediation. These discussions can be effective in identifying interests, potential barriers to an agreement, and possible paths toward settlement. Bonus tip: Ask questions and listen, and then listen some more. You can gain valuable insight into the other side’s interests, which you can then leverage to get what you want. Make a Demand or Offer Before Mediation. When dealing with large companies and insurance carriers, make a detailed demand or offer weeks before the actual mediation session. These cases are often evaluated through roundtable discussions and committees, and these matters often go through several levels of leadership before the case is valued and settlement authority is given. If you fail to provide your counterpart with your view of the case, they are setting a valuation in a vacuum. While mediation can shift perceptions
LAW DAY LUNCHEON ~ Honoring our State & Local Judiciary ~ Friday, May 4, Noon at Belo Keynote Speakers: Representative Pete Sessions Representative Mark Veasey Interview by DBA President Michael K. Hurst Tickets at www.dallasbar.org or email lhayden@dallasbar.org. Major Sponsor: Law Pay (www. lawpay.com/dallasbar)
Switch to LawPay at no cost and save up to 25% off standard credit card processing fees.
J
of case value, it is tough for any party to substantially change the case value on the fly or obtain sufficient additional authority at mediation—so you are better off helping them set that value earlier in the process. Providing the other side with a detailed demand or offer before mediation forces your counterpart to consider your evaluation of the case, tests his or her preconceived views of the value of the case, and sets expectations for mediation. Bonus tip: The more information you provide to support your evaluation, the more likely your counterpart will consider your valuation. Make the First Offer. Anchoring is when one party sets an initial position that begins the offer/counteroffer process. The party that sets an anchor first often achieves better results. A wellplaced, realistic anchor can move the zone of a possible agreement closer to your initial position. To increase your chances of moving the settlement range in your direction, you should anchor just within the realistic value of the case. Bonus tip: Making an unrealistic first offer outside the value of the case can have the opposite effect, as you will lose credibility, and allow your counterpart to set a more realistic anchor of their own. Deal with Insulting Offers and Responses. Parties are often insulted with offers made in mediation. These offers typically have no relation to the value of the case. While it may seem counterintuitive, an effective technique is to respond with a reasonable offer within the realistic range of pos-
sible settlement. You should send the offer with the message that the insulting offer was not considered in making the current offer as it has no relation to the value of the case, and that this latest offer was made with the intent to invite the other party to counter with a reasonable number. If the other party is unwilling to do so, he or she must know that your next offer will be nominal at best. Bonus tip: This can also be an effective technique when a negotiation has begun to stall when one party is unwilling to move off their number. Close the Deal and Maximize your Results. You have to do two things to maximize your results at mediation. Give your counterpart hope that there is an opportunity for a deal, and then make it painful to walk away. Give hope by making an offer within a realistic range of the settlement value of the case. They do not have to like the terms, but it should be attractive enough that it encourages them to negotiate off of their number. As the midpoint gets closer to each side’s number, urgency, and pressure increase to get a deal done. You can often obtain additional concessions and push your counterpart past his or her authority by making a final offer close enough to the other side’s bottom line that it is too painful to walk away from the deal. Bonus tip: A good rule of thumb is that most parties will not walk away from five to ten percent off of their bottom line. HN John Shipp practices as a mediator, arbitrator, and settlement counsel with Shipp Mediation. He can be reached at john@ shippmediation.com
SUNDAY, MAY 13TH | 10:30 A.M.‐2:30 P.M. PAVILION AT THE BELO MANSION
oin us for a culinary tour at the beau�ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimentary champagne and mimosas. A boun�ful selec�on of fresh fruit, breakfast breads, chilled seafood sta�on, carved prime rib, omelets and freshly made pancakes and waffles, a variety of pies, cakes and sweets, and the ever-popular children’s buffet. Serving hours from 10:30 a.m. to 2:30 p.m. | Adults: $39.95; Children 6-12: $13.75 Garage parking available ( from Olive Street. ) Taxes, gratuities and parking not included Reservations Required by May 9. Credit Card to hold reservation. No-shows will be billed. Call: ( 214 ) 220-7404 or email culinairesales@dallasbar.org. Limited seating. Sponsored by the DBA Entertainment Committee.
Create Your Account at onlinecle.dallasbar.org
SIGN UP FOR THE 2017 DBA 100 CLUB! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association. What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are a member of the Dallas Bar Association. To join the 2017 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2017 DBA 100 Club membership list! What are the perks? Our 2017 DBA 100 Club members will be recognized in Headnotes, the 2018 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November. JOIN TODAY!
May 2018
D al l as Bar A ssoci ati on l Headnotes 19
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
Excellence in the field of Alternative Dispute Resolution
Jeff Abrams
Hon. Ted Akin
Corbet Bryant Jr.
John Chalk
William Cornelius
John DeGroote
Christian Dennie
(972) 702-9066
(214) 821-6370
(214) 855-3008
(817) 878-0575
(903) 509-5004
(214) 887-3484
(817) 731-4500
William Lemons
Mike McCullough
Wade McMullen
(903) 978-2066
(214) 365-9000
(817) 731-4163
Suzanne Duvall
Kay Elliott
John Hughes
Beth Krugler
(214) 528-1411
(817) 878-2589
(817) 291-4147
(817) 377-8081
Chris Nolland
Will Pryor
Ken Rubenstein
Bud Silverberg
Mel Wolovits
Stephen Yungblut
(214) 653-4360
(469) 374-0222
(214) 528-1411
(972) 764-4300
(214) 528-1411
(817) 633-2200
Check Check preferred preferred available available dates dates or or schedule schedule appointments appointments online online with with Texas’ Texas’top top litigator-rated litigator-rated neutrals neutrals www.TexasNeutrals.org www.TeasNeutrals.org is a free service, funded by our 66 members.
