August 2022 DBA Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES |

Focus | Appellate Law/Business Litigation

August 2022 Volume 47 Number 8

Jurist of the Year – Justice Ken Molberg BY ADAM M. SWARTZ

The Honorable Ken Molberg, currently a Justice of the Fifth District Court of Appeals, is the second-ever recipient of the Dallas Bar Association’s Judge Barbara M.G. Lynn Jurist of the Year Award. Established to honor judges who make significant contributions to the legal community in North Texas, demonstrate high ideals, exemplary personal character, and judicial competence, the award emphasizes the consistency of contributions to our profession and the careers of other attorneys whom they have mentored and influenced along the way. So, what does it mean to be jurist of the year? It is more than just recognition for one revolution around the sun. More accurately, it includes recognition of the kind of jurist we are lucky to find more than once in a lifetime, those who have set themselves aside in favor of us all, time and time again; those who have sacrificed and given us their time, knowledge, creativity, determination, and inspiration. That is who Ken Molberg is. It is etched in his soul from at least 1968 when Robert F. Kennedy

Focus

was assassinated a mile-and-a-half from where he then resided. At the time, Ken Molberg and his band from Fredericksburg, The Crossfires (later, the Fountain of Youth), had done studio work with rock and roll hall of fame nominee Steppenwolf, and hall of famers the Monkees. Justice Molberg was an original guitarist on Hoyt Axton’s demo of The Pusher, later made famous by Steppenwolf. He played in impromptu pick-up sessions with Willie Nelson, Jerry Jeff Walker, and many others. As a musician, his rock-star was on the rise. How many of us would’ve given THAT up to come back home to work on social events and then go to law school? But that’s what happened and it’s almost unfathomable how much Justice Molberg has contributed in so many ways to so many lives and so many careers. He cares about the judiciary, he cares about the Bar, he cares about our communities, and has spent over 50 years proving it. Justice Molberg has been a stalwart staple of local Bar Associations, an indefatigable presence who has given his time and gifted his knowledge to his communities as a lawyer, judge, justice,

Hon. Ken Molberg

teacher, mentor, contributor, fellow, father, husband, and friend. There are few better examples of a keen mind coupled with a service heart. As DBA President Krisi Kastl puts it, “Justice Molberg believes strongly in Justice for All, exemplifying that in his practice, on the trial bench, and now the appellate bench.”

Born in Houston and raised in Fredericksburg, Justice Molberg received his Bachelor of Arts degree, with high honors, from the University of North Texas (1973), where he served as an editor-inchief of the North Texas Daily, then his J.D. from SMU (1976). While there, he was a Barrister and served as a Managing Editor the SMU Law. He began building his extensive trial law experience in 1975, obtained his law license in 1976, spent five years with the Law Offices of James C. Barber, then became a founder and shareholder in Wilson, Williams & Molberg, P.C., which dissolved some 28 years later following his election to the District Bench in 2008. Justice Molberg was named “Jurist of the Year” for 2017 by TEX-ABOTA, the statewide parent organization for the Texas chapters of the American Board of Trial Advocates, “Trial Judge of the Year” in 2011 by the American Board of Trial Advocates’ Dallas Chapter, and was named to the Dallas Bar Association Board of Directors for 2012 as the judicial representative. He is also the CONTINUED ON PAGE 22

Appellate Law/Business Litigation

Enforcing (or Escaping) “Commercially Reasonable Efforts” BY JENNIFER LAMB

By themselves, the terms “good faith,” “best efforts,” or “commercially reasonable efforts” in a contract provision will not guarantee your contract imposes an enforceable duty. There is more than meets the eye for a party to impose such a “best efforts” provision under Texas law—an effective “best efforts” provision will offer further insight into the essential terms of the contract. Many parties expressly provide for contractual performance standards given that Texas law does not impose the common law duty of good faith in ordinary, arms-length commercial transactions. A duty of good faith only arises if there is a special relationship between the parties, or if the parties expressly provide for such a duty within the contract. The absence of such concept under Texas law is no secret, and a best-efforts provision often forms the basis of a party’s claim for breach of contract. Regardless of how a party wishes to provide for a duty of good faith—by requiring “good faith,” “best efforts,” “commercially reasonable efforts,” or even “maximum effort”— Texas courts will apply a “best efforts” analy-

sis to evaluate the enforceability of the duty. Yet, despite the fact that such provisions are nearly boilerplate provisions, in the event of a dispute many best-efforts provisions fail to survive a court’s scrutiny. The enforceability of a best-efforts provision is subject to a two-step analysis promulgated by the Dallas Court of Appeals in CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577 (Tex. App.—Dallas 1991, writ denied). While the Texas Supreme Court has not addressed best efforts, the Fifth Circuit has recognized CKB & Assocs., Inc. as the instructive standard for analyzing best efforts under Texas law. See Kevin v. M. Ehringer Enters., Inc. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011). In evaluating enforceability, Texas courts first ask whether the best-efforts provision includes an “objective goal or guideline” against which a party’s conduct may be measured—a question of contract interpretation for the court. The second inquiry is whether the party met the goal. If the answer is “yes,” this would end the analysis as the complained of party’s actual level of efforts would then be irrelevant. In contrast, if a party fails to meet such goal, a Texas court asks whether the

complained of party acted as a “average, prudent, comparable operator” in the specific circumstances of the case—a question of fact for the factfinder. Although courts do not construe the terms “objective goal or guideline” narrowly, many best-efforts provisions are deficient by failing to address which task a party must use its best efforts to perform. Texas courts then commonly resort to traditional principles of contract interpretation, and will evaluate the contract as a whole to determine whether objective guidelines are specified in other provisions. So how do courts determine whether there is a sufficient goal or guideline? Texas precedent is unfortunately ambiguous. Texas courts have recognized that the concept of best efforts is a nebulous standard, which turns upon the totality of the circumstances particular to each case. While including details such as specified quantities or time limits for performance are factors that weigh in favor of the enforceability of a provision, the sufficiency of a goal or guideline does not turn on such categorical limitations. Yet in the face of the uncertain precedent, contracting parties can undoubtedly increase

Inside 6

Equal Access to Justice Campaign Co-Chairs Named

12 Drafting Proposed Orders That Are Easy to Read and Use 22 Recent Developments in Texas Personal Jurisdiction 29 Top 10 Mistakes to Avoid on Appeal

their odds of their best-efforts provision being found enforceable by being mindful of a few factors. First, a best-efforts provision should state the specific tasks that best efforts must be applied to, and to which party’s performance. Second, the provision should include a benchmark reference for what the parties intend to define “best efforts” to mean under the circumstances of the contract—will best efforts be judged by timeliness of performance, number of manufactured units, or an industry specific standard of conduct? Lastly, the higher the specified performance standard that parties wish to expressly provide for in a contract, the greater details the best-efforts provision should include to not only offer measurable objectives for evaluating a party’s performance, but also to reveal their intention and expectation for a more rigorous standard. In the event of a dispute, being mindful of the foregoing concepts while drafting a bestefforts provision will give equal advantage to the parties, whether attempting to enforce or defend against a claim grounded in a bestefforts provision. HN Jennifer Lamb is an Attorney at Platt Cheema Richmond PLLC. She can be reached at jlamb@pcrfirm.com.

The 2022 DBA Membership Directory is now available!

Check out the directory and legal resource guide used by Dallas attorneys! To request a copy of the new directory, contact pictorial@dallasbar.org.

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Programs and meetings are presented Virtually, Hybrid, or In-Person. Check the DBA Online Calendar (www.dallasbar.org) for the most up-to-date information. Programs in green are Virtual Only programs.

Calendar August Events Noon

Immigration Law Section Topic Not Yet Available

FRIDAY CLINICS

AUGUST 12

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

“An Ethics Primer for Lawyers,” Robert Tobey and Russell Wilson III. (Ethics 1.50)* Sponsored by the CLE and Minority Participation Committees.

WEDNESDAY, AUGUST 10 Noon

AUGUST 19 Noon

“Survey of Mandamus Decisions by the Texas Supreme Court,” Hon. Doug Lang. (MCLE 1.00)*

MONDAY, AUGUST 1 Noon

THURSDAY, AUGUST 4

Tax Law Section Topic Not Yet Available

8:30 a.m. Energy Law Section Seminar 37th Annual Review of Oil & Gas Law. Two-day event. For more information, or to register, log on to www.reviewofoilandgaslaw.com.

TUESDAY, AUGUST 2 Noon

Corporate Counsel Section “Get Real: An Overview of Landlord and Tenant Concerns,” Jane Lambro, Leona Hammill, and Dustin Van Dema. (MCLE 1.00)*

Noon

Tort & Insurance Practice Section “Using Extrinsic Evidence in Determining an Insurer’s Duty to Defend,” Craig Reese. (MCLE 1.00)* In person only

8:30 a.m. Energy Law Section Seminar 37th Annual Review of Oil & Gas Law. Two-day event. For more information, or to register, log on to www.reviewofoilandgaslaw.com.

WEDNESDAY, AUGUST 3 Noon

Employee Benefits & Executive Compensation Law Section “At the Intersection of Employee Benefits and Legal Ethics: The Fiduciary Exception and Other Practice Issues,” Howard Shapiro. (Ethics 1.00)* Virtual only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

Public Forum Committee. Virtual only

Alternative Dispute Resolution Section “The Changing Legal Landscape of Mediating Sexual Harassment Cases,” Karen Fitzgerald, Cecilia H. Morgan, Hon. Christine A. Nowak, and Gary Fowler, moderator. (MCLE 1.00, Ethics 0.25)* Virtual only

Noon

Business Litigation Section “Current Trends in Conflict of Interest Law,” Dan J. Boyd. (Ethics 1.00)*

Noon

Securities Section Topic Not Yet Available

Judiciary Committee. Virtual only

No DBA Events Scheduled

Publications Committee. Virtual only

WEDNESDAY, AUGUST 24 Noon

Friday Clinic “An Ethics Primer for Lawyers,” Robert Tobey and Russell Wilson III. (Ethics 1.50)* Sponsored by the CLE and Minority Participation Committees. Trial Skills Section Topic Not Yet Available

Entertainment, Arts & Sports Law Section Topic Not Yet Available 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

Noon

Labor & Employment Law Section “ESG and Employment Lawyers,” Jennifer Trulock. (MCLE 1.00)*

TUESDAY, AUGUST 16 Noon

Franchise & Distribution Law Section Topic Not Yet Available

Intellectual Property Law Section “The Holistic Brand Attorney,” Melissa Atherton, Heather Foster, Benjamin Setnick, and Marylauren Ilagan, moderator. (MCLE 1.00)*

WEDNESDAY, AUGUST 17 Energy Law Section Topic Not Yet Available

Health Law Section “Cyber Impact on Healthcare including Cybersecurity, Telehealth & DOJ Actions,” Rachel Rose and Peter Vogel. (MCLE 1.00, Ethics 0.50)* In person only

2022

Dallas Bar Association

DEI CLE Challenge The DBA encourages its members to aspire to complete 3 hours of CLE training in the areas of diversity, inclusion, and equity each calendar year. The DBA will recognize members who complete and self-report their 3 hours of DEI CLE by December 31, 2022. Programs that qualify will be identified on the DBA’s online calendar.

Join the Challenge

to be recognized in the February 2023 Headnotes, in DBA Online, and receive your electronic DEI CLE Challenge badge.

