Dallas Bar Association
HEADNOTES
Focus Bankruptcy Law
July 2011 Volume 36 Number 7
Mark Werbner: Dallas Bar Association DBA Dedicates 20th Habitat House Trial Lawyer of the Year 2011 by Robert Mow
Mark Werbner is a quick, smart and compelling trial lawyer. He has a winning smile for the honest witness—and a drop-dead cross-examination for his adversaries. His winsome nature with juries is legendary. These skills have put Mark at the very top of the trial lawyers in this country. As Justice Joseph Morris of the Fifth District Court of Appeals-Dallas states it: “When you watch Mark before a jury, you know you are seeing a first-tier trial lawyer at work.” The reasons are obvious. With some 150 trials under his belt, Mark is ready for anything and surprised by little. From these 150 trials and his exemplary trial skills in the courtroom, Mark has won many accolades. Among them are the following: • Fellow in the American College of Trial Lawyers Advocate in the American Board of Trial Lawyers • Fellow in the International Society of Barristers • Master in the Patrick E. Mark Werbner Higginbotham Inn of Court • The Best Lawyers in America (Betthe-Company Litigation, Commercial Litigation, White Collar Criminal Defense), 2001-2010 • Top 10 Attorneys in Texas in Texas Super Lawyers list in Texas Monthly magazine • Repeatedly honored among the “Best Lawyers in Dallas” by D Magazine • Named a “Go To” lawyer for plaintiff’s civil litigation by Texas Lawyer • “Top 100 Verdicts of the Year,” Verdict Search (2001, 2004, 2007) • “Trial Lawyer of the Year,” Texas Chapter of the American Board of Trial Advocates (2002) • Named a “Trial Legend” by Dallas Bar Association TIPS Section (2010) • “Top Plaintiff Attorney,” Lawdragon (2007) • “Top Five Dallas Defense Attorneys,” Dallas Business Journal (2007) • “A Top Ten Litigator,” The National Law Journal • “The Advocates,” Dallas’ Top Five Corporate Litigators, Dallas CEO (2008) But Mark almost missed being a trial lawyer. He had no lawyers in his family urging him on. It was only when he was in the sixth grade and he had a teacher who kept telling Mark that he argued so much and so well he should become a trial lawyer that he headed that way. After successful years at the University of Texas and Southern Methodist Uni-
versity Dedman School of Law, Mark took the Texas Bar Exam and became a trial lawyer. Good trial lawyers learn from experiences. A key skill they acquire is the ability to prepare witnesses to testify. As Mark knew, great witnesses make the difference and bring across points in contention much better than lawyers. For example, as a young trial lawyer, Mark was once in Midland in trial in the midst of a West Texas sand storm. Mark was about four years out of law school and his client, an oil field-savvy witness, was on the stand. The witness had been well prepared on the facts, but not the law. Late on Friday, the client was the last key witness and he was to show that the defendant oil company had breached a duty to the working interest owners by secretly moving the stake locating where the well was to be drilled. When Mark’s rough-cut witness testified that the oil company had breached a fiduciary duty, the oil company’s lawyer taunted Mark’s client by asserting, “You don’t even know what a fiduciary duty means, do you?” The client snapped back at the top of his voice, “I do, too.” “How do you know?” barked the defense lawyer. The answer: “My sixth grade teacher told me it was being honest and fair in all your dealings!” The courthouse grew quiet. There were no more questions. The jury came back for Mark. Lesson learned: There is undeniably persuasive power in a solid witness telling the truth! It doesn’t pay to bet against Mark when there is a jury in the box. Last year, Mark and his partner Dick Sayles, won a $3+ million patent infringement verdict for Commil USA, LLC against Cisco Systems, Inc. When that verdict was set aside due to comments by defense counsel, and a new jury was impaneled, the new jury awarded $63+ million in damages—a net increase of $60 million to Mark’s client because Mark was ready to trust the jury again. From his earliest days as a trial lawyer, Mark Werbner has established with countless juries his unerring feel for where the jury is and how much it will take for the jury to amply reward the injured plaintiff. United States District Judge Barbara M.G. Lynn recalls that she, as co-counsel with Mark, tried Continued on Page 7
On May 21, DBA volunteers marked the 20th anniversary of the DBA’s Habitat for Humanity Home Project. DBA president Barry Sorrels turned the keys over to the Buchanan family, as volunteers celebrated the completion and dedication of the home. The DBA is the longest-running wholehouse sponsor for the Dallas Area Habitat for Humanity. This year’s build was coordinated by DBA Home Project Co-Chairs David Diaz and Brad Johnson. To participate in the project for next year, contact David at ddiaz@kbdtexas.com.
Focus
Bankruptcy Law
Trade Creditors in Bankruptcy By Kevin M. Lippman and Jonathan L. Howell
This article is for non-bankruptcy attorneys who have clients that may become involved in a bankruptcy case because they sold goods to a party that subsequently filed bankruptcy (a “debtor”). Accordingly, this article discusses, among other things, factors influencing whether trade creditors should become actively involved in a bankruptcy and the remedies available to trade creditors in bankruptcy. I. Who Is A Trade Creditor A “trade creditor” is a creditor whose claim is based on goods it sold to a debtor prior to the date the debtor commenced its bankruptcy case (the “petition date”). II. Factors Influencing Active Involvement in a Bankruptcy Case Determining whether a client should be proactive in a bankruptcy case can be difficult, particularly when it appears the recovery on the client’s claim may be nominal. When making this determination, it is important to understand the priority distribution scheme in bankruptcy. Not all claims are treated similarly. Secured claims are afforded the highest priority and are secured by virtue of valid liens on the debtor’s property. Second in
Inside 5 Are You Ready to Rock—Law Jam 3 9 New Bankruptcy Rules 11 Practical Advice for Appearing in Very Busy Bankruptcy Courts 13 It’s a Good Time to Be a Bankruptcy Lawyer…Right?
priority to secured claims are administrative expense claims. Generally, administrative claims are claims incurred after the petition date for an actual, necessary expense incurred to preserve the bankruptcy estate. Following administrative claims are priority claims. Priority claims are claims that Congress has determined, based on public policy, should be paid before general unsecured claims (e.g., domestic support claims; certain wage claims; and certain tax claims). Last in the priority distribution ranking of claims are general unsecured claims. In most bankruptcy cases, the holders of unsecured claims receive a recovery equal to a small fraction of the amount of their claim. If a trade claim is secured by a valid lien, the case should be closely monitored to ensure nothing happens that negatively impacts the lien’s priority. If the trade claim is unsecured, the degree of involvement in the bankruptcy case becomes more of a cost/benefit analysis. To assist in this analysis, a party can review the debtor’s schedules to get an understanding of the debtor’s assets and liabilities and the number of claims with greater priority. Continued on Page 12
“Four Generations in the Workplace: Multi-generational Perspectives on the Practice of Law” Ethics: 1 hour August 5, 2011, Noon, at Belo Panel of speakers includes: Luther Jones, Attorney; Ike Vanden Eykel, DBA Immediate Past President; Penny Blackwell, DAYL President; Erin Callahan, Law Student, President of SMU Student Bar Association; and Cindy Pladziewicz, DBA Peer Assistance Committee Chair, Moderator Hosted by the Peer Assistance Committee