Over Over5500 5500appointments appointmentswere werescheduled scheduledby byTX TXfirms firmsin in2017 2017
NADN is proud to work with the members of the national trial and defense bar associations
20 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
May 2018
ADR/Collaborative Law
The Beauty of Conditional Offers or Brackets BY JEFF ABRAMS
In my 32 years of mediation practice, I have settled thousands of cases, trained countless mediators, and prepared lawyers to become better negotiators. I am a fan of the conditional offer. It is used for accelerating the pace of negotiations, creating momentum, projecting a target range, and building confidence that a settlement is attainable. While many mediators use conditional offers late in the mediation, the technique can be successfully employed at early stages as well. Parties often begin far apart in stated demands and offers. They can slog it out, making minor concessions, not moving the needle much with each move. It can be frustrating and agonizingly slow. The parties lose hope and want to abandon the process. The mediator must keep the parties engaged and make progress with each negotiated move. A conditional offer is a graceful way of giving ground and getting something valuable in return. Say that plaintiff’s (P) demand is $1
million and defendant (D) offers $25,000. P can move in small increments, D can do the same, and the negotiation feels like death by a thousand cuts. P can make a major concession (say to $800,000) but fears D will not respond in kind or make a small move. Instead of “giving away” $200,000 in the negotiation, P can ask for something in return. P says it will go to $800,000 only if D goes to $100,000. P is communicating that a settlement needs to be in the six-figure range. It makes sense to ask the other side to step across a “threshold”—e.g., to move from 5 figures to 6 figures (or the other direction), to move in quarter steps (0-2550-100), etc. The parties are narrowing the range, extracting a concession, and getting two moves with a single ask. Sometimes a little enticement is needed to make the jump look more attractive. P might offer to move from $1 million to $950,000 unconditionally (a small move)— AND—at the same time, make a further concession by proposing $800,000 for
Moms in Law Lunches May
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 May lunches are: Thursday, May 3, Noon at Perry’s Steakhouse & Grille (2000 McKinney Ave., Ste. 100) Must RSVP by April 27. Only 12 spots available. Tuesday, May 22, Noon at Belo (2101 Ross Avenue) Panel: How to Make the Legal Profession More Mom-Friendly RSVP at www.dayl.com/moms-in-law-cle/ For more information, email christine@connatserfamilylaw.com.
PROFESSIONAL SEMINAR 2018
$100,000 bracket. The move suggests that if D is willing to cross the six-figure threshold, it will be rewarded with a major move. It is important to track the midpoint of every conditional offer. While parties might want to communicate that the midpoint is not the target, everyone looks at that number. When the range gets very tight (near the end), the mediator might propose a midpoint. For now, the midpoints remain fluid. The $800,000 for $100,000 conditional move shows a midpoint of $450,000. From the defense view, this might suggest that P is breaking below $500,000, a good sign. Alternatively, it might mean nothing more than D has to get into six-figures to settle the case. Responding to a conditional offer: 1. A simple “Yes” to the bracket and returning to P for the next move—D says YES to $800,000 for $100,000. D is at $100,000. P is at $800,000. P’s turn. 2. A “No” to the bracket and an unconditional move—D says $50,000. P is officially at $950,000. P’s move. 3. A counter-bracket that brackets within the range—$150,000 for $450,000 (offering more than $100,000 needed to step into bracket but asking for greater concession from P (midpoint - $300,000) 4. A counter-bracket that brackets outside the range—$50,000 for $90,000 5. A counter-bracket that captures only one end of the bracket—$75,000 for $525,000 (midpoint - $300,000). Parties can exchange multiple brackets or conditional moves. The last stated concrete or unconditional numbers might be far apart, but the signals the parties are sending via conditional moves broadcast where the parties want to end up. It increases confidence that settlement is within reach.
JEFF ABRAMS Mediator & Arbitrator
Featuring Chris Hoyt PRESENTED BY:
Thursday, May 10, 2018 8:00am to 11:30am Communities Foundation of Texas 5500 Caruth Haven Lane, Dallas, Texas 75225 $90 Registration
Topics of Discussion:
I. Retirement Assets for First and Second Marriages: Let the Fun Begin II. Income Tax Savings with Charitable Bequests: IRD and Income-based Bequests III. So, You Wanna Be a Philanthropist? Approved Credits: CPE/CFP 3-hour credit, MCLE 3-hour credit No prerequisite required
Seating is limited. Register today! To register, or for more information, visit www.CFTexas.org/Seminar2018 or call 214.750.4145 MAJOR SPONSOR:
View additional sponsors at www.CFTexas.org/Seminar2018
Experienced Creative Dog Friendly Online scheduling calendar www.abramsmediation.com Office 972-702-9066 Cell 214-289-4427 jeff@abramsmediation.com Case coordinator: kelli@abramsmediation.com
Negotiation Moves
P is Plaintiff; D is Defendant. P - $1million D - $25,000 P - $950,000—or - $800,000 for $100,000 bracket (midpoint - $450,000) D - $150,000 for $450,000 (midpoint $300,000) P - $600,000 for $200,000 (midpoint $400,000) D - $200,000 for $500,000 (midpoint $350,000) P - $400,000 for $300,000 (midpoint $350,000) D - YES, P’s turn—Note the only absolute numbers on the table are $1 million from P and $25,000 from D but the conditional moves show they are very close P - $375,000—a concrete number within the $400,000 - $300,000 bracket D - $325,000 P - $350,000 only if D is willing to accept D - Yes—settled at $350,000
Absent brackets, it might take a long time for P to break south of $500,000 or for D to break north of $100,000. Conditional moves can be very effective. The quid pro quo of the bracket is a potent tool for bringing the parties within an acceptable settlement range with each side feeling they are getting something valuable for their move with every turn. Do not be afraid of using conditional offers early and often in the process. HN Jeff Abrams is an exclusive ADR provider offering mediation, arbitration, settlement counsel, and training services. He can be reached at jeff@abramsmediation.com.