Pro Bono Activities Committee. Virtual only 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, AUGUST 18 Noon

Living Legends Program “Laura Benitez Geisler, interviewed by Chandler

Criminal Law Section “Potential Case Dismissal! Pre-Trial Diversion Referral Process,” Crystal Garland, Laura Edmonds, and Julie Turnbull. (MCLE 1.00)* Environmental Law Section Topic Not Yet Available

Community Involvement Committee. Virtual only

Noon

Collaborative Law Section Topic Not Yet Available

THURSDAY, AUGUST 25

MONDAY, AUGUST 15 Noon

Science & Technology Law Section Topic Not Yet Available

TUESDAY, AUGUST 23

CLE Committee. Virtual only

FRIDAY, AUGUST 12 Noon

Friday Clinic “Survey of Mandamus Decisions by the Texas Supreme Court,” Hon. Doug Lang. (MCLE 1.00)*

MONDAY, AUGUST 22 Noon

THURSDAY, AUGUST 11

Peer Assistance Committee. In person only

TUESDAY, AUGUST 9

FRIDAY, AUGUST 19

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

MONDAY, AUGUST 8 Noon

Bankruptcy & Commercial Law Section Topic Not Yet Available Bench Bar Conference Committee. Virtual only

FRIDAY, AUGUST 5

Allied Bars Equality Committee. In person only Child Welfare & Juvenile Justice Committee. Virtual only

Construction Law Section Topic Not Yet Available

Winslow and Nikki Chriesman-Green. (Ethics 1.00)* Sponsored by GoransonBainAusley. Virtual Only

Minority Participation Committee. Virtual only

FRIDAY, AUGUST 26 No DBA Events Scheduled

MONDAY, AUGUST 29 No DBA Events Scheduled

TUESDAY, AUGUST 30 No DBA Events Scheduled

WEDNESDAY, AUGUST 31

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

Thursday, August 18 | Noon - 1:00 PM MCLE: 1.00 Ethics Hosted virtually on Zoom. Register at Dallasbar.org.

Scan to learn more and report your hours.

Laura Benitez Geisler Sommerman, McCaffity, Quesada & Geisler, L.L.P.

Interviewed by Chandler Winslow, GoransonBain Ausley PLLC and Nikki Chriesman-Green, Foster & Foster Sponsored by

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 the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.

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D al l as Bar A ssoci ati on l Headnotes 3

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President’s Column

Headnotes

Continued Education BY KRISI KASTL

“Educating the mind without educating the heart is no education at all.” –Aristotle

This valuable skill is echoed in Beverly Godbey. She was the DBA’s 98th president and sixth female president in 2007. Godbey currently practices law at Amy Stewart PC in Dallas where she advises insurance policyholders on a variety of coverage matters. Being a stalwart advocate is important to her. She has a rich history of representing corporate clients in complex commercial litigation, personal injury claims, product liability actions, trade secret cases, and professional malpractice claims. Her vital work has garnered many accolades including being named by her peers to D Magazines’ List of Best Lawyers in America. She is also included in the annual listing of Texas Super Lawyers published by Thomas Reuters. Godbey gave a voice to the voiceless with her pro bono legal services. Her generosity has garnered awards for her volunteer work, including the Equal Access to Justice Rainmaker Award, the Pro Bono Appreciation Award, the Jurisprudence Award from the Anti-Defamation League, and the Dallas Bar Foundation’s Justinian Award. Her year as DBA president was unique for women—as women also were presidents of the State Bar of Texas, the Sister Bar Associations, and the American Bar Association.

Continued Learning

Although my scholastic days are behind me, the start of the academic calendar feels like a new beginning. The heat of summer is winding down and the hallways of our Dallas schools will be lit with conversations as students return to the classroom. It is a time where we can dig deeper and reassess with the curiosity of a student ready to learn. The DBA encourages learning by partnering with the Dallas Independent School district for our Summer Law Intern Program (SLIP). Through SLIP, we place high school students with law firms and corporate legal departments throughout Dallas for up to eight weeks in the summer. Alison Battiste Clement has been an exemplary leader of a powerhouse educational team including Erika Fadel, Ed Hart, and staff liaison Melissa Garcia. Learn more at www.dallasbar.org/?pg=Committees Kastl Law, P.C. has been blessed with many exceptional interns through this program including the genetic power team of Esmerelda Blas and her sister Leslie. Leslie was a rising high school senior when she came to us and is now a junior at Wellesley College. Esmerelda is working on her masters and has her degree in accounting. Both Leslie and Esmerelda return every summer. The summer interns at Kastl Law, P.C. remind me of the transformative time when I was fresh out of law school. The camaraderie and mentorship went beyond the classroom lessons. I fondly recall my introduction to depositions, jury selection,

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: Krisi Kastl President-Elect: Cheryl Camin Murray First Vice President: Bill Mateja Second Vice President: Vicki D. Blanton Secretary-Treasurer: Liz Cedillo-Pereira Immediate Past President: Aaron Z. Tobin

I hold this quote deep in my heart and strive daily to live its message in my practice and my daily interactions. I am reminded that as an attorney we are agents of change responsible for advocating for our clients at their most vulnerable. Respecting people through active listening and empathy is the lifeblood of our calling and when I become frustrated with the process, this quote leads me to recalibrate. It is very important to get a clear idea of the emotional and physical havoc that brought the client to the litigation process. The depth of emotion that I have witnessed has connected me to my clients in a profound way. I know if I am connected, the jurors will be too.

Beverly Godbey

Published by: DALLAS BAR ASSOCIATION

Directors: Lauren Black, Rob Cañas, Jonathan Childers (Chair), Stephanie G. Culpepper, Rocio Garcia Espinoza, Hon. Dennise Garcia, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Andrew Jee, Andy Jones (President, Dallas Association of Young Lawyers), Jennifer King, Jonathan Koh (President, Dallas Asian American Bar Association), Elsa Manzanares (President, Dallas Hispanic Bar Association), Hon. Audrey Moorehead, Timothy Newman, Marisa O’Sullivan (President, Dallas Women Lawyers Association), Kelly Rentzel, Sarah Rogers (Vice Chair), Drew Spaniol, and Amy M. Stewart

and client interactions. The mentorship I received inspired me to encourage law students to intern at my firm in the summer. The energy of Kastl Law, P.C. was infused by the presence of Leslie Garza, Dean Goodrich, and Sydney Senter. Leslie Garza grew up wanting to help people obtain the resources and tools they needed to succeed in times of hardship. She knew the best way to serve was by becoming an attorney. She took three years off after graduating from college and emerged herself in the political sphere. Leslie’s call to action inspired her to work for the attorney and Texas State Representative Victoria Neave. She worked hand in hand with Neave’s constituents, striving to bring about change. Those years clarified her desire to become a lawyer and she enrolled in SMU Dedman School of Law, graduating in 2024. Dean Goodrich also said yes to a passion for advocacy through the law. His undergraduate degree is in Petroleum Engineering. He worked for a year as an engineer but felt that something was lacking. Although he appreciated the technology and experience, a call to support his success was bubbling. Dean recognized that “success” is a fluid concept encompassing many attributes. He is set to graduate in 2024 also from SMU Dedman School of Law. Sydney Senter is also a member of the Class of 2024 and is pursuing her law degree at St. Mary’s University in San Antonio. In 2019, she made a life-changing decision to study in Rome. While in Rome, she helped African refugees adjust to their new Italian home after suffering great atrocities in their homeland. This sacred work affirmed her desire to aid vulnerable populations, and led her to enroll in law school. Leslie, Dean, and Syndey deeply valued their time as interns and were struck by the frenetic pace of the system. They were all able to jump into relationships with clients, cultivating a sense of who they are beyond the words in their case files. As interns, they were able to experience all areas of the system beyond what is in their textbooks. I have learned from them as well. I appreciate their sense of work-life balance. The interns I have worked with are extraordinarily motivated and confident in their value system. Their continued drive to obtain their goals paves the way for future success.

Looking Ahead

August has ample opportunities to learn. The DBA has done an exceptional job of offering fascinating CLEs and workshops that allow us to broaden our perspectives of the wide legal world. With this new frontier, comes a golden chance to thrive. Please check out our offerings www.dallasbar.org Relish what is left of summer. Krisi

Advisory Directors: Alison Ashmore (President-Elect, Dallas Women Lawyers Association), Callie Butcher (President, Dallas LGBT Bar Association), Carla Green (President-Elect, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President-Elect, J.L. Turner Legal Association), Nicole Munoz Huschka (PresidentElect, Dallas Association of Young Lawyers), and Janet Smith (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Mary Scott, Paul Stafford, Robert Tobey, Aaron Tobin HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Joshua Smeltzer Vice-Chairs: Elisaveta (Leiza) Dolghih and Ted Huffman Members: Logan Adcock, Benjamin Agree, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Gracen Daniel, Lindsay Drennan, Alexander Farr, Dawn Fowler, Neil Issar, Beth Johnson, Andrew Jones, Alexandra Jones, Krisi Kastl, Jon Kettles, Brian King, Jared Knight, John Koetter, Alan Lightfoot, Margaret Lyle, Derek McKee, Majed Nachawati, D. Mason Parham, Keith Pillers, David Ritter, Carl Roberts, Sarah Rogers, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Jessie Smith Legal Education Coordinator: Viridiana Rodriguez Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Elizabeth Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Interviewer: Giovanna Alvarado LRS Program Assistant: Marcela Mejia Marketing Coordinator: Mary Ellen Johnson Membership Director: Shawna Bush Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos Texas High School Mock Trial & Law Related Education Director: Melissa Garcia DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Program Assistant: Laci Payton Secretary: Charnese Garrett Copyright Dallas Bar Association 2022. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 800 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 $4.00, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

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D al l as Bar A ssoci ati on l Headnotes 5

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Equal Access to Justice Campaign Co-Chairs Named STAFF REPORT

Stephanie Culpepper and Yuki Whitmire have been named Co-Chairs of the 2022-2023 Equal Access to Justice (EAJ) Campaign benefiting the Dallas Volunteer Attorney Program (DVAP). Stephanie Gause Culpepper is Senior Director and Senior Managing Counsel at Lument, the real estate investment arm of ORIX Corporation USA. In this role she counsels multiple businesses with respect to all legal aspects of real estate financing transactions for Lument and ORIX’s lending, investing and asset management activities. “I am excited to be serving as Co-Chair of the EAJ Campaign as a way of making a direct impact on the lives of women in our community,” said Mrs. Culpepper. “With nearly 70 percent of DVAP’s clients being women, funds raised will provide at-risk women with access to legal aid in the issue areas of family safety, shelter, and other essentials. The needs of our most vulnerable are greater than ever and I believe supporting and empowering women will yield stronger

Stephanie Culpepper

Yuki Whitmire

communities. As lawyers we are well positioned to do our part to help others who may be struggling.” Yuki Whitmire is Vice President, Associate General Counsel, Securities Law and Corporate Transactions, and Corporate Secretary at Vistra Corp. She supports the company’s leadership and Board of Directors with respect to the company’s corporate governance, securities laws and NYSE obligations,

public reporting, mergers and acquisitions, financing, and other corporate transactions. Prior to her current role, Whitmire was Associate General Counsel and Corporate Secretary at Arcosa, Inc., a provider of infrastructure-related products and solutions, where she started at the time of its spin-off and public listing on the NYSE. She has over 15 years of experience in both private practice and in-house, across a broad range of corporate matters including securities,

governance, mergers, acquisitions, and transactions. “The EAJ Campaign is truly a remarkable collective effort of lawyers, law firms, and corporations in our Dallas legal community,” said Ms. Whitmire. “Last year, their donations raised over $1.3 million for the campaign, and this translates into real-world, life-changing legal aid services for thousands of individuals who are most in need in our community. Without the support from generous donors, these services would not be possible. Unfortunately, the need in our community vastly exceeds currently available services, so it’s imperative that we continue to support and expand the reach of the EAJ Campaign. I am honored and excited to Co-Chair the EAJ Campaign this year and continue this critical work.” The Chairs will be assisted by Co-Vice Chairs Rachel Morgan, of Nexstar Media Group, Inc., Sarah Rogers, of Thompson Coe, and Julie Ungerman, of Toyota Legal One. The Campaign will culminate at the Inaugural of 2023 DBA President Cheryl Camin Murry. HN

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

JUSTICE SERVES THREE THINGS: The victim. The family that remains. And the laws it will change.

WE FIGHT FOR THEM ALL.