May 2018
D al l as Bar A ssoci ati on l Headnotes 21
Crossing Cultural Boundaries in Mediation BY LISBETH M. BULMASH
As our world becomes more complex and multi-faceted, we are seeing mediations filled with people from different cultures, ethnicities, religions and races. There are steps we can take to develop sensitivity and awareness to those who are different from us. By making this effort, we can succeed in crossing cultural barriers in mediation. Preparation. The best way to be sensitive to others is to do some homework ahead of time. Find out as much as you can about the parties. Is there a language barrier? Is a translator necessary? Where are the parties from? Are they accustomed to solving disputes or to doing business differently? There are times when a party’s customs and practices need to be respected from the outset of the mediation in order to avoid offending a party. Do your research on a specific group or culture. This research could include talking to a representative of a particular group or religious organization. Knowing some of these customs can be very advantageous. Be sensitive to how a particular culture may conceive of mediation. Representing all Parties Equally. It is
very important to set the tone of the mediation and make fairness and equality your guide. Get to know all sides in mediation with equal effort. It is important to not play favorites. If you relate to one side more, the person from a different culture can feel that the mediation is stacked against them. Set a Professional and Fair Tone at the Outset. From the beginning, set a professional tone for the mediation. Give all parties an opportunity to be heard. There are mechanisms that can be used at all junctures to ensure that each party is really being heard by you and in turn, heard by others as well. These mechanisms include mirroring what each party says. By repeating each party’s statements and positions, you make sure that both sides are hearing the information correctly. Tune in to the Common Denominator - the Parties’ Body Language. When you are mediating a case involving people who are seemingly different from yourself, there are other things or clues that are common to everyone. Look at the parties’ expressions, body language and determine what is not being said in mediation. If you have made a mistake and detect that something
How to Probate a Will Speaker: David Mead, Burdette & Rice, PLLC Wednesday, May 30, Noon at Belo. MCLE 1.00 To register, contact vallejod@lanwt.org. Sponsored by DVAP
is off with the parties, don’t hesitate to ask. Detecting body language can also clue you into what is working in the mediation and what is not. Look for the folded arms, eye rolls or silence of a party to assist you in developing a more efficient process in the mediation. Being responsive to these nonverbal clues will prevent the alienation of one side and keep the mediation on track. Use Empathy to Identify with Every side of Mediation. Imagine you are standing in the shoes of each party. Seek to understand the cultures, traditions, religions, and customs of each individual. Ask questions to each party. Ask open-ended questions to get information. For example, how have you resolved disputes in the past? How are they solved in your family or community? In doing so, you can show empathy and compassion for each side of a dispute. Completing this exercise will also help you to identify any misconceptions about the legal system or about mediation as you discuss and identify each party’s needs and wants. Prevent a Party from Demonstrating Disrespect for the Other Side. If there appears to be disrespect from a party in the mediation, you as the mediator need to
educate the party and take the high road in leveling this behavior. The mediator is the conduit to getting past any poor behavior. The responses and actions of the mediator can change the trajectory of things. Avoid Stereotypes: Analyze Specific things on a Case by Case Basis. There is an important issue in looking at the culture of a particular family. Who is the decision maker? Don’t assume that the person at the mediation is the decision maker. Avoid imposing stereotypes of a particular race, religion or culture. Make no assumptions about a particular person based on their dress, style or skin color. It is important to approach every party with sensitivity. Please don’t assume that all people are the same. Realize that each individual may come to the mediation with assumptions and cultural biases that can undercut progress in the mediation. As the mediator, do your research and approach parties carefully to avoid insensitivity to individuals from a different culture, religion and/or ethnicity. HN Lisbeth Bulmash is an attorney-mediator at Mediators360She can be contacted at lis@mediators360.com.
SAVE
Annual Evening Ethics Fest
DATE
Thursday, May 10, 2018 at the Belo Mansion
the
Check-In and Dinner: 4:45 p.m. & Program: 5:30 p.m.
DBA members: $65 early registration | $95 late registration Non-members: $135 early registration | $155 late registration MCLE: 3.00 Ethics - Register at www.dallasbar.org For more information contact Marcela Mejia at (214) 220-7410 or mmejia@dallasbar.org.
Sponsored by the DBA Legal Ethics Committee
FEDERAL & STATE CRIMINAL DEFENSE FEDERAL & STATE CIVIL TRIAL MATTERS
Knox Fitzpatrick ✯ Jim Jacks ✯ Bob Smith ✯ Mike Uhl ✯ Ritch Roberts 500 NORTH AKARD STREET, ROSS TOWER, SUITE 2150 DALLAS, TEXAS 75201-6654 | 214-237-0900 *Independent Law Offices
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
May 2018
Texas Liquor Liability Practice Manual In this updated resource from Texas Lawyer, Spencer Markle explains the process from initial investigation through jury trial... Discover summaries of pertinent statutes and case law; tips on prosecution and defense strategies; and trial advice on the pros and cons of expert testimony. Book purchase includes a CD of sample forms and an e-book platform with searchable text! Topics include: • Traditional Common Law Immunity • Origins of Texas Dram Shop Liability • Statutory Cause of Action § 2.02 TABC • Traditional Common Law Social Host Immunity • Statutory Social Host Liability, TABC § 2.02c. • Exclusivity of the Cause of Action, TABC § 2.03 • Recovery of Exemplary Damages • Safe Harbor Affirmative Defense, TABC § 106.14 • Duenez and the Comparative Responsibility Act • Evaluating the Potential Dram Shop Case Plaintiff’s Perspective • Preparation of Plaintiff’s Original Petition • Toxicology and Expert Testimony • Motions in Limine • Trying the Dram Shop Case to a Jury • And many more!