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

Focus

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Appellate Law/Business Litigation

Crafting Tailored Protective Orders for Early Entry BY GRACEN DANIEL AND MICHAEL BARBEE

Given Rule 194 disclosures are now due within 30 days after the first answer is filed, protection of valuable and competitively sensitive information takes center-stage at the outset of a case. Although management of this confidential information is at the heart of many business disputes, attorneys often rely on “one-size-fits-all” forms rather than crafting protective orders tailored to the dispute. To avoid future headaches, attorneys should carefully review and modify form protective orders before submitting them to the court for entry.

Enter Protective Orders Early

Rule 194.2 requires parties to produce, within 30 days after the first answer is filed, a copy—or a description by category and location—of all documents they may use to support their claims or defenses. In commercial and trade secret litigation, this requirement fast-tracks the disclosure of sensitive documents, either through production with

a party’s initial disclosures or through subsequent requests for production directed to the categories described in the disclosures. To facilitate expedited production of confidential information, attorneys should consider entry of a protective order—agreed or otherwise—at the outset of a case.

Tailor Definitions to the Dispute

While protective orders govern almost every phase of a business case, attorneys can get stuck with drafter’s remorse by overlooking seemingly innocuous but key provisions. One is the definition of confidential information. It should generally be broad enough to contemplate the categories of confidential information discoverable in the case, but narrow enough to warrant the requested protection. Using Texas Rule of Evidence 507’s definition of “trade secret,” for example, may be too narrow in some cases because the confidential information may not qualify as trade secret. On the other hand, defining confidential information broadly to mean all non-publicly available information, for example, may allow an unwarranted carte blanche desig-

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nation. This balancing act applies equally to defining what constitutes “attorneys’ eyes only” information in multi-tiered protective orders, which often award additional protection to information a party deems “highly sensitive.” And it is especially important when sensitive source code is involved. To avoid (or at least limit) over-designation disputes, drafters should contextualize these definitions early on for the immediate matter, and tailor them to the types of information that may apply to both parties.

Address Retroactive and Non-Party Designations

The designation procedure for protected material, including considerations for inadvertent failure to designate and for designation of non-party documents is another key provision attorneys should not overlook. The protective order should address retroactive designation, when and how such late designation becomes effective, and any waiver concerns. It should also account for the possibility that non-parties will produce documents in the case. This calls for consideration of how non-parties will be informed of the protective order, whether and how they are afforded the protections of the protective order (e.g., signing an undertaking), and whether documents they produce should be protected for a set period to allow the parties time to designate them if applicable.

Specify Procedures for Challenging Designations

Attorneys drafting tailored protective orders should also pay close attention to the procedure for challenging designations,

as it is likely to be invoked at some point. Protective orders typically allow the receiving party to notify the producing party that it challenges a designation, and then gives the producing party a specified number of days to respond before the issue may be presented to the court. Drafters should specify when, how, and who (receiving or producing party) should seek an order on the disputed designation and should account for how contested designations are treated pending a ruling. These procedures may also require adjustment to account for any local or court rules, including any meet-and-confer requirements.

Define Permissible Use of Confidential Information

It seems simple, but protective orders should also have specific, permissible uses for protected materials. Many protective orders allow use of protected materials only in the immediate litigation. But given some business disputes involve ancillary litigation, ongoing business relationships, or related entities, the parties should consider whether broadening the scope of permissible uses makes sense. Protective orders can be a hassle down the road if they are poorly drafted. While later modification is an option, squaring away this necessary and vital tool in business litigation from the start is best practice. Attorneys should take a critical review of their current forms and prepare to enter tailored orders at the initial disclosure phase of a case. HN

Gracen Daniel and Michael Barbee are commercial and intellectual property litigators at Griffith Barbee PLLC. They can be reached at gracen.daniel@griffithbarbee.com and michael.barbee@ griffithbarbee.com, respectively.

Congratulations

Welcome

J. Brooks Durham

Ashley N. Harrison

bdurham@minceycarter.com

aharrison@minceycarter.com

Promoted to Shareholder

12221 Merit Drive, Suite 200, Dallas TX 75251 (469) 916-1980 | www.minceycarter.com

Associate

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

IP LITIGATION + COMMERCIAL LITIGATION

10 H e a d n o t e s l D a l l a s B a r A s s ociation

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Appellate Law/Business Litigation

What Happens to Your Appeal Once You File It? BY BILL WHITEHILL

During normal years, Texas appellate courts are busy, collectively disposing of roughly 10,000 cases (although the pandemic and declining criminal appeals have recently lowered that number). Each justice authors more than sixty majority opinions per year while managing separate opinions, motions, and other activities. The Dallas Court typically disposes of between 1,700 and 2,000 per year. How do they do it? When a new direct appeal is filed, Court staff determines whether there is an apparent jurisdiction (or other) defect to be addressed. Staff also monitor cases to ensure that the record and briefs are timely filed and keep the case on track. A case is ripe for disposition once the appellee’s brief is filed or the time for doing so has passed. At that point, an oral argument committee, including staff and justices, reviews cases to decide which ones are set for oral argument. The

chances for oral argument are high if both sides request it. Rarely will a case receive oral argument if neither side requests it. The committee considers various factors, including the number and complexity of issues and record size. From there, staff assigns cases to an oral argument or no oral argument (NORA) docket for submission. A case is deemed submitted once the oral argument occurs or its NORA docket date passes. The Court normally conducts four direct appeal docket rotations per court year, which runs from September 1 to August 31. Each rotation goes through two docket cycles. Each cycle usually has three oral argument weeks and one NORA submission week. Depending on the number of filings, the Court may adjust rotations, docket settings, or the number of cases on a docket. The Court does not hear oral arguments in the summer so the Justices can complete opinions assigned that year. The legislature expects the Court to dispose of as many cases as it

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receives that year. The Court hears oral arguments in panels of three on Tuesday and Wednesday morning and afternoon settings. A civil docket normally sets three cases to be heard at one-hour intervals. For example, a morning session sets cases beginning at 9:00 and afternoon settings begin at 1:00. Because criminal appellants often waive argument on short notice, a criminal docket sets up to six cases for the same time. Rarely do all six criminal cases set for oral argument actually go to oral argument, and those that do often do not extend for the entire allotted time. Unlike some sister courts, the Dallas Justices do not formally confer or exchange memoranda before oral arguments. Instead, the panel meets immediately after oral argument, discusses the cases, and votes on tentative outcomes. The Justices then “assign” oral argument opinions through a pick order system whereby they pick the case they want to write the opinion for. Picks are divided by first, second, and third picks. The pick order rotates each week. For example, on week one a Justice may have the first pick, the next week she, has the third pick, and the following week she has the second pick. This happens twice each rotation. A swap happens if there is a disagreement on a decision that affects a Justice’s ability to select a case she would otherwise choose. Central staff randomly assigns cases to dockets according to an estimated pick quality, which is based on the type of case, number and complexity of issues, and record size. Pick quality is not based on a potential outcome, and sometimes

a first or second pick case may be harder to decide than a third pick case. Docket assignments are done blindly so cases are assigned to panels without regard to who the panel members are. The goal is to equally distribute the workload among all Justices throughout the year. The Court uses a similar process for assigning NORA cases, except staff assigns those cases to the Justices on a rotating but blind basis. Once a case is submitted, the author and his or her chambers prepare a draft that is circulated to the other panel members to comment and vote on. It is common for Justices to continue discussing difficult cases before and after a draft is circulated. An opinion is not “final” until it is released, and even then, it is subject to change based on a rehearing motion. Mandamus and other writs are decided by a writ panel. Panel members change every month, and a panel is responsible for the petitions filed that month. Staff reviews petitions to determine whether they are filed properly and require immediate attention. Staff then distributes the information to the panel for consideration and a vote. Once the panel decides a petition, staff prepares brief opinions and a Justice prepares a more complicated opinion. Petition assignments rotate among the panel similar to NORA assignments. Because the number and nature of cases filed varies over time, this article is only a general discussion. The entire Court staff and Justices work hard to resolve cases fairly, correctly, and expeditiously. HN Bill Whitehill, former Justice on the Texas Fifth District Court of Appeals, is a Member of Condon Tobin Sladek Thornton Nerenberg PLLC. He can be reached at bwhitehill@condontobin.com.

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TEXAS CHAPTER The The Academy Academy is is pleased pleased to to recognize recognize our our Dallas Dallas Metro-Area Metro-Area Members Members for for

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

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Appellate Law/Business Litigation

Drafting Proposed Orders That Are Easy to Read and Use BY STACY R. OBENHAUS

The local rules of most trial courts require counsel to submit, with nearly every motion filed, a proposed order granting the relief sought. This often requires the preparation of a fairly simple document, such as an order that “the defendant’s motion for continuance is denied” or “plaintiff ’s fraud claims are dismissed.” But counsel occasionally must draft a more complicated order, like one combining declaratory relief and damages with appointment of a receiver. In all such instances, counsel should consider not just the substance of the relief granted but also the form of the order—specifically, by making the document easy to read and use. It should be easy to read and use when discussing it on the record at a hearing; or negotiating with counsel regarding the form of the order; or working with a constable; or briefing the merits in a court of appeals. The common-sense principle for making the proposed order (or

judgment) easy to use for these purposes is to make it brief, simple, and precise. Here are five suggestions on how to do that. First, draft only a very brief recital. There is no need to include information apparent from the record; in fact, no rule or case law requires a recital. So, it may suffice to simply state: “After a hearing on the matters below, this Court rules as follows . . .” One sees simple recitals like this in many federal court orders. By all means include important matters not apparent from the record—like the date of a hearing, or that the court heard argument only. But if the record is otherwise plain, a judgment is generally sufficient if it recites: “Based on the jury’s verdict filed with this Court on March 12, 2022, this Court renders final judgment as follows: . . .” Second, use numbered paragraphs/ subparagraphs. This helps immensely in discussions at a hearing—“Your Honor, we object to Paragraph 4(b)”— in a post-judgment motion—“The

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interest calculation in paragraph 4(b) should be $1,242, not $1,850”—or in conversations with a constable— “Seize the boat in paragraph 5(a), not the boat in paragraph 5(d).” Using numbered paragraphs is particularly helpful if the order addresses several parties or remedies. Third, you need not use that “ordered, adjudged, and decreed” language you see in those orders on your firm’s word processing system drafted by lawyers who began practicing in the 1980s. Try this: “This Court rules as follows: . . .” or “This Court issues the following order: . . .” Say it just once, at the beginning. You could draft a proper and effective order that, even without a recital, says nothing more than: “This Court grants plaintiff ’s summary judgment motion, so all fraud claims are dismissed.” In short, do not be afraid to jettison formalities and get right to the point with an economy of language. Fourth, ensure that you have sufficient precision. If the order determines a motion, refer to the motion using its exact title and the date you filed it (in state court) or its docket number (in federal court). Your case may have eleven separate motions, crossmotions, and supplemental motions pending at any given time, with each seeking a partial summary judgment on some discrete part of the case. A case may have two dozen motions to compel discovery. So (a) identify specifically what motion your order concerns, (b) say that the motion is granted, denied,

or granted in part as set forth below, and then (c) set out the precise relief granted. This last step—setting out the precise relief granted—can be a challenge in a complicated case. Of course, precision is critical with injunctive relief— which must be framed using “definite and specific” mandates so the enjoined parties will know what conduct the court has prohibited. The same is true with declaratory relief that addresses, e.g., property division, percentage mineral interests, or visitation rights. So, the fifth point is this: spell it out. Do not make your client, a judge, or your partner search through your motion to determine what relief was granted. Say: “Within 30 days from the date that this order is signed, Lone Star Ltd. shall serve answers to Interrogatory Nos. 8, 9, and 11 in Defendant’s Third Interrogatories to Lone Star Ltd. (served Mar. 11, 2021).” Or say: “This Court renders summary judgment that Alamo Holdings LP take nothing on its fraud claims.” In short, draft with simplicity but with sufficient clarity that a layperson, a constable, or another court will not have to speculate as to exactly what relief the trial court intended to grant. Your proposed order will have many uses, especially if the judge signs it! If your order is simple, precise, and easy to read, it will be easy to use. HN Stacy R. Obenhaus is Of Counsel, Foley & Lardner LLP and can be reached at sobenhaus@foley.com.