Order your copy by calling 877.256.2472. w w w. Te x a s L a w y e r B o o k s . c o m
YOUR LOGO
Your Law Firm 1234 Main Street Anytown, TX 12345 512-555-1234 payments@yourlawfirm.com www.yourlawfirm.com
THE PREFERRED CHOICE
Invoice Payment
For more than a decade, LawPay has been the go-to
Payment Detail Amount
solution for legal professionals. Our simple online
$ 500.00
Card Information
payment solution helps you get paid faster by letting
Name on Card Roy Smith Card Number
111
Exp. August
you attach a secure payment link to your email,
CVV
5555 5555 5555 5555
2020
PAY ATTORNEY
website, or invoices so that clients can pay with just a click. Our solution was developed for law firms, so
EASY FOR YOUR CLIENTS, A NO-BRAINER FOR YOUR FIRM.
earned and unearned fees are separated and your IOLTA is always protected from any third-party debiting. No online payment processor has more experience helping lawyers than LawPay.
Bar-Approved Member Benefit
Contact our legal payment experts at
877-260-1115 or visit lawpay.com/dallasbar LawPay is a registered ISO of Citizens Bank, N.A.
May 2018
D al l as Bar A ssoci ati on l Headnotes 23
The Best Darn Bar Association in the Country BY MARK SALES
Nancy Thomas, Past President of the Dallas Bar Association, said it best, the DBA is the “best darn bar association in the country.” Yes, the DBA is indeed a remarkable association. We have a long-standing legacy of service, outstanding programs and projects benefitting our members and our community, a large, growing, diverse and interesting (and fun) membership, an amazing facility and home in the Belo Mansion and Pavilion, and, importantly, a long history of leadership and service in matters of importance to lawyers and our community. That leadership, involvement, and commitment is demonstrated not just at the local and state level; but reaches far beyond. The DBA’s reputation and its reach are truly national in scope. Our association and members have long played prominent roles in the American Bar Association (ABA) and its related organizations. Many of you are ABA members, but for those that are not, a little background is in order. The ABA is a voluntary association of lawyers from every state and territory of the country. Currently it has more than 400,000 members. It is governed and controlled through its President and officers, a 44-member Board of Governors and a 589-member House of Delegates, which is a representative policy-making body (much like Congress) that sets policies on a host of issues of importance to lawyers and the society at large. The ABA also has more than 75 sections, divisions, and committees, some focused on specific substantive areas of practice (environmental, energy and resources law, criminal justice, litigation, intellectual property law, international law, real estate, trust and probate law and science and family law just to name a few) and others focused on membership groups or affinity groups (the judiciary, young lawyers, diversity, and
women in the profession). Among its many functions, the ABA is involved in proposing model codes of professional conduct, accreditation of law schools, and the evaluation of all nominees to federal (Article III) courts. Another important constituency under the ABA umbrella, is the National Conference of Bar Presidents, which is comprised of presidents, executive directors, and foundation directors of both mandatory and voluntary state and local bar associations. Within this organization is the Metro Bar Caucus (now a standing committee of NCBP), which provides a forum, network and programming for issues of interest for large voluntary metro bar associations with over 1,000 members (such as Dallas, Houston, San Antonio, Austin, Chicago, Atlanta, Philadelphia). With that in mind, here is a nonexhaustive list of the DBA’s and some of our Dallas lawyers’ recent involvement and service in the ABA. ABA Governance: Michele Wong Krause was elected to the Board of Governors at the ABA’s 2018 Midyear Meeting in Vancouver. Past DBA Presidents Rhonda Hunter and I (who recently replaced Justice Liz Lang Miers after her many years of service) serve as the DBA’s two delegates in the House of Delegates. Kim Askew, as the Texas State Delegate, serves on the nominating committee which elects all officers of the ABA, and is the leader of the entire Texas Delegation in the House. At the Midyear meeting, the House of Delegates addressed a number of resolutions, including initiatives to provide trial experience to young lawyers and women attorneys, best practices related to the investigation of sexual harassment and sexual misconduct complaints, the extension of Batson challenges to gender and sexual orientation, and issues on homelessness, disability and healthcare. Information on these resolutions can be found on the ABA’s website at www.americanbar.org/groups/
leadership/house_of_delegates/2018-vancouver-midyear-meeting.html. ABA Sections, Divisions, and Committees: DBA Past President Justice Liz Lang-Miers has been appointed to serve as the Vice Chair of the Judicial Division of the ABA (she will become Chair-Elect in 2018, and serve as Chair in 2019). Ms. Askew, a former Chair of the ABA Section of Litigation, continues her service to the Federal Judiciary Committee as she vets nominees to federal courts around the country and in Texas. Of course, she testified before the Senate in the nominations of Associate Justices Sonia Sotomayor and Elena Kagan. Ms. Hunter and Ms. Wong Krause continue their service and involvement in special diversity projects and programming. DBA members lead sections where much of the substantive work of the ABA is accomplished. Ron Breaux was a 2017 Managing Director of the Section of Litigation where he was involved in every aspect of leadership in one of the largest ABA sections. Monica Latin led Roundtables in the Section of Litigation, working to involve lawyers in substantive discussions of litigation—she led the New Federal Rules program here in Dallas and around the country. Others like Marshall Doke, a former Chair of the Public Contract Law Section, continue to serve in an emeritus capacity. Metro Bar Caucus and National Conference of Bar Presidents: I am the current President of the Metro Bar Caucus and DBA Past President Christina Melton Crain is a former member of its executive committee. At the recent ABA Midyear Meeting in Vancouver, the MBC sponsored programs related to issues as diverse as veterans’ rights (of which Texas leads) to Roundtable discussions with bar leaders across the country on topics of interest to large voluntary bars. DBA President Michael Hurst, DBA President-Elect Laura Benitez Geisler, and DBA Executive Director Alicia Hernandez were
there participating in these programs. And, our leadership extends deep into the NCBP. DBA Past President Justice Douglas Lang was President of the NCBP (2004-2005), Past President Hunter was a recent member of NCBP’s executive committee, and former DBA Executive Director Cathy Mather was a recent member of the executive committee of the National Conference of Bar Executive (NABE), an affiliate of NCBP. ABA Awards and Recognition: The DBA and its programs have been recognized numerous times at the national level. Here are just a few of the awards: 2017 NABE Luminary Award for Excellence in Special Projects; 2015 NABE Luminary Award for Excellence in Websites; 2013 ABA Partnership Award for the DBA’s 2012 Diversity Summit; 2010 NABE Luminary Award for Excellence in Special Publications for Headnotes; 2009 NABE Luminary Award for Excellence in Marketing; and the 1998 Harrison Tweed Award for the Dallas Volunteer Attorney Program. The reputation, stature, and influence of the DBA at the national level are exceptional, much of which can be traced back to past leaders including Morris Harrell, former ABA President in 1982-83 and DBA President in 1962; Darrell Jordan, Member of ABA Board of Governors from 1995-1998 and DBA President in 1982; and Past ABA Section of Litigation Chairs Barry McNeil (1996-97) and Chief Judge Barbara M.G. Lynn (1998-99). We are viewed as an organization who leads on issues important to our profession and as a model to be followed by other bars who seek to achieve what we have: the best darn bar association in the country. Be proud to be a member of the DBA and encourage other lawyers to join. We welcome you and invite your ideas and participation. HN Mark Sales is a partner at Diamond McCarthy, LLP, and a DBA Past President. He can be reached at msales@diamondmccarthy.com.
This O d Dog Happens To Know A Few Tricks. Rely on a trial lawyer with 45 years of experience and 175 trials. When your case needs to be mediated, call Al Ellis, a trial lawyer who has the experience to help you creatively resolve any dispute. His vast experience in the courtroom gives him comprehensive insight that allows him to understand the different perspectives of each case. Al is one of only 500 U.S. members of the International Academy of Trial Lawyers, a former President of the Dallas Bar Association, and the recipient of the Morris Harrell Professionalism Award — evidence that he has earned the respect of peers on both sides of the docket. Once Al gets his teeth into a case, he won’t let go, working tirelessly until he negotiates a fair, mutually agreeable deal. When it’s time for mediation, there’s no one better to have at your side. Voted one of D Magazine’s Best Lawyers of 2015 for Alternative Dispute/Mediation
AL ELLIS
T R I A L L AW Y E R / M E D I AT O R Sommerman, McCaffity & Quesada, LLP 214.720.0720 | Dallas, TX al@textrial.com
24 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2018
LAW DAY 2018
Separation of Powers: Framework for Freedom Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “Separation of Powers: Framework for Freedom.”
Omer Moran, 11th Grade, David W. Carter High School First-Place (9th-12th)—Dallas
Monserat Perez, 7th Grade, Sam Tasby Middle School First-Place (6th-8th)—Dallas | First-Place (6th-8th)—State of Texas
Evelyn Rojas, 4th Grade, Obadiah Knight Elementary School First-Place (K-5th)—Dallas
Many legal malpractice insurers have come and gone in Texas over the last four decades. TLIE has been here since 1979. OVER 38 YEARS SUPPORTING TEXAS LAWYERS
TLIE.org / info@tlie.org / (512) 480-9074
May 2018
D al l as Bar A ssoci ati on l Headnotes 25
Force for Immigrant Rights & Empowerment (FIRE) Coalition BY BILL HOLSTON AND HANNAH ALEXANDER
Before a year and a half ago, there were several Dallas non-profits dedicated to meeting the legal needs of immigrants. These included Human Rights Initiative of North Texas, Catholic Charities of Dallas—Citizenship and Immigration Services, Mosaic Family Services, Workers Defense Project, and Justice for Our Neighbors (http://www.dallasbar.org/bookpage/pro-bono-immigration-opportunities). The organizations provided great services to their clients, and had congenial relationships with each other. On occasion, they would collaborate, most notably when many unaccompanied minors fled danger in their home countries in 2014 and 2015, when the volume and pace of cases forced coordination of efforts. However the efforts did not result in ongoing or long term collaboration. In 2017, the change in presidential administration created a significant increase in anxiety in immigrant communities. This is because of some of the rhetoric of the campaign, as well as threatened changes in immigration policy. This anxiety and uncertainty resulted in a dramatic increase in demand for know-your-rights presentations for immigrant community groups. As a consequence, Dallas organizations that serve immigrants realized that we needed to work together to improve access to resources by facilitating connections between immigrant communities and local social and legal services; to streamline and to standardize coherent and consistent messages about immigrants’ rights by sharing information internally and externally regarding the
latest changes in immigration-related law and policy; and to facilitate communication and coordination of events aimed at ensuring that immigrant communities understand their rights and the resources available to them. Thankfully, Dallas had welcomed several new legal service providers to the area such as: RAICES, Equal Justice Center, and the ACLU of Texas. It was obvious that any collaboration would need to include community representatives so that communication would take place with members of the communities affected, and that we could be assured that the client voices would be included and listened to. And so, the initial meeting also included representatives of the North Texas Dream Team, Mi Familia Vota, Texas Organizing Project, and faith based community organizers, Faith in Texas. This loose coalition of organizations was in part inspired by the work of immigration services providers and advocates in Houston who formed the Houston Immigration Legal Services Collaborative. After a couple of introductory meetings, the group came up with a name reflecting its goals: Force for Immigration Rights & Empowerment (FIRE). The first joint projects were a) sharing resources for use in know-your-rights presentations and the scheduling of presentations to avoid the duplication of efforts, and b) spreading information about the organizations doing DACA renewals in the aftermath of the planned end to DACA by the Administration. A subgroup worked on a mission statement: The Force for Immigrant Rights & Empowerment (FIRE) works to connect people with legal and community resources and provide timely
and reliable information about immigration-related policies. By mobilizing a network of non-profit organizations and attorneys, we strive to provide coordinated assistance for people as they navigate the U.S. immigration system and continue to build their lives as members of American society. The group formed a steering committee set up a schedule of quarterly meetings and then set the following as goals. We are making progress on all of them. With the collaboration of SMU Tsai Center for Law, Science and Innovation, the development of a web application, which provides know-your-rights information to individuals encountering ICE or the police at home, in the street, and in the car;
The development of a website with information about FIRE and the legal and social services available to the immigrant communities; The staffing of a legal hotline permitting individuals with immigration questions to obtain general direction; and The training of a rapid response team to address immigration raids. There is still a lot of work to be done and we are still working on new projects such as a referral list of legal services providers including private attorneys. But we have at least kindled a FIRE. HN Bill Holston is the Executive Director of Human Rights Initiative of North Texas. He can be reached at bholston@ hrionline.org. Hannah Alexander is an Attorney at the Equal Justice Center. She can be reached at halexander@ equaljusticecenter.org.