2022 AL ELLIS COMMUNITY INVOLVEMENT AWARD

MARTIN

MERRITT

Health Law and Healthcare Litigation

Do you know a DBA member in the practice of law who goes above and beyond in the service of others? Nominate them for the 2022 Al Ellis Community Involvement Award.

“I highly recommend Martin As Co-Counsel in Healthcare Litigation Cases.” --Brad Jackson/ Commercial Litigator, Dallas •

Healthcare Trials/Hearings

•

Analysis of Illegal “kickback” contracts

•

Enforceability of 15.50 Non-Competes

•

Insurance “Clawbacks”

•

FBI, OIG, CMS Investigations

•

Medical License Revocations

Martin Merritt Chair, DBA Health Law (2021) Ex. Dir. Texas Health Lawyers Association Martin@MartinMerritt.com Dir. (214) 952.1279 Martin Merritt is your co-counsel in healthcare litigation cases. If one side has an experienced health lawyer in their firm and you do not, you can level the playing field by associating Martin Merritt as co-counsel. You keep the client. Hourly and flat monthly rates available. Martin can try the case, prepare and argue hearings, or simply serve as health law analyst. You stay in control of the case and keep the client. Experienced. Over 30 years, in Texas and nationally, Martin Merritt litigates cases against the FBI, DEA, OIG, CMS, AUSA, TMB, Tex. OAG, Tex. Med. Bd, Pharm. Bd., TXDSHS, Civil False Claims Act Subpoenas and lawsuits, civil investigative demands, arbitration, criminal and other administrative actions. He has a proven track record applying this knowledge to win victories for business litigators. (D Mag. Best 2018, 2020, 2022)

Nomination Deadline: August 31 Nominate at tinyurl.com/AlEllisAwardNomination

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

Lifestyle Family Lo ve

Hap pin e

rty Entre e p o r pr P e s s

ildren y Ch ealth ur H ne

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Hon. Harlin Hale Summer Fellowship Created BY MEGAN CLONTZ

The Dallas Bar Association’s Bankruptcy & Commercial Law Section, in collaboration with the John C. Ford American Inn of Court, and the Bankruptcy Court for the Northern District of Texas, celebrated Judge Harlin Dewayne (“Cooter”) Hale (Ret.) and his exceptional career through a retirement celebration on June 16, 2022. The retirement event followed the Northern District of Texas’s Bankruptcy Bench Bar Conference and featured a Louisiana-style brass band, Cajun cuisine, and white handkerchiefs to wave in celebration of Judge Hale and his Louisiana roots. Speakers included Chief Judge Alan S. Trust, of the Bankruptcy Court for the Eastern District of New York, Chief Judge Stacey G. C. Jernigan, and Judge Michelle V. Larson, of the Bankruptcy Court for the Northern District of Texas, Rob Colwell, Laurie Rea, Stephen Manz, Gwendolyn Hunt, J. Mark Chevallier, and Judge Hale’s sons, George and Maj. John Ben Hale. Approximately 600 attorneys, professionals, and guests attended the event to congratulate and celebrate Judge Hale. In conjunction with the event, the DBA Bankruptcy & Commercial Law Section announced the creation and full endowment of the Honorable Harlin Dewayne (“Cooter”) Hale (Ret.) Summer Fellowship in honor of Judge Hale and his immense contributions to the Bankruptcy Bar, and particularly to law students, externs, interns, clerks, and young lawyers, over the course of his career. This six-week Fellowship was established at the Dallas Bar Foundation by the Bankruptcy & Commercial Law Section and funded with generous donations from the greater Bankruptcy Bar. Judge Hale began his storied career as a Law Clerk for the Honorable James L. Dennis of the Louisiana Supreme Court, after which he moved to Dallas during the

Judge Harlin Dewayne (“Cooter”) Hale (Ret.)

oil and gas boom (and later bust) to work for Strasburger & Price, LLP. He then cofounded a firm that later became McGuire, Craddock, Strother & Hale, P.C. and was an International Partner at Baker & McKenzie, LLP prior to his appointment to the Bankruptcy Court for the Northern District of Texas in 2002. A champion for young lawyers, Judge Hale is a Founding Member of the John C. Ford American Inn of Court and has been instrumental in the creation and success of several programs designed to promote growth and mentorship within the Bankruptcy Bar, including the Inn’s Breakfast with the Judge, Future Leaders, and William J. Rochelle, Jr. Advanced Chapter 11 Course programs, the State Bar of Texas Bankruptcy Section’s Starting Out Right program, and numerous other programs sponsored by local and national bar associations. Judge Hale has formally mentored more than 150 student externs in his time on the bench, in addition to countless law students, clerks, attorneys, and judges

DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations

When you need a number call our number

throughout his legal career. He also teaches the Creditors’ Rights course as a Visiting Professor at the SMU Dedman School of Law, enthusiastically introducing a new crop of law students to bankruptcy practice each year. Inside and outside of the courtroom, Judge Hale is a steadfast proponent of “paying it forward” and has dedicated countless hours to bankruptcy bench-bar and educational programs, focusing not only on the law, but also on character, integrity, civility, fairness, and empathy through programming and by example. The Honorable Harlin Dewayne (“Cooter”) Hale (Ret.) Summer Fellowship will be awarded annually to one

student who will have completed their first or second year of law school and consists of a six-week summer internship with the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, rotating among the judges, and a $5,000 stipend. The application period will open in the early spring of each year, and the successful applicant will be selected by the DBA’s Bankruptcy & Commercial Law Section, in consultation with the judges of the United States Bankruptcy Court for Northern District of Texas, Dallas Division. HN Megan Clontz is an Attorney at Spencer Fane LLP and can be reached at mclontz@spencerfane.com.

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

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D al l as Bar A ssoci ati on l Headnotes 15

KOONSFULLER SHAREHOLDERS LEFT TO RIGHT:

R1: Neda Garrett,* Brian Loughmiller,* Liz Porter,* Charla Bradshaw,* Ike Vanden Eykel,* Rick Robertson,* Heather King,* Jessica Janicek,* and Julie Crawford* R2: Dana Manry,* Sean Abeyta,* Jessica Perroni,* Sally Pretorius,* Chris Meuse,* Fred Adams,* Rob McEwan,* Laura S. Hayes,* and Kevin Segler*

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KO O N S F U L L E R : D I V O R C E , C H I L D C U S T O D Y, P O S T- D I V O R C E M O D I F I C AT I O N S , C H I L D S U P P O R T, M A R I TA L P R O P E R T Y A G R E E M E N T S , E N F O R C E M E N T S , G R A N D P A R E N T S ’ R I G H T S , P A T E R N I T Y, C O L L A B O R A T I V E L A W , A N D A P P E A L S

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

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DBA We Lead: What’s Your Story? gram directors, Ophelia Camiña and Lisa Tomiko Blackburn, along with the assistance of many others who have made this program a success year after year. In my experience, WE LEAD has been an incredible way to build leaders by helping us tell stories, network, and connect.

BY SABA F. SYED

This year my firm Bell Nunnally & Martin LLP elected me to partnership. The first year of partnership is an important milestone for an attorney, but I also knew it could present challenging transitions. And I was keenly aware of the opportunities and challenges facing women in the practice of law. After becoming a partner, my firm leadership and several members of the Dallas Bar encouraged me to apply to DBA WE (Women Empowered) LEAD. I was not sure what to expect when I started WE LEAD, but I was not disappointed. The DBA’s award-winning WE LEAD program is designed to help women lawyers thrive and lead in the legal community. The mission is simple yet effective. Empower, educate, and uplift women lawyers to take an already successful career to new heights. WE LEAD focuses on women lawyers who have been practicing from 8 to 15 years. The one-year program comprises of four half-day sessions, in addition to happy hours, volunteer projects, and mentoring circles. The

Story Telling

Saba Syed

time commitment and advance notice makes this program manageable for even the busiest lawyers, including those who may be caretakers. As a member of the fifth cohort for DBA WE LEAD, I enjoyed seeing WE LEAD’s mission put into practice under the current leadership of this year’s pro-

Client Development—Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@dallasbar.org. Submissions will be discussed at monthly CLE Committee meetings.

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Whether she is looking for a promotion, new job, or clients, every lawyer needs to be able to tell her story. What’s your story? That’s the question our class was tasked with answering in a WE LEAD session with Shelly Slater, of Shelly Slater Strategies. Ms. Slater broke down the art of telling stories, particularly stories about ourselves. My favorite takeaway was the “less is more” philosophy. A short statement about you (think Nike’s “Just Do It”) can go a long way in making your story memorable. But telling a story about yourself requires you to know yourself. That’s where the Gallup Clifton StrengthFinder’s test comes in. I enjoyed learning about each member’s unique strengths and the sheer variety of skills in our 27-member class. WE LEAD helped the members take a step back and see the unique skills they offered and how to craft a compelling story to their audience.

Networking

WE LEAD offered sessions on networking that were tailored to the specific needs of our members. There was a session for outside counsel track lawyers, led by Jeffrey Miller, of Kohn Communications. Outside counsel attorneys learned concrete tips on how to build on their list of clients and increase business. The WE LEAD inside counsel counterparts attended a separate session on speed mentoring with in house attorneys

led by Dena Stroh, ofNorth Texas Toll Authority. I especially enjoyed the inhouse panel with Ms. Stroh, Jenny Gray, of Tuesday Morning, Julianne Leggatt, ofForterra, Inc., and Olesja Cormney, of Toyota Motor North America, Inc. The panelists shared valuable guidance to inhouse and outside counsel alike. There were some excellent takeaways, including my favorite insight, which is to be a “go giver” rather than a “go getter.” Attorneys may have gone to law school to study law, but few of us went to school to learn networking. Instead, learning this critical skill is often relegated to the brief moments we get between juggling busy careers and personal lives. WE LEAD carves out time to develop networking skills for its members in an interactive and supportive environment.

Connection

One of the most meaningful parts of the program has been developing personal relationships with my fellow WE LEAD members. In addition to the quarterly sessions, there are monthly virtual meet ups where the members can get to know each other in a smaller group setting. I also enjoyed the “Power Hour” at the start of each session where the members celebrate successes, and share in each other’s challenges. It was incredible to see the range of experience from solo practitioners to law partners to government lawyers, each excelling in their own unique ways and working through challenges together. If you are reaching a milestone in your career, or could just use a little extra support, you should consider applying. Applications for the 2023 cohort are now open. HN

Saba F. Syed is a Partner at Bell Nunnally & Martin LLP. She may be reached at ssyed@bellnunnally.com.

D BA W E L E A D WOMEN EMPOWERED TO LEAD APPLY NOW! DBA WE LEAD (Women Empowered to Lead in the Legal Profession) is a leadership program designed to address the challenges of high-performing women who have practiced law for 8 to 15 years. WHO DBA WE LEAD is accepting applications from women lawyers who graduated from law school between 2007 and 2014, have established themselves in their careers and communities, and want to further explore advancement opportunities and leadership skills. WHEN DBA WE LEAD runs from February 2023 to November 2023 and includes four half-day sessions with mandatory attendance.

Cost: $1,000 Application Deadline: December 1, 2022

TAKE A TOUR! Email us at Brendag@wturley.com or call 214-382-4118

Need-based scholarships are available

For information and online application visit: www.tinyurl.com/2023DBAWELEAD Questions? Contact Judi Smalling at jsmalling@dallasbar.org.