Bring Your Summer Clerks to Belo Learn about the broad range of opportunities in Dallas. Law Student Professionalism Program (MCLE 3.00) Thursday, June 1, at 2:00 p.m. RSVP to kzack@dallasbar.org Summer Associates Pro Bono Luncheon (MCLE 1.00) Friday, June 1, at Noon. RSVP to vallejod@lanwt.org Minority Clerkship Luncheons Friday, June 8, and July 6, at Noon. RSVP to bavina@dallasbar.org
Our mediation office in Dallas, Texas serves clients in an atmosphere of fairness and excellence. Mike McCullough and Jim Hitzelberger work to resolve your case in a fair and efficient manner. You can trust our staff to serve with balance and respect.
Phone: (214) 365-9000 www.McCulloughMediation.com 12222 Merit Dr. Suite 1200 Dallas, TX 75251
26 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
May 2018
In the News
FROM THE DAIS
Rogge Dunn, of Clouse Dunn, spoke at a CLE live webcast hosted by Knowledge Group on FINRA Arbitration and Enforcement. Joel Crouch, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Corpus Christi Chapter/ TSCPA Annual Tax Conference, also for the Clear Law Institute Webinar and at the Federal Tax Workshop 2018 – The New Partnership Audit Rules – In Depth. Matt Beard, of the firm, spoke in Houston for Tax Law in a Day sponsored by the Tax Section of the State Bar of Texas. Aaron Borden spoke for the Plaintiff’s Employment Law Group in Dallas and David Colmenero spoke for the AXA Advisors Seminar in Plano. Alex Pilawski and David Colmenero spoke at a webinar sponsored by Lorman Education Services. Tom Hineman and Alan Davis spoke at the Twenty-Seventh Annual Institute on Estate Planning sponsored by the Amarillo Area Estate Planning Council. Sally Helppie, of Vincent Serafino Geary Waddell Jenevein P.C., presented a program at the SXSW Film about
morality provisions in various entertainment contracts.
Drakeley & Urbach, P.C., has been elected to serve as President of the firm.
KUDOS
Samir Kaushik and Andrew Van Noord, of Jones Day, have been named Partners.
Mark Shank, of Gruber Hail Johansen Shank LLP, was selected by the Texas Bar Foundation as the 2018 Dan Rugeley Price Memorial Award recipient. David R. McAtee, of AT&T, received the Outstanding 50 Year Lawyer Award for 2018 from the Texas Bar Foundation. Allyson Ho, of Morgan, Lewis & Bockius LLP, received the 2018 Gregory S. Coleman Outstanding Appellate Lawyer Award from the Texas Bar Foundation. Shonn Brown, of Lynn Pinker Cox & Hurst, LLP, received the 53rd Annual SMU Womens Symposium Leadership award for her significant impact on the City of Dallas. Lewis Sifford, of Sifford, Anderson & Co., P.C., received the American Board of Trial Advocates Lifetime Achievement Award at the ABOTA Annual Meeting in San Francisco. R. Scott Seifert, of Hiersche, Hayward,
Cole Bredthauer, Nathan Meredith, and Michelle Vincent Parker, of Thompson & Knight LLP, have been promoted to Partners. Hyattye Simmons, of Hyattye 0. Simmons, Attorney at Law, was elected to membership in the Fellows of the Texas Bar Foundation. Marc Cabrera, of Locke Lord LLP, has been selected for the 2018 Fellows Program for the Leadership Council on Legal Diversity. Joshua Skora, of K&L Gates, has been named Partner. Michele Wong Krause, with The Wong Krause Law Firm, has been elected to the Board of Governors of the American Bar Association. Meloney Perry, of Perry Law P.C., is the chair for the Insurance Law Section of the State Bar of Texas. Justin Sumner, of Sumner, Schick & Pace, LLP, has been named a partner.
ON THE MOVE
Eduardo “Eddy” Espinosa, Elsa Manzanares, Michael Napoli, and Michelle Schulz joined Akerman LLP as Partners. Sarah Wirskye is now the Managing Shareholder of the Wirskye Law Firm, 5220 Spring Valley Road, Suite 200, Dallas, TX 75254. Phone: (972) 7257941. Jeffrey Glassman joined Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. as Associate. Steven T. Holmes joined Cavazos Hendricks Poirot, P.C. as Shareholder. Beverly B. Godbey joined Amy Stewart Law as Principal. David Schulte joined Holland & Knight as Litigation Partner. Scott Harper, Shannon Bates, and Austin Champion’s law firm has changed its name to Harper Bates & Champion LLP. Jamie T. Katzen joined Gray Reed & McGraw as Senior Counsel. Ron McCallum has opened the firm of McCallum & Associates, PLLC, located at 750 N. St. Paul, Ste. 1800, Dallas, Texas 75201 - (214) 702-0555. Bernard Guerrini and John L. Thompson announced that Bernard A. Guerrini, P.C. is now Guerrini & Thompson, P.C.