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

2022 DBA 100 CLUB MEMBERS – THANK YOU! The Dallas Bar Association is proud to recognize our 2022 DBA 100 Club members. The following firms, government agencies, organizations/schools and corporate legal departments have 100% membership in the DBA. The DBA 100 Club is a distinguished membership recognition category that reflects a commitment to the advancement of the legal profession and involvement in the community. The DBA 100 Club consists of firms with two or more attorneys as well as corporate legal departments, organizations, law schools and government agencies that have 100% membership in the DBA. Recognition is free and given to the 2022 DBA 100 Club members at DallasBar.org, in our Headnotes publication, at our Annual Meeting in the fall and in the 2023 DBA Membership Directory. Please note that the DBA 100 Club is FREE recognition and open for renewal annually. We do not automatically renew an organization’s membership due to changes in attorney rosters each year. It is not too late! To become a 2022 DBA 100 Club member, submit your request via email and include a list of all lawyers in your Dallas area office to Shawna Bush, sbush@dallasbar.org. Your list will be verified with our member records, and if eligible, your firm will be added to the 2022 DBA 100 Club!

THANK YOU FOR YOUR SUPPORT OF THE DALLAS BAR ASSOCIATION! DBA 100 Club Members as of July 18, 2022 2 to 5 Attorneys Adair, Morris & Osborn, P.C. Adam L. Seidel, P.C. Addison Law Firm P.C. Adkins Lawyers, PLLC Akere & Akere P.C. Albert & Stowe, PLLC Aldous \ Walker LLP Alexander Dubose & Jefferson LLP Allmand Law Firm, PLLC Anderson Grossman PLLC Arnold & Freeman Ashcraft Law Firm Atwood Gameros LLP Avant Law Firm Ayres Law Office, P.C. Balekian Hayes, PLLC Barbee & Gehrt, L.L.P. Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Booth Albanesi Schroeder PLLC Bower PLLC Braziel Dixon, LLP Bressler, Amery & Ross PC Briner Family Law Group Broden & Mickelsen Brousseau Naftis & Massingill, P.C. Buether Joe & Counselors, LLC Calabrese Budner LLP Campbell & Associates Law Firm, P.C. Capshaw & Associates Chen Dotson, PLLC Chris Lewis & Associates, P.C. Clark Law Firm Coleman & Jackson, P.C. Crain Brogdon, LLP Davis Stephenson, PLLC Deans Stepp Law, LLP Dedman Law, PLLC Duke Seth, PLLC Dyer & Mauro, PLLC Epstein Family Law, P.C. Equal Justice Law Group, PLLC Fisher & Welch, P.C. Flournoy McLain, P.C. Fuller Mediations FurgesonMalouf Law PLLC G.J. Chavez & Associates, P.C. Gauntt Koen Binney & Kidd, LLP Gillespie Sanford LLP Goldfarb PLLC Grau Law Group, PLLC Grinke Stewart Law, PLLC Grogan & Brawner P.C. Guida, Slavich & Flores, P.C. Hahn Law Firm, P.C. Hargrave Family Law Henley & Henley, P.C. Herrera & Herrera Hitchcock Evert LLP Hoge & Gameros, L.L.P. Horton & Archibald, P.C. Hosch & Morris, PLLC Hunt Huey, PLLC Jackson Spencer Law PLLC Jenkins & Watkins, P.C. Johnston Tobey Baruch, P.C.

Kabani & Kabani, PLLC Kastl Law, P.C. Katie L. Lewis Family Law Kinser & Bates, L.L.P. Langley LLP Law Office of Andrew & Mark Cohn Law Office of Paul Zoltan Law Office of Ronald S. Rohde Law Offices of Frank J. Wright, PLLC Law Offices of Lustig and Hyman, P. C. Law Offices of Richard A. Gump, Jr., P.C. Lawrence Law PLLC Lemons & Hallbauer, LLC Lira Bravo Law, PLLC Lyons & Simmons, LLP Madson Castello, PLLC Maduforo & Osimiri, P.L.L.C. Marshall & Kellow, LLP McDowell Hetherington LLP Mincey-Carter, PC Mira | Blanton, PLLC Mullin, P.C. Murchison Law Firm, PLLC Musgrove Law Firm, P.C. Nathan Christensen PC Norris & Weber, PLLC Nowak & Stauch, PLLC Orenstein Law Group, PC Otstott & Jamison, P.C. Pace & Pace, L.L.P. Passman & Jones, P.C. Peeples & Kohler, P.C. Prager & Miller, P.C. Pyke & Associates, P.C. Pyne & Prather, P.C. Quaid Farish, LLC Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. RegitzMauck PLLC Riney Packard PLLC Ritter Spencer PLLC Robinson & Hoskins, L.L.P. Sawicki Law Schubert & Evans, P.C. Scroggins Law Group, PLLC Sessions, Israel & Shartle LLC Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Silverman Goodwin, LLP Simon | Paschal PLLC Smith, Stern & Friedman, P.C. Spencer, Johnson, & Harvell, PLLC Starr Law Firm, P.C. Stillinger & Godinez, PLLC Stromberg Stock, PLLC The Allen Law Group The Ashmore Law Firm, P.C. The Bhatti Law Firm, PLLC The DeLoney Law Group, PLLC The Heald Law Firm, PLLC The Law Offices of Frank L. Branson, P.C. The Nacol Law Firm, P.C. The Vermillion Law Firm, LLC Thomas, Cinclair & Beuttenmuller, PC Tremain Artaza PLLC Turley Law Firm Turton & Pinkerton, PLLC Vassallo & Salazar, P.C. Verner Brumley Mueller Parker, P.C. (McKinney) Voge Rohe PLLC

Webb Family Law Firm, P.C. Westerburg & Thornton, P.C. Wilson, Peer, Lark & Associates, PLLC Wisener Nunnally Roth & Higgins, L.L.P Wolff Law, PLLC Woolley Wilson, LLP. Wright & Associates Yarbrough & Elliott, P.C. 6 or More Attorneys Ackels & Ackels, L.L.P. Armstrong Divorce and Family Law, PLLC Bell Nunnally & Martin LLP Bradley Arant Boult Cummings LLP Bragalone Olejko Saad PC Burford & Ryburn, L.L.P. Burke Bogdanowicz PLLC Burns Charest LLP ByrdAdatto Caldwell, Bennett, Thomas, Toraason & Mead, PLLC Calhoun Bhella & Sechrest LLP Canterbury, PC Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Carter Arnett PLLC Cavazos Hendricks Poirot, P.C. Cobb Martinez Woodward PLLC Cole Schotz, P.C. Condon Tobin Sladek Thornton Nerenberg Connatser Family Law Cooper & Scully, P.C. Cowles & Thompson, P.C. (Dallas) Cowles & Thompson, P.C. (Plano) Cozen O’Connor Crawford, Wishnew & Lang PLLC David Allen Law Group DeHay & Elliston, L.L.P. Duffee + Eitzen LLP Durham, Pittard & Spalding, LLP Elliott Thomason & Gibson, LLP Estes Thorne & Carr PLLC Farrow-Gillespie Heath Witter, LLP Godwin Bowman PC GoransonBain Ausley PLLC (Dallas) GoransonBain Ausley PLLC (Plano) Griffith Barbee PLLC Griffith Davison, P.C. Hall, Render, Killian, Heath & Lyman, P.C. Harper & Bates LLP Hayward PLLC Hermes Law, P.C. Higier Allen & Lautin, P.C. Holmes Firm PC Johnston Clem Gifford PLLC Jones, Allen & Fuquay, L.L.P. Kane Russell Coleman Logan, PC Kershaw Anderson, PLLC Kilgore & Kilgore, PLLC Klemchuk LLP Koning Rubarts LLP KoonsFuller Loewinsohn Deary Simon Ray, LLP Lynn Pinker Hurst & Schwegmann Matthews, Shiels, Knott, Eden, Davis & Beanland, LLP Mayer LLP McCathern, Shokouhi, Evans, Grinke, PLLC (Dallas) McCathern, Shokouhi, Evans, Grinke, PLLC (Frisco)

McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Morgan, Lewis & Bockius LLP Munck Wilson Mandala, LLP Parsons McEntire McCleary PLLC Peckar & Abramson, P.C. Richardson Koudelka, LLP Riddle & Williams, P.C. Russell & Wright, PLLC Sargent Law, P.C. Shackelford, Bowen, McKinley & Norton, LLP Sheppard Mullin Richter & Hampton LLP Shore Chan LLP Slates Harwell LLP Sommerman, McCaffity, Quesada & Geisler, L.L.P. Staubus & Randall, L.L.P. Steed Dunnill Reynolds Bailey Stephenson LLP Stutzman, Bromberg, Esserman & Plifka, P.C. The Hartnett Law Firm Thiebaud Remington Thornton Bailey LLP Thomas, Feldman & Wilshusen, L.L.P. Tollefson Bradley Mitchell & Melendi, LLP Touchstone Bernays Udeshi Law Firm Verner Brumley Mueller Parker, P.C. (Dallas) Winstead PC Zelle LLP Ziegler Gardner Bell, PLLC Corporate Legal Departments Arcosa, Inc. Baylor Scott & White Health Borden Dairy Company Brink’s, Incorporated Compatriot Capitol Inc. Dunhill Partners, Inc. Gaedeke Energy HomeVestors of America, Inc. LALA U.S., Inc. North Texas Tollway Authority Rosewood Property Company Rosewood Resources, Inc. Sammons Corporation Sonida Senior Living, Inc. Government Agencies, Law Schools & Organizations City of Irving City Attorney’s Office CitySquare L.A.W. Center Dallas Baptist University Dallas College Legal Department Dallas County Probate Courts DII Industries, LLC Asbestos PI Trust UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law

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

A ugust 2022

Can “Fear” Majeure be Used to Cancel an Event or Contract? BY TY M. SHEAKS

In the wake of more recent natural disasters and the pandemic (we don’t talk about C-O-V-I-D; sorry Disney Dad joke) a number of businesses, events, and organizations are re-evaluating their underlying contracts and legal options for performance, postponement, or cancellation. There are some legally recognizable and enforceable excuses available under Texas law to refuse performance, such as force majeure, impossibility, impracticability, and frustration of purpose. But what happens when there isn’t an actual occurrence or there aren’t specific government restrictions to trigger a force majeure event to postpone or terminate an event or contract? Can the more recent trend of “fear” majeure be sufficient grounds to postpone or terminate an event? As any lawyer will tell you…it depends. Historically, force majeure events were commonly referred to as an “Act of God” or something beyond a party’s con-

trol that basically prevents or makes performance of one’s obligations “impossible, impracticable, or illegal.” Typical force majeure events or “acts of God” included occurrences such as floods, earthquakes, hurricanes, wars, strikes, or boycotts. Texas Courts generally analyze the specific terms of the contract to determine whether an event or occurrence will trigger a force majeure clause and relieve a party from its contractual obligations. Typically, if the applicable contract contains a force majeure provision, it depends on whether that provision was the “long” or “short” form (i.e., laundry list of specific events vs. broad catch-all language). Folks who did not have force majeure language in their contracts or did not have sufficient provisions have since revised the force majeure language to include additional key terms to invoke that provision in postponing or terminating events (i.e., referencing “disease, viral outbreak, epidemic or pandemic” vs. just COVID19, and/or referencing “governmental

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actions,” “emergency declaration” or “any law or action taken by a government or public authority”). Similarly, parties have trended towards the “long” form to more specifically detail possible events to trigger cancellation (i.e., severe storm warning/ watch, tornado, fire or wildfire, etc.). Even if you have a force majeure clause or recently beefed it up to clarify or add to the list of potential events can it be used to invoke postponement or cancellation in the absence of a specific weather occurrence or governmental restriction? Maybe and it depends. Specifically, it depends on whether the basis or reason for the “fear” is sufficient to invoke or fall within the force majeure language. For example, if the “fear” relates to a more generalized concern over say the chance of severe weather (which it’s Texas y’all so wait a minute and the weather will change) or the possible rise in infections related to a new variant or Monkeypox, but there is no actual occurrence or specific “governmental action” that warrants or mandates closure or cancellation of an event (or even if your event is in a location that has mandates against mandates for government shutdowns), what then? The likely answer is that it would not be sufficient or meet the threshold of impossibility or impracticability to equate to a force majeure event. However, if the underlying agreement contained language that specifically addressed the “worried artist” or “fear” issues then there might be sufficient grounds to invoke postponement or termination. For example, the recent wave of postponed or cancelled shows on Broadway for artists such as Sir Elton John cancelling shows after receiving a posi-

tive test were premised on specific language in the underlying agreements that allowed for last minute changes in scheduling. Same would be true for outdoor events that had to monitor and take into account severe weather events. Again, this can be addressed either initially in the contract, or by negotiating additional addendums or riders to the contract after the fact. Additionally, if attempting to invoke or respond to a “fear” majeure event one should also pay close attention to and comply with not only any formal notice requirements in the underlying agreements, but also applicable language if there are coinciding event cancellation or business interruption insurance policies. So, what happens if you are faced with a “fear” majeure possibility of postponing or cancelling an event or contract? First thing to do is check the operative agreement and see if there is a force majeure clause. Second, determine whether the basis for this event falls within that definition (and consulting with a good lawyer if need be). Third, double-check and confirm whether the notice period was proper and the actual notice was made in compliance with the contract. Fourth, determine where possible venue of any dispute would be (litigation vs. arbitration), what law would apply, and potential categories or limits on damages and possible recovery of attorney’s fees. Finally, it all comes down to effective communication and negotiation to determine whether it makes sense to postpone, cancel, or enforce the contract and potential litigation. HN Ty M. Sheaks is a Partner at McCathern, Shokouhi, Evans, Grinke, PLLC. He can be reached at tsheaks@mccathernlaw.com.

Log on to www.dallasbar.org for details.

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

CALABRESEBUDNER.COM

Au g u st 2 0 2 2

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

Focus

A ugust 2022

Appellate Law/Business Litigation

Does “No” mean “Yes”? Errata Sheet Changes to Oral Depositions BY BRIAN P. LAUTEN

You depose the adverse party, obtaining valuable proof germane to a pending claim or a defense; however, a few short weeks later, you receive an errata sheet from the court reporter, where serial changes have been made to the testimony, adversely impacting your case. What now? There is a procedural framework to curb errata sheet abuses and to protect the impacted party. Texas Rule of Civil Procedure 203 and Federal Rule of Civil Procedure 30(e) govern errata sheet changes to oral depositions in state and federal court, respectively, and both rules are substantially similar. Notably, an oral deposition is not a take home test. In order to change a sworn answer in an errata sheet, the deponent must provide a reason for the change, which is not conclusory. Tex. R. Civ. P. 203.1(b). But even when errata sheet changes are made, the oral deposition testimony stands and it

may be used throughout the case, on cross examination, and read to the jury at trial. Thus, the deponent did not erase his or her oral deposition answers; on the contrary, the deponent actually impeached him or herself by serving the errata sheet changes. The best judicial discussion of the rights and remedies available when there are errata sheet abuses is United States Magistrate Judge Irma Ramirez’s tour de force opinion in, Reilly v. TXU Corp., 230 F.R.D. 486, 487-92 (N.D. Tex. 2005). To summarize, there are generally three potential remedies: 1. First, if the errata sheet changes make the deposition “incomplete or useless without further testimony, the party who took the deposition can re-open the examination.” Furthermore, the party who changed the testimony should be ordered to pay the costs and attorney’s fees associated with a subsequent deposition. Reilly, 230 F.R.D. at 491. 2. Second, at least one federal court has

held that abusive errata sheet changes may result in the striking of the errata sheet in toto. See, e.g., Greenway v. Int’l Paper Co., 144 F.R.D. 322, 323-35 (W.D. La 1992) If no reasons are provided for the errata sheet changes, the trial court can also strike the errata sheet on this ground alone. 3. Finally, if the lawyer is ghost-writing the testimony for the client in the errata sheet, there is no attorney-client privilege and those communications may be reviewed in camera and ultimately compelled. Indeed, the party who took the deposition may ask the witness, “about the reasons for the changes and the source of the changes, such as whether they came from …[the witness] himself or his Counsel.” Reilly, 230 F.R.D. at 491 (emphasis added). Importantly, Rule 203 (state court) and Rule 30(e) (federal court) allow the witness to change an answer; on the contrary, neither rule authorizes the lawyer to make

that change for the witness. It would be remiss not to illuminate the interplay of summary judgment practice with errata sheet changes. Notably, if a party moves for summary judgment based upon the oral testimony, and errata sheet changes are served after the motion is filed which conflicts with that testimony, the errata sheet may be disregarded under the “sham-affidavit” doctrine. Trial lawyers should be very cautious about filing errata sheets with respect to their party’s prior witness testimony. Conversely, when served with an errata sheet, counsel should be cognizant of the foregoing concepts to ensure their client is not unfairly disadvantaged, while ensuring that they are prepared to use the errata sheet to their benefit. HN Brian P. Lauten is a Shareholder at Brian Lauten, P.C. He can be reached at blauten@brianlauten.com.

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Dallas Bar Association

A FIRESIDE CHAT:

HOW OUR DIFFERENCES BRING US TOGETHER

TUESDAY, SEP TEMB E R 27 12:00 - 1:00 P M AT ARTS DIST R IC T M A N S IO N MCL E: 1.00 DEI ET H IC S

DVAP’s Finest CHRISTINA JENKINS Christina Jenkins is a sole practitioner.

1. How did you first get involved in pro bono? In 2007, the housing market crashed. Our mortgage banking clients were disappearing overnight and our firm had a massive layoff. At times, there was no work to do. I had already attended some DVAP CLEs, so I asked my managing partner if, during down time, I could work on DVAP cases. He said “go for it.” So, I did. To this day, I’m still not sure he knows just how many cases I worked on! 2. Describe your most compelling pro bono case. One of my first cases was the most compelling. A senior citizen whose identity was stolen sued the thief and won, but the thief ignored the judgment. We successfully obtained the judgment funds from her bank account. It was amazing to get the phone call from the thief (who we had been calling for weeks to no avail) after she went to the bank to withdraw funds she expected to be in her account. I felt an enormous sense of pride when driving from Dallas to Mabank to hand that check to the client. 3. Why do you do pro bono? I believe that lawyers can level the playing field for those who cannot do it for themselves. Over the years, I’ve learned that, to me, service is a moral obligation and duty.

Doug Parker

Chairman of the Board of Directors and former CEO American Airlines Group

JacqueRae Sullivan Flight At tendant Southwest Airlines

Moderated by Nnamdi M. Anozie, Anozie, LLP.

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4. What impact has pro bono service had on your career? As a young lawyer, working on pro bono cases gave me a sense of ownership and control that I could not yet exercise within my firm. I gained confidence in approaching legal issues, learned the art of associating counsel when needed, and developed legal skills and abilities beyond those learned from my transactional practice. Most importantly, I learned that anyone could be a good lawyer; but being a great lawyer takes time, development, and a willingness to never stop learning. 5. What is the most unexpected benefit you have received from doing pro bono? I never expected to be uplifted and receive encouragement from the DVAP clients. That was rich. Some of the clients had so much hope in the middle of an awful situation. Others were full of gratitude and trusted me and my judgment. That was just what I needed as a young associate whose industry had been gut punched by the mortgage crisis. The market roared back, I was promoted in my firm, and then in 2020, launched my own mortgage banking compliance/real estate law firm. One of my past DVAP clients found out I started my law firm and called to congratulate me, saying, “You’re so good, I know you will be successful!”

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.

Au g u st 2 0 2 2

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

fighting every day for every person

Mike Sawicki | Legal Counsel

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

Focus

A ugust 2022

Appellate Law/Business Litigation

Recent Developments in Texas Personal Jurisdiction BY DAVID COALE AND KYLE GARDNER

This article summarizes two recent commercial cases that explain when a Texas-based court can exercise jurisdiction over an out-ofstate defendant, involving contract negotiation, contract performance, and online commerce conducted through a website.

Contract Negotiation

In Danziger & De Llano, LLP v. Morgan Verkamp, LLC, 24 F.4th 491 (5th Cir. 2022), a Texas law firm sued an Ohio law firm over a fee agreement. The Fifth Circuit affirmed dismissal for lack of personal jurisdiction over the Ohio firm. One of the Texas firm’s claims was for fraud. The Fifth Circuit held that even if the Ohio firm’s conduct “may have affected [the Texas Firm] in Texas, none of this conduct occurred in Texas.” The court relied on Walden v. Fiore, 571 U.S. 277 (2014), which found no jurisdiction over an out-of-state defendant in Nevada when “no part of [the defendant’s] course of conduct occurred in Nevada.” The Texas firm cited an earlier Fifth Circuit case, Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir. 1999), in which a Texasbased airline sued a German resident for fraud. The Fifth Circuit distinguished this case, noting that the Brandt defendant had “performed

several tortious actions outside of Texas” with “foreseeable effects in the forum . . . directed at the forum” by directing allegedly misleading letters, faxes, and phone calls to Texas.

Contract Performance

In Danziger, the Texas firm also sued for breach of contract (of the fee agreement). The Fifth Circuit identified two main reasons why that alleged agreement could not support Texas jurisdiction. First, the contemplated relationship did not involve “wide reaching contacts and contemplated future consequences within the forum state,” and “‘[t]he plaintiff’s Texas location’ was not ‘strategically advantageous to the defendant.’” Second, the court noted that “[t]he only alleged Texas contacts related to contract formation or breach are [the defendant’s] conference calls negotiating the agreement while [the plaintiff] was in Texas.” If a contracting party’s Texas location is not relevant to a party’s decision to enter a contract, the mere fact that the party is located in Texas is unlikely to establish jurisdiction.

Online Commerce

The Dallas Court of Appeals, in Shopstyle, Inc. & Popsugar, Inc. v. rewardStyle, Inc., 2020 WL 4187937 (Tex. App.—Dallas July 21, 2020, no pet.), found that a Texas court could not exercise personal jurisdiction

over the out-of-state operators of a popular website. The court focused on three points: (1) the continued viability of the widely cited Zippo case, (2) the relevance of the claimed jurisdictional contacts to the substantive claims, and (3) the proper weight for business activity by third parties. First, the Zippo opinion developed a “sliding scale” test for personal jurisdiction. It described a “spectrum,” where “[a]t one end are situations where a defendant clearly does business over the Internet . . . involving the knowing and repeated transmission of computer files over the Internet,” while “[a]t the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions.” Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). Zippo has fallen into disfavor. The Dallas court noted a growing line of authority that “there needs to be more than the existence of a website (whether interactive or not) to support an inference that the forum was targeted by the website owner.” The court then examined the Texas contacts that the plaintiff cited to support Texas jurisdiction and found them insufficiently related to the “operative facts” of the substantive claims in the case. On the merits, “[t]he focus would be on issues such as whether PopSugar obtained content from

rewardStyle without consent; whether PopSugar used that content; whether PopSugar profited from such use; and whether rewardStyle suffered an injury.” The court did not see those issues as related to the operational details cited to support jurisdiction. Finally, the court considered how much weight to give evidence showing that the defendants’ sites use “hyperlinks that take viewers to the websites of third-party affiliated retailers where a consumer can purchase the linked products.” The court declined to give this topic much weight in the analysis of jurisdiction. It applied the principle, discussed earlier, that “only the defendant’s contacts with the forum are relevant, not the unilateral activity of another party or third persons,” and thus held that the hyperlinks at issue would not support Texas jurisdiction.

Conclusion

These two cases confirm that personal jurisdiction must be based on the acts of the defendant itself, and not merely on those of unrelated parties who may have business dealings with the defendant. HN

David Coale leads the appellate practice at Lynn, Pinker, Hurst & Schwegmann LLP, and Kyle Gardner is an Associate at the firm. They can be reached at dcoale@lynnllp.com and kgardner@lynnllp.com, respectively.