Soren Lindstrom has joined Alston & Bird LLP as Partner.
Cynthia Brotman Nelson and Kevin Kelley joined Jackson Walker as Partners.
Speakers include experienced family law practitioners and judges Friday, May 18, 9:00 a.m.-5:00 p.m. at Belo. MCLE 7.00, Ethics1.50
James Griffin and Kate Schneider joined Scheef & Stone, L.L.P. as Partner and Associate, respectively. Schneider is at the firm’s Frisco office and Griffin at the Dallas office.
Lou Ann Brunenn has joined Greenberg Traurig, LLP as Shareholder.
To register, contact vallejod@lanwt.org. Cost: $200 or free to those volunteering to take a DVAP case.
Nichole Plagens joined Munck Wilson Mandala, LLP as Associate.
DVAP & the DBA Family Law Section present
Family Law Ad Litem & Amicus Attorney Training
When litigation involves healthcare contracts...you need a Healthcare Litigator on your team. Contract Litigation OIG Civil Investigations FBI Criminal Investigations Commercial Insurance Litigation Business Breakups 15.50 Non-Competes Fraud waste & Abuse
Martin Merritt Health Law and Healthcare Litigation Executive Director Texas Health Lawyers Association
Adam Bell and Gary Powell joined Bailey Brauer PLLC as Associate and Of Counsel, respectively.
News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
Tips on Arbitration Advocacy from an Arbitrator CONTINUED FROM PAGE 1
among lawyers. The prepared and professional advocate will also be the most persuasive advocate.
Don’t be Alarmed About Hearsay
Most arbitrators will allow hearsay evidence to be admitted, but trained arbitrators know the difference between hearsay and first-hand evidence and can make credibility determinations based upon these differences.
Make it Easy to Award Damages Arbitrators state that cates focus almost all of on liability, and damages thought. Again, charts,
Connect on LinkedIn www.linkedin.com/in/martinmerritt/
often advotheir efforts are an aftergraphs, and
summaries are very useful in proving damages. If you are asking for interest, you should indicate how you contend it should be calculated.
Post-Hearing
Typically, parties are allowed to file post-hearing briefs. Arbitrators recommend that advocates make the most of this opportunity. Get to the point and tie your proof to the elements. If you cite case law, highlight it and send it to the arbitrator along with your brief. Some arbitrators prefer to receive draft awards and some do not. Ask the arbitrator for his or her preference. Hopefully these tips from arbitrators will assist advocates in better serving their clients. HN
Mark Shank is a past president of the Dallas Bar Association and partner at Diamond McCarthy. He can be reached at mshank@diamondmccarthy.com.
Habitat House
mmerritt@fflawoffice.com 972.788.1400
Kris Balekian Hayes, Jennifer Goldman, and Delia Gonzalez have opened HG² Mediation. Phone: 469-616-1442.
$80,000 $60,000 $40,000 $30,000
5301 SPRING VALLEY ROAD | SUITE 200 | DALLAS, TEXAS 75254
$20,000
www.fflawoffice.com
$10,000 $5,000
Support the DBA Home Project Help us reach our goal of $80,000 to build our 28th house for Habitat for Humanity. For more information, log on to www.facebook.com/DBAHomeProject or contact Co-Chairs David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Grecia Alfaro Dallas Bar Association 2101 Ross Avenue Dallas, TX 75201
May 2018
Classifieds
D al l as Bar A ssoci ati on l Headnotes 27
May
EXPERT WITNESS
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) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Economic Damages Experts – HSNO is the Forensics Firm. Economic Damages Experts - HSNO is a CPA firm specializing in Financial Damages. The Dallas office of HSNO has five CPA testifying experts who specialize in the calculation of financial damages in most areas including commercial lost profits, personal lost earnings, business valuations, insurance litigation, intellectual properties and contract disputes. HSNO is qualified in most industries including, but not limited to; energy, manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 10 U.S. offices and an office in London. Contact Peter Hagen CPA CFF CEO at (972) 980-5060; or go to HSNO.com.
OFFICE SPACE
Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. Perfect Offices just East of Downtown in Lakewood Towers. 1-2 window offices with shared reception, conference, and break rooms. Free parking and Internet. Optionally furnished. Long or short term. Attorneys or Professionals. Flexible and friendly. (469) 458-6255 www.BranumPLLC.com Turtle Creek Blvd./Hall St. Area executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 740-5033 for a tour and information. Executive office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour. Plano - Shops at Legacy. Bright, modern
office space at vibrant Shops at Legacy in Plano. Office, 2 conference rooms, Internet, electricity, kitchen, and file storage for flat rate of $1200/mo. Great for startup or solo firm. Email Sam at sam@rjs-legal.com for more info. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2608 Hibernia Street, 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. 75 Central & Forest Lane. Johnson English Law Center – Merit Tower Office Space. For lease – Sleek, contemporary office space: 12222 Merit Drive – 12th Floor. Nine conference rooms, lobby with receptionist/mail service, high speed Internet, library, spacious breakroom… plus parking and workout facilities are complementary! Come take a look – Contact arobinson@englishpllc.com or (214) 528-4300. Uptown. 4054 McKinney Avenue has one suite available with 1275 sq. ft. The space has reception, conference and secretarial space. Located across from Cole Park with surface parking. One year terms with flat rates are available. Possibility of overflow Civil Litigation work. Call (214) 520-0600. Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers nine conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@englishpllc.com or (214) 528-4300.