Jurist of the Year – Justice Ken Molberg CONTINUED FROM PAGE 1

2016 recipient of the Charles J. Murray Outstanding Jurist Award from the

Tarrant County Trial Lawyers Association. For four of those years, he served as Local Administrative District

Two Two Texas Texas Regions. Regions. Two Must-Have Bench Books.

Two Must-Have Bench Books.

ounty Harris CBook Bench 2022

ers ung Lawy uston Yo tion of the Ho r Associa Project uston Ba A Joint and Ho n tio Associa

21 3:53:40

5/26/20

TX Harris

County

d 1

Bench Book_C

over.ind

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Judge for all Dallas County’s 39 District Courts. He was previously the Presiding Judge of the Civil District Courts of the county for three terms, is a former member of the State Bar’s Pattern Jury Charge Committee, cochairing the subcommittee on Labor and Employment Law, a member of the American Board of Trial Advocates, a founder and past-president of the Texas Employment Lawyers Association, a former longstanding member of the Dallas Trial Lawyers Association, past director and director emeritus of the Texas Trial Lawyers Association, Life Fellow of the Texas Bar Foundation, Life Senior Fellow of the Dallas Bar Foundation, former member of the Dallas County Juvenile Board, and the Dallas County IT Executive Governance Committee. On November 6, 2018, after serving the previous 10 years as the Judge of the 95th Judicial District Court of the State of Texas, he was elected to the Fifth District Court of Appeals. During his time on the bench, Justice Molberg has been a frequent speaker at CLEs sponsored by the State Bar of Texas, the University of Texas

School of Law, the DBA Trial Academy, and other entities, primarily regarding trial practice. He has been an active sponsor, participant, and promoter of various mock trial programs at the high school, college, law school and young lawyer levels. Above all, he is proudest of his family—his wife of 47 years, Linda, a registered nurse, and their four grown children. How do we celebrate a life so rich, yet so giving? I’m humbled to have even been asked to write this article. A thousand thank yous wouldn’t come close. Justice Molberg is the epitome of what an everyday hero should be: folksy, talented, humble, generous, intelligent, usually right, but above all, truthful and genuine. This year, it is our honor and privilege to celebrate the sacrifices, fortitude, and living legacy of Justice Ken Molberg, your Dallas Bar Association Jurist of the Year. It couldn’t be more well-earned or deserved. Thank you for your service, and congratulations! HN Adam M. Swartz is managing attorney at SwartzïDavidson, PLLC. He may be reached at adam@swartzdavidson.com.

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Column

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Ethics

Is There a “Duty to Correct” Inconsistent Testimony at Deposition? BY HERSHEL R. CHAPIN

A Recent Non-Binding Ethics Opinion shines light on situations involving the advocate’s legal duties involving inconsistencies within client deposition testimony. The Professional Ethics Committee for the State Bar of Texas Opinion No. 692 (October 2021) addresses a fact pattern wherein a client had previously “admitted” during a private meeting with his counsel that something happened, but later during the opposing counsel’s deposition “intentionally” contradicted the statement. The fact pattern states that the client’s lawyer subsequently does not attempt to offer or use the statement, the client merely makes the statement during deposition. Based on these specific facts, the Opinion concludes that the lawyer’s “silence” at the deposition does not “trigger” TDRPC Rules 3.03 or 4.01. Taking the reasoning of the Opinion one step further, it is clear that if any part of such false testimony were to be used or offered in any other context by the lawyer, it would be incumbent on the lawyer to, at minimum, persuade his client to withdraw or correct the statement and explain the civil and criminal ramifications of making a false statement, and failing remedial action, to withdraw from representation. The lawyer may also have professional discretion to disclose facts under Rule 1.05(c). One of the issues Opinion No. 692 raises is the concept that, in Texas, the duty of “Candor Toward the Tribunal” (Rule 3.03) does not appear to be trig-

gered by cross-examination of his client at a deposition. First, the client’s lawyer has made no statement, the client did. The second, (more counter-intuitive) reason is because of the TDRPC’s absence of Comment 1 to ABA Model Rule 3.3 which specifically includes “ancillary proceedings….” Rather, the operative rule is more likely to be Rule 4.01 (“Truthfulness in Statements to Others”). The Opinion also examines the issue of the lawyer’s possible participation in his client’s perjury: the Committee reasons that Comment 13 to Rule 3.03 provides a kind of safeharbor for the lawyer who is not the one introducing what he knows to be false evidence in a non-deposition testimony context. Despite the seemingly more stringent language of Rule 4.01(b) regarding failure to “disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client,” the Committee reaches the conclusion that mere lawyer silence is not “participation” in unlawful activity (for disciplinary purposes) at a deposition where he is not the one eliciting the testimony. It is also important to consider what the Opinion leaves out of its analysis. Opinion No. 692 assumes, without giving any basis why, that the lawyer knew his client was lying. But not all situations are quite so crystal clear. Rules 3.03 and 4.01 both contain knowledge requirements. It is important to note that the TDRPC’s “Terminology” section

defines “Knowingly,” “Known,” or “Knows” as follows: “denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Under this definitional framework, how does the lawyer attain sufficient knowledge of the falsity of the client’s inconsistent deposition statement absent corroborating evidence? Is it not possible for individuals to mis-remember events during the first retelling? Indeed, one of the purposes of a deposition is to obtain an individual’s “official” statement/recollection for comparison purposes for this very reason. Moreover, are not individuals sometimes able to recall things that they could not or would not recall earlier under skillful examination during deposition? Given the apparent preponderance of psychological literature concluding that acute stress hinders—rather than aids—memory retrieval, one could easily encounter a situation where the initial meeting with the lawyer was more stressful than a less confrontational deposition conducted by a talented opposing counsel. Perhaps the relative comfort of the deposition is is conducive to a more accurate memory, or perhaps the exam-

iner is able to re-create the mental state the deponent was in during the formation of the memory, prompting a more detailed recollection? The latter phenomenon has been observed in psychological studies and goes by the name “state-dependent memory” or “state-dependent retrieval.” In light of TDRPC Preamble Provision 3 (“In all professional functions, a lawyer should zealously pursue client’s interests within the bounds of the law.”), is it not the lawyer’s duty, so-to-speak, to give the client the benefit of the doubt? Nevertheless, despite its blind spot regarding the application of knowledge requirements, Opinion 692 is important because it carefully parses the TDPRC’s language to reach its reasoning that, indeed, in Texas, depositions operate under a slightly different ethical framework as compared to trials. The Opinion is a handy guide on the application of Rules 3.03 and 4.01—and offers a good deal of practical advice for Texas lawyers contending with their intersecting professional duties of zealous advocacy and candor. HN Hershel R. Chapin, of H.R. Chapin, Attorney & Counselors, can be reached at hchapin@gmail.com.

Creating Trauma Informed Lawyers, Judges and Partners: An Interactive Trauma Training Judge Carole Clark, the Pioneer of Trauma Court Hosted by Judge Rhonda Hunter Friday, September 16, 9:00 a.m. – 5:00 p.m. Arts District Mansion 2101 Ross Avenue, Dallas MCLE 6.00, pending Free training for attorneys and professionals dealing with trauma in court cases. Lunch buffet available for $16.50 | www.dallasbar.org

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Summer Activities at the Arts District Mansion We’ve had a busy summer! Between hosting several summer law clerk programs and luncheons, the DBA has also hosted hundreds of CLEs, participated in building a home for Habitat for Humanity, kicked off our DBA We Lead 2022 Class, and was honored to receive the “Together We” Organization Unity Award. For a list of upcoming programs, log on to dallasbar.org. We hope to see you soon!

UP TO 7 HOURS MCLE INCLUDING ETHICS MEET YOUR JUDGES AWESOME NETWORKING TRIAL LAWYER OF THE YEAR AND JURIST OF THE YEAR AWARDS

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D al l as Bar A ssoci ati on l Headnotes 27

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Recovering Attorney’s Fees: Changes to Chapter 38 BY ALEX GEBERT AND KAYLA SHERRILL

Under Texas law, recovery of attorney’s fees must be permitted by contract or statute. For a breach of contract, Chapter 38 of the Texas Civil Practice & Remedies Code provides a method for recovery if the contract did not specifically permit recovery of attorney’s fees. Portions of Chapter 38 had previously been interpreted to preclude recovery of attorney’s fees from LLCs or Partnerships, and potentially render a defendant liable and uncovered for an award of attorney’s fees against them in breach of construction contract cases. To address these issues, the 87th Texas Legislature passed two bills clarifying and refining the boundaries of Chapter 38. The first bill, HB1578, took effect on September 1, 2021, and now allows parties to recover attorney’s fees regardless of the type of business entity the defendant is. HB1578 applies to lawsuits filed on or after the date when the bill took effect. The second bill, HB2416, also taking effect at the same time, added recovery of attorney’s fees as compensatory damages for the breach of a construction contract. HB1578 fixed language in Section 38.001 of the CPRC on what types of business entities plaintiffs could recover attorney’s fees from. HB1578’s passage came after its first three unsuccessful attempts to make it through the legislature. Prior versions of Section 38.001 only provided for the recovery of attor-

Day of Civility Tuesday September 20, 2022 Civility is the Hallmark of Professionalism Sponsored by the DBA Morris Harrell Professionalism Committee

ney’s fees against individuals and corporations, leaving a subset of entities that were not a corporation or an individual potentially unaccounted for. The legislature acknowledged this and integrated the Texas Business Organization Code Section 1.002’s definition of an “organization,” into CPRC Section 38.001, in place of where Section 38.001 previously had “corporation.” This change increased the reach of Section 38.001, which now includes corporations, limited or general partnerships, LLCs, business trusts, REITs, joint ventures, joint-stock companies, cooperatives, associations, banks, insurance companies, credit unions, savings and loan associations, or other organizations, regardless of whether the organization is for-profit, nonprofit, domestic, or foreign. However, this new amendment excludes the recovery of attorney’s fees sought against quasigovernmental entities, religious organizations, charitable organizations, or charitable trusts. Even with those limitations, this welcomed change closed the door on any gamesmanship to avoid recovery of attorney’s fees against a party who is neither a corporation nor an individual. HB2416 added Section 38.0015, a new provision to Chapter 38 of the CPRC. This included classifying the recovery of attorney’s fees as compensatory damages for the breach of a construction contract. With this change, insurance companies became responsible for paying the prevailing party’s attorney’s fees rather than

SAVE THE DATE

a prior Texas Supreme Court Ruling (In re Nalle) which was believed to leave contractors potentially liable for possible large awards of attorney’s fees themselves, including in the event a claim was not covered by insurance. HB2416, and the addition of Section 38.0015 to the CPRC that it produced, now places insurance carriers responsible for paying the attorney’s fees of a prevailing party, in connection with covered claims. Adding 38.0015 should underscore those contractors who do not prevail in lawsuits on covered claims to be aware of any court’s final ruling to ensure the insurance carrier and not the contractor is responsible for attorney’s fees awarded to the prevailing party. The new section 38.0015 poses unique consequences for the construction industry, including general contractors, design professionals, and owners. Because construction cases can involve many parties, cross- and counterclaims, and different causes of action, the parties should pay special consideration to the issue of recovering attorney’s fees under Chapter

38. In particular, the breach of a construction contract can now result in the recovery of attorney’s fees as compensatory damages. These changes and all future evolutions of Chapter 38 will affect contract drafting, negotiations, and alternate dispute resolution strategies moving forward. While the benefit of these changes to Chapter 38 may only seem to apply to claimants and plaintiffs, all contracting parties should be mindful of these changes as they could find themselves defending a lawsuit and the appropriateness of recovering attorney’s fees under Chapter 38. All parties should consider handling the question of attorney’s fees upfront via contractual provision. By clarifying, refining, limiting, or specifying one or both parties’ ability to recover attorney’s fees, parties can put themselves in the best situation to prevent these changes to Chapter 38 from being used against them. HN Alex Gebert and Kayla Sherrill are Associates at Ziegler Gardner Bell, PLLC. They can be reached at agebert@zgblaw.com and ksherrill@zgblaw.com, respectively.

NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.

AN ETHICS PRIMER FOR LAWYERS Hybrid Program

FRIDAY,AUGUST 12, NOON ARTS DISTRICT MANSION | ETHICS 1.50

Robert Tobey, Johnston, Tobey, Baruch Russell Wilson III, The Law Offices of Russell Wilson II Co-Sponsored by the CLE & Minority Participation Committees Register at www.dallasbar.org Questions? yhinojos@dallasbar.org

ECL Attorney Spotlight SAKINNA THOMAS HUNTER

DBA COMMUNITY INVOLVEMENT COMMITTEE

DAY OF SERVICE SATURDAY, SEPTEMBER 24

Save the date to volunteer for service projects at New Friends New Life, NTX Food Bank, Salvation Army, a Local Animal Shelter & More!

Questions? Contact Joe Hoffman joseph.hoffman@kattenlaw.com or Jessie Smith jessies@dallasbar.org

ECL member SaKinna Thomas Hunter has always desired to give make access to quality legal counsel available to everyone. Before moving to Texas, Ms. Thomas worked in the criminal modest means program in conjunction with the Indianapolis Bar Association and the Marion County Bar association. Through Ms. Thomas’s pro bono efforts with the criminal modest means program, she successfully won a published appeal in which she was trial counsel and appellate counsel in the Indiana Court of Appeals in the case of Melvin Washington v. State of Indiana (Court of Appeals, Indiana, 3/4/2010). SaKinna’s foundation began with undergrad studies at Prairie View A&M University Class of ‘99 where she graduated magna cum laude and received her J.D. in 2002 from Indiana University-Bloomington where she was a CLEO Grad. She graduated cum laude in the top 30 percent of her class and was a member of the Order of the Barristers. SaKinna Thomas is currently the lead attorney of her team, Thomas Hunter Legal Group in Dallas County, where she practices Criminal, Family, and Probate law. She prides herself in taking an emotionally intelligent approach to helping her clients get through these difficult legal situations whether it be a felony charge or incarceration, a divorce, or a death in the family. As a member of the ECL Class of 2021-2022, she has begun to broaden her practice to ensure that her mission, as well as ECL’s mission, of representation of everyday people is achieved for the DFW community.

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Focus

D al l as Bar A ssoci ati on l Headnotes 29

Appellate Law/Business Litigation

Top 10 Mistakes to Avoid on Appeal BY RUSTY O’KANE AND ALEXANDRA WAHL

An appellate brief is an opportunity to ensure that justice is done and righteousness carries the day. However, if you’re not careful, it is a landmine of opportunities to snatch defeat from the jaws of victory. This article presents the Top 10 things you can do to make your brief stand out from the rest—and avoid common mistakes driving appellate courts crazy. 1. Don’t Appeal Non-Appealable Judgments or Orders. Although it can be challenging to determine whether an order or judgment is final and appealable, failing to correctly make such determination can be costly. A judgment is final if it actually disposes of all parties and claims at issue or expressly states that it disposes of all claims and parties in the lawsuit (even if it does not). Don’t spend a year briefing the case only to later realize the appellate court never had jurisdiction. 2. Don’t Miss Your Deadline! Even seasoned attorneys miss appellate deadlines because they failed to read the rules. Different types of appeals and different events—like the date the clerk’s and reporter’s records are filed—trigger different deadlines. Determine if you have an accelerated or non-accelerated appeal, and confirm the associated briefing deadlines. When you only have one shot, late filing can be disastrous. Read! The! Rules! 3. Don’t Bury the Lead. You have justice on your side. Don’t mess it up by hiding your best argument. If your argument hinges on a dispositive issue that wins the day, say it up front. Identify your

key players and defined terms early so the Court knows who and what is important and can follow along. And don’t forget to frame your argument within the standard of review. 4. Do Cite Check!!! Now that you made great points, support them. Sounds easy, but it is a common blunder. The law according to “I’ve been doing this for 30 years” is not persuasive. There is no faster way to lose credibility than failing to support your argument with proper citations. Does that case you cite really say what you claim it says? Review the clerk’s record for inaccuracies or omissions, and ensure it contains all the relevant pleadings you need. And do yourself a favor—avoid the panic that accompanies a last-minute attempt to supplement the record. 5. Don’t Over/Under Brief. It is easy to get bogged down in unnecessary details when you have lived and breathed a case. Do not overload your story with irrelevant minutia that dilutes your appellate points. Context is good, but carefully craft your statement of facts so they are accurate, supported by the record, favorable to your client, and targeted to your arguments. It is a delicate balance but one that will be appreciated by your panel of justices and their staff attorneys. 6. Don’t Overload the Appendix. The appendix is a roadmap of evidentiary support you want to bring to the Court’s attention. Extraneous items outside the record cannot and will not be considered—so, as much as you may want to include them, don’t. 7. Do Preserve Error. If you preserved error in the trial court, highlight it for the appellate court and cite to every instance

in the record to support the preservation. It is one of the first things the Court will look for, so make it easy to spot. 8. Don’t File Unnecessary Motions. This is not the trial court. Unnecessary motion practice will only cause eye rolls. Stick to your briefing. 9. Do Assume the Panel Has Read Your Brief. Trial attorneys continue to insist on treating oral argument in the Court of Appeals like a jury trial. It is not. You can rest assured the justices are prepared for oral argument and have read the briefs. Reading your brief or tediously rehashing each fact and argument is a waste of your allotted time. Prepare accordingly and highlight your major points. Take signals from the panel and be prepared to pivot the focus of the

argument as needed. 10. Don’t Ask the Court About The Status of Your Appeal. The Court and its staff are juggling dozens of cases with little time to babysit. Be patient. Easier said than done, but many of these mistakes in briefing and argument can be avoided by putting yourself in the Court’s shoes. What do they want to know? What questions might they ask? What legal or policy arguments might arise? What are your weaknesses? Keep it sharp, simple, supported, and persuasive to stand out from the rest and take the win. HN Rusty O’Kane is a Partner at Wick Phillips Gould & Martin, LLC and board-certified in civil appellate law. He can be reached at rusty.okane@wickphillips.com. Alexandra Wahl is an Attorney at the firm and can be reached at alex.wahl@wickphillips.com.

37th Annual Review of Energy Law August 4-5, 2022, Arts District Mansion Register at www.reviewofoilandgaslaw.com Sponsored by the DBA Energy Law Section

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Community

Projects

Dallas Bar Association Community Involvement Committee Add these 2022 Projects to your calendar!

Day of Service

SEPT September 24 - Service projects will

be available at New Friends New Life, NTX Food Bank, Salvation Army, a Local Animal Shelter & More!

Blood Drive

OCT October 26 at the Arts District

Mansion & other sites in Dallas. Donate blood and save lives with Carter BloodCare.

Sand Branch Food Drive

NOV November 28 to December 16 to DEC Donate canned & non-perishable food items to benefit the Dallas County Sand Branch Community.

DEC

Santa Brings a Suit December 2 - Donate gently used business attire. Benefiting the Dallas Life Foundation.

For up-to-date information, check the online calendar at: DallasBar.org

Questions? Contact Jessie Smith jessies@dallasbar.org

TOGETHER, WE CAN MAKE A DIFFERENCE. Access to justice is hard to come by. There is less than one full-time legal services attorney for every 7,100 Dallas citizens living in poverty. That means that if you filled AT&T Stadium to its maximum capacity, you’d have 11 attorneys to service them. And if each client received a single 30-minute session, it would take those attorneys nearly five months of round-the-clock work, with no breaks, just to meet with everyone. That’s where DVAP comes in. DVAP provides access to justice by recruiting, training, and supporting over 1,200 volunteer attorneys each year who take meaningful time from their “day jobs” to provide pro bono legal aid to low-income people in Dallas County.

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Find out more at dallasvolunteerattorneyprogram.org

Find what you need in the DBA Online CLE Catalog Anytime - Anywhere!

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D al l as Bar A ssoci ati on l Headnotes 31

Appellate Law/Business Litigation

Creating An Accurate Reporter’s Record in a Virtual Trial BY HON. EMILY MISKEL

During the first year of the pandemic, Texas courts held more than a million virtual hearings. My court has held more than 300 remote bench trials. Remote proceedings can present new challenges for ensuring that the record is correct for appeal.

Inaudible Audio

Videoconferencing connection quality varies widely. Every court participant should appear by video and audio so the court reporter can see the person’s mouth. It’s best to practice with each witness in advance to ensure the witness has a quality connection and the technical competence to properly operate the videoconferencing platform. Virtual transcripts frequently include instances of “inaudible,” “unintelligible,” or “audio disruption.” If a critical word was missed or misheard, Tex. R. App. P. 34.6(e) governs inaccuracies in the reporter’s record. Inaccuracies may be corrected by agreement of the parties, or, with notice and hearing, the court can correct the inaccuracy. Since Texas trial courts dispose of dozens of cases each week, the hearing should be set quickly to improve the chances that the trial court may recall the testimony. If the dispute arises after the reporter’s record has been filed in the appellate court, the appellate court may submit the dispute to the trial court to resolve.

Corrupted Electronic Exhibits

An electronic exhibit may become corrupted or inaccessible. Even in traditional in-person trials, attorneys or witnesses occasionally leave the courthouse with original

exhibits. Tex. R. App. P. 34.6(f) offers a solution for portions of the reporter’s record that have been lost or destroyed. The exhibit can be replaced by agreement or with a copy determined by the trial court to accurately duplicate the original exhibit. If an electronic exhibit was published at trial and the court reporter later discovers that her copy is corrupted, the exhibit can be replaced with a duplicate.

Access to Video or Audio Recordings of Hearings

Now that audio and video recordings of hearings and trials exist, parties are naturally curious about how they can obtain and use them. Parties cannot compel a court to produce the court’s copy of trial recordings. Rule 12 of the Texas Rules of Judicial Administration governs Public Access to Judicial Records. The rule includes procedures for requesting judicial records from courts, but it expressly excludes records that relate to matters before the court. Therefore, parties do not have the ability to compel a court to preserve or produce any recording that a court makes of a hearing or trial. Virtual court participants are generally prohibited from recording court proceedings themselves, although courts do not have technical tools to prevent it. Tex. R. Civ. P. 18c implies that recordings may only be made if permitted by the trial court, and it is common practice in courtrooms to prohibit parties from recording court proceedings. Further, under Tex. R. App. P. 34.1, the appellate record consists of the clerk’s record and the reporter’s record. Extra audio or video recordings of a trial are not part of the appellate record.

Contemporaneous Objections

Videoconferencing software has been optimized to reduce noise while one speaker is speaking. In virtual trials, when a witness is speaking, and an attorney says “objection,” often that single word cannot be heard. Trial attorneys can visually wave or repeat “objection” so the court knows to address it. In general, participants need to be aware of this lag and speak more slowly, enunciate more clearly, and take care to not speak over each other. Attorneys should not assume a court is purposefully ignoring an objection, and should repeat an objection, if necessary, to ensure it is addressed and not waived.

Exhibits Displayed but not Admitted into Evidence

Sometimes a video trial can feel more informal than an in-person trial. Parties may refer to evidence that has not been admitted, screenshare documents, hold up notes, or try to play recordings that are not in evidence. Trial attorneys can help ensure a clear record by objecting to anyone pub-

lishing or referring to evidence that has not been admitted.

Local Rules

Many courts have Zoom hearing instructions or detailed local rules for remote hearings. Be sure to review them well before the hearing. Since participants may join the hearing by telephone instead of video, some courts require exhibits to be exchanged electronically in advance, while other courts will accept electronic exhibits the same day as the hearing. Trial lawyers would not want important evidence to be excluded because they did not timely exchange it.

Conclusion

Remote video trials may seem unfamiliar or intimidating, but there is generally a solution for every problem. Attorneys should be ready to speak up promptly if there is a concern and offer the court a proposed solution. HN

Emily Miskel is the judge of the 470th District Court. She can be reached at emily@emilymiskel.com.

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