POSITIONS AVAILABLE
Retained Counsel General Liability Attorney. Seeking an independent contractor insurance defense attorney to work on a wide variety of litigation including insurance defense, casualty defense, premises, auto, commercial litigation, products liability, and general negligence litigation in the Dallas and Houston areas. Requirements: Admission to Texas State Bar and the U.S. District Courts of Northern District and Southern District of Texas; 4 years of general litigation experience; and insurance defense experience including in negligence, products and premises liability, property damage and automobile accident litigation. Send resume and references to: texaslawfirm01@gmail.com. Transactional Real Estate Attorney in San Antonio. Seeking an experienced transactional real estate attorney to join 16 attorneys working for the Office of the Air Force General Counsel in San Antonio, Texas. Civil service position—GS-15 grade. Qualified applicants must be able to attain a security clearance. Six month minimum hiring process. Attorney will be responsible for providing legal advice and counsel to the Air Force Civil Engineer Center and Pentagon officials on laws, policies and matters regarding real estate including, but not limited to, acquisition, leasing, financing, development, management, temporary use, and disposal of real property. Position requires occasional travel away from San Antonio office. Job will be posted on the USAJobs federal government employment website sometime in May 2018. Qualified applicants must apply during the “open period” at www.usajobs.gov. For any questions about this position, please contact Ms. Debbie Schepis at (210) 395-9409. Qualification/ Requirements: • J.D. or LL.B degree from a law school accredited by the American Bar Association. • Admitted to and an active member in good standing with a bar
of any state. • Minimum of four (4) years of transactional real estate experience. Personal Injury Defense Attorney Position: 2 years minimum experience in personal injury defense litigation. Other requirements: Please do not be afraid of hard work. You have to be able to laugh at yourself, but never at others. Lose the ego. Treat the staff like you would treat your best client. Be willing to do things our way and don’t throw people under the bus. The Bassett Firm provides competitive salaries and exceptional benefits. Interested applicants send resume to nmenchaca@thebassettfirm.com. Retained Counsel, Employment Law. Seeking an independent contractor attorney to work on a wide variety of employment litigation, and charges of discrimination in State and Federal Courts, and before governmental agencies in the Dallas and Houston areas. Requirements: Admission to Texas State Bar and the U.S. District Courts of Northern District and Southern District of Texas; 4 years of employment litigation experience; and experience before the EEOC/TWC and state and federal courts. Send resume and references to: texaslawfirm01@gmail.com. Are you ready to take the keys and own your own law practice? Palmer & Manuel, PLLC is different. We are a team of experienced attorneys who own and run our own practices, keep 70% - 95% of our fees, and pay a fixed, reasonable monthly overhead to professional management to handle administrative matters so we can focus on practicing law. See our website at www.pamlaw.com or contact Larry Chek, Jeff Sandberg or Rebecca Manuel at (214) 242-6444. Paralegal Position. Langley LLP is a National civil trial, commercial bankruptcy, and appellate firm that represents Fortune 500 and middle-market industry leaders in disputes throughout the United States. Surety and Construction. Please send resume for paralegal position to kcrisler@l-llp.com. Responsibilities: Assists lawyers and works directly with clients. Qualifications: Bankruptcy experience a plus; Experience drafting, cite-checking, and correcting legal briefs (trial and appellate); Proficiency with Document Review Software (Summation, Relativity, Concordance, etc.), Excel, pivot tables and statistical analysis programs; and Familiar with electronic storage information, issue coding meta data. Work by The Firm’s Core 5 Principles: 1. Err on the side of over-communication, both internally and externally. 2. Two minds are better than one – the corollary is you can make any mistake you want, as long as we have not made it before. 3. Own your work – anything worth doing is worth doing right. 4. The harder you work, the luckier you get. 5. Perfection is strived for, but never achieved – improvement is always the goal. Email resume to kcrisler@l-llp.com. Dallas, Texas Boutique Firm seeks an associate attorney to join our team in
the areas of Probate and Business Law. Qualified candidates will have 1-2 years’ experience, exceptional communication and writing skills, a strong work ethic and the ability to learn quickly. This position will have direct client interfacing; work on cases from the contract stage through arbitration and litigation, including appeals; and have significant interaction with firm management and staff, and has opportunity for growth. Ideal candidates will be comfortable in a fast-paced, multi-tasked environment where delivering the best service to clients is the number one focus. They will be professional, detail oriented, and have a passion for helping people. Our office is equipped with top of the line technology and software tools that our attorneys and staff utilize to navigate daily tasks, conduct investigations, litigate cases, and stay in contact with our clients. Compensation is base plus hours billed. Interested candidates should email their resume to joe@parvinlaw.com. 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.
POSITION WANTED
Hard Working, Dependable Team Player Seeking New Challenge – Experienced, motivated/ disciplined attorney with strong organizational/team player skills seeking new challenge in insurance subrogation/defense, personal injury/ mortgage servicing (creditor). Currently responsible for civil cases involving bench/ jury trials. Apply to: gdm8589@ gmail.com.
SERVICES
What’s your language? Are you ready to help your clients in any language you like? (or you must!). Just call +1 (972) 6656295 OR +1 (469) 388-5899. Or send an email to simon.salman@mirora.com. Or visit www.mirora.com and see how we can help your clients at a time they need. Mirora Translations US LLC. MiroraUS@ mirora.com | www.miroraus.com. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
HN_May 2018-Final.pdf 1 4/2/2018 11:53:12 PM
28 H e a d n o t e s l D a l l a s B a r A s s o ciation
C
M
Y
CM
MY
CY
CMY
K
May 